International Democracy Day

Lord Triesman Excerpts

Wednesday 14th September 2011 Lords Chamber

[Lord Howell of Guildford]

I am asked whether I can comment on that. I can’t and, in fact, I won’t, because these are matters not only for usual channels but for managers of business in both Houses. I add a general point: I think that it was Mr Churchill who said that democracy was the worst system except all others. It is certainly not perfect; it can be constantly improved. We try in both our Houses to do that, but how it should be done is not for me to advise.

[Lord Triesman]

My Lords, I welcome the fact that the Foreign Secretary will make the Statement that has been promised. Like the noble Viscount, Lord Montgomery, I have looked at the IPU’s plans. It has encouraged parliaments and Governments around the world to organise activities for tomorrow, particularly directed at young people and students and focusing on democracy and human rights. That is obviously resonant given the events of the year—the growth of democratic demands and the Arab spring. While I am delighted to know that people who are in post around the world will be twittering, could we be told what events have been organised by the Government for young people and students, as the IPU suggests and at the request of Ban Ki-Moon, and where we might learn about them on any government website?

[Lord Howell of Guildford]

I could not speak about the detail of youth organisations, but it is obvious that vast numbers—billions—of young people need to be encouraged in the values of democracy throughout the world and we play our part. On specific propositions on the website and elsewhere, I shall have to write to the noble Lord.

Libya

Lord Triesman Excerpts

Tuesday 13th September 2011 Lords Chamber

[Lord Howell of Guildford]

The right reverend Prelate is absolutely right. These are very important issues, which we are raising all the time in our discussions and in the support that we are seeking to give. We do not want to cross the borderline between support and reinforcement of the new Libya, if that is what is going to emerge—the business is yet unfinished, as noble Lords know. We do not want to cross the line into telling the Libyan people what to do, as they own the procedure. However, they do respect these values, and we will certainly make those points to them in our continuing dialogue.

[Lord Triesman]

My Lords, the Libyan Prime Minister Mahmoud Jibril said on Monday that the National Transitional Council has mapped out a path forward and he added that this is no time for revenge. I note today that Donatella Rovera of Amnesty reports widespread systematic violence perpetrated by former rebel forces, including in the areas that they have controlled for over six months. It is an alarming report. Will the Minister tell the House in rather more detail what has emerged in discussion with the NTC about the main planks of its plan, whether he believes that the resources exist to deliver that plan and what the United Kingdom is saying to the NTC about violent crimes being committed by the NTC’s forces?

[Lord Howell of Guildford]

We have noted that report and the reports from the UNHCR about allegations of atrocities. We think all these things should be investigated. It is worth remembering that the International Criminal Court is remitted fully by UN Resolutions 1970 and 1973 to investigate these allegations, and we understand that it is doing so. If it is necessary, we will certainly encourage it to do so, but I think it is going ahead with the job anyway.

European Union Bill

Lord Triesman Excerpts

Wednesday 13th July 2011 Lords Chamber

[Lord Williamson of Horton]

My Lords, we have not proposed any amendment to Motion A, which has been moved by the noble Lord, Lord Howell of Guildford. Accordingly, we accept the decision of the House of Commons to refuse any role for Parliament in the event—a perhaps rather unlikely event—of a referendum with a small or even derisory turnout. It is regrettable that, not just in relation to this Bill but in relation to other issues more widely, we have not established how we might deal with such cases. As we see in the Localism Bill and elsewhere, the referendum is likely to play a much bigger role in government in Britain in the future and on more issues.

Although in this case the House of Commons has refused the role which this House proposed for Parliament, no doubt the noble Lord the Minister will agree that because Parliament is sovereign it could in the future, if it so wished, amend the Act to insert a role for itself as we proposed in relation to a low or very low turnout in a specific referendum. But that issue does not arise today.

[Lord Triesman]

My Lords, I want to associate this side of the House with what the noble Lord, Lord Williamson, has said. The matter will not be pressed today but I would ask the House to understand the reasons in the briefest sense for why this was argued and why I think, even in the earlier example of devolution decisions in the past, people were keen to see some sort of threshold. The proposal for a 40 per cent threshold is not a benchmark which would be insisted on for every kind of vote in every kind of circumstance, although some people might in many circumstances wish to see that figure exceeded.

We are talking about changes in quite fundamental constitutional arrangements. It seems quite reasonable to say that there should be some degree of consensus that is visible and substantial when a major constitutional change is to take place. These changes in relationships with Europe would be significant constitutional changes, which is precisely why this legislation is before the House in the first place. It would be wrong to say that it is not simply a matter of how many turn up to vote because whatever the proportion was you would still have to win the vote as well in order to achieve the result.

To conclude, a number of constitutional changes are before your Lordships’ House in this parliamentary Session. We have had them on constituencies, on AV and in this Bill. We will probably see some in any Bill about reform of your Lordships’ House. In introducing piecemeal constitutional change, always with the possibility of it being adopted without there being real and genuine safeguards, we will end up with a set of jig-saw pieces from different jig-saws all shaken into the same box and without prospect of being joined together in any realistic way or without people making realistic decisions about the overall impact of what we are doing. We deny ourselves the safeguard today and, once again, I suspect that we will regret it.

[Baroness Williams of Crosby]

My Lords, I consider that the very strong and articulate arguments put forward by the noble Lord, Lord Williamson of Horton, and very carefully considered by this House, deserve a little more than the rather supercilious dismissal of the whole argument by the other place:

“Because the outcome of the referendum should be determined by those who vote in it and should not depend on how many do not vote”.

One might say that that is almost contemptuous. I support what the noble Lords, Lord Williamson of Horton and Lord Triesman, have said, although I do not expect them to press the matter to a vote.

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[Lord Maclennan of Rogart]

My Lords, I had sat down and was perfectly happy to hear the view of the noble Lord, Lord Judd. The House is eager to take a decision.

[Lord Triesman]

My Lords—

[Lord Stoddart of Swindon]

My Lords—

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[Lord Triesman]

My Lords, either the Whip on the other side is making a judgment that he is inviting the House to endorse or he is not. I do not mind either way but I suspect he is right.

[Lord Stoddart of Swindon]

My Lords, this is perfectly out of order. If necessary I will get the House to vote on whether I can speak.

[Noble Lords]

Hear, hear!

[Lord Triesman]

My Lords, we are taking part in this debate this evening because the House of Commons did not accept Amendment 15. The noble Lord, Lord Empey, made the point that the other place may have been indifferent because relatively few Members were there. I ask him not to make that judgment in general about things that happen at the other end. When most debates are conducted, you see the camera sweep around without many people being there. It is entirely possible that you could regard this as indifference to almost everything, or you could say that it is the nature of the life of this place. I certainly do not think that the House could accept what he commended to us—that we should send no messages that are in any sense disagreeable to people in the other place. Such a supine response from this House to matters on which we feel amendments are needed would surely be exactly the opposite of the role that this House should play, and ample argument for its having no role at all.

What is fundamental at this stage is that this legislation takes us, in several constitutional areas, into waters that are—I candidly submit to the House—unknown. We are being invited to change from a system that is fundamentally parliamentary in the main thrust of its work to a system that is plebiscitary. It will on one reading lead to a significant number of plebiscites—that is entirely possible—or on another to very few, as the noble Lord, Lord Lamont, suggested. That is also entirely possible; I do not know which it will be. What I do know is that it will be fundamentally different from the way in which we have conducted parliamentary debate on key issues over many generations.

There is a fundamental constitutional change in that Parliament will offer the public votes—either frequently or infrequently, depending on which reading one takes—on whether to overturn the decisions that it has taken as a result of major debates and major opportunities to review changes in Europe in both Houses. Inevitably, there will be a fundamental change in how we conduct our relationship with Europe as a whole. That is what is intended. Some people advocate that, while others of us believe that this is a disproportionate way of trying to do that. None the less, these are all fundamental changes.

I suggest to the House that, in sailing into these waters, the reality is that we do not know how it will play out. Least of all do we know in what circumstances it will play out. We do not know which things will provide the most significant changes, although we have reason to believe that the present difficulties in European nation state economies give us ample evidence that they will be the tapestry against which all of this will play out. We do not know how the constitutional matters will play out. I doubt anybody here has the temerity to suggest that they know in which circumstances all these matters will play out either.

I entirely understand the argument that there are some things, even against the background that I have described, that are so important to the people of the United Kingdom that they will insist on having a say on them. It is also true that the Government of the day will be bound, in those circumstances, to try to make judgments of their own about what the interests of the country are at any time. There is no point to a parliamentary democracy where the Government of the day say, on some quite critical issues, “We will not be finally responsible for taking judgments about what the interests of our country are”. That would be a peculiar country to live in and one in which the notion of fundamental democracy had been considerably eroded. Variations by subsequent Governments in subsequent Parliaments, of the kind that are suggested in this amendment, seem just to be prudent as a means of allowing the possibility of dealing with circumstances as they arise in a way that is more flexible—I am not afraid of that word—in all of those circumstances.

I am wholly in agreement with the noble Baroness, Lady Williams, when she says that a significant number of these issues will be judged in general elections. When people look at the questions that must be resolved, they will look at them in general elections. For those who say “Trust in the people”, my trust is at its highest point when they decide which Government they want in a general election. That is a fundamental form of trust. I accept that there will be circumstances in which a referendum would be absolutely right. I hope I have been clear from this side of the House that these include such matters as defence policy, Schengen and the euro. There is a raft of policies where I can see that that would be entirely true. However, I do not believe that, in comparison with a general election and the decisions that are taken, the people of the country—in whom, inevitably, trust must be placed in all such circumstances—believe it is somehow better to replicate “The X Factor” than to deal with real politics in real circumstances. “The X Factor” may be fine as a form of entertainment, but it is hardly a way of dealing with the national interest when it must be dealt with under stress or duress.

I also agreed with the noble Baroness, Lady Williams, when she responded to the noble Lord, Lord Lamont. This is an important point; I hope the House will not mind my repeating it. The noble Lord, Lord Lamont, is right when he says that the case for clauses that limit the life of legislation is far clearer in dealing with emergency legislation. You do not know whether you will need it in the future, and you are not 100 per cent sure that it will meet the intentions for which it was introduced. However, there is also a completely reasonable case for saying that, when we are taking such significant steps into the dark in constitutional terms, there needs to be a way to say, “How do we make sure that we’ve got the balance right in the interests of the country? How can we make sure that we are taking the right decisions in the right way against the right environmental circumstances?”. That is, after all, the function of government.

I cannot stand at this Dispatch Box and claim that I know with certainty where those new balances will lie. It is precisely my point that none of us knows where they will lie. However, this generation of politicians or the next will have to make those judgments. They will come around and they will have to be made. Politicians should be in a position to make them with the greatest confidence and authority that they can. It is critical to our country that they are successful in doing so.

I hope we will accept Amendment 15B. It is a much more limited suggestion than Amendment 15. It seems, in every respect, to grant flexibility without overriding the key provisions of the Bill in any significant way. It commends itself strongly to me on that basis. Most of all, it commends itself on the basis that, if it is true that the cause for dissatisfaction is the belief that Parliament has let too many of its roles and responsibilities go toward Europe and for those reasons fundamental constitutional change is needed—because that is the argument for this kind of fundamental constitutional change—let us be certain as time goes by that we have got it right, that the balances are right and that whatever the causes were we have not backed ourselves into a cul-de-sac or something worse.

[Lord Wallace of Saltaire]

My Lords, I thank the noble Lord—

European Union Bill

Lord Triesman Excerpts

Monday 13th June 2011 Lords Chamber

[Baroness Nicholson of Winterbourne]

I must admit that this is a very compelling argument from this side of the House. I am sure that the noble Lords, Lord Davies and Lord Hannay, will attempt to knock it down, but I suspect that they will not succeed.

[Lord Triesman]

My Lords, it may dismay the House, but I will pick up from the point where this argument has arrived. Like the noble Lord, Lord Hannay, when I looked at the proposal put forward by my noble friend Lord Davies of Stamford, it did not seem to me that the consequence of it was that there would be an immediate move without any further ado to qualified majority voting. Instead, there would be a very substantial process before anybody got there, even if they had the desire to get there. It seemed that whatever difficulties and barriers were raised by those who thought it best to have a closed-market system rather than an open-market system in the defence industry, it would be harder in the middle and long term for them to sustain the restriction on free markets were they to be deprived of the veto as the automatic response. In short, over a period of time—I am sure that it would be over a period of time if it happened at all—it might be possible through a different mechanism to change from this restriction to a free-market solution.

It may be thought curious that from this opposition Bench I argue trenchantly for free markets in Europe. However, it does not seem odd to me; I have held this view consistently for a very long time. Like my noble friend Lord Davies, it appears to me that when we take a serious and hard view of the areas in our manufacturing industry where we might be very successful, among them are the products of our defence industries. They are very fine industries; they are hallmarked by exceptional research and development; they are among the industries that co-operate most successfully and most frequently with the best of our university departments that are working in the same areas of research and development; they manage to do it on a large scale; and they manage to create extremely valuable intellectual properties of a kind that we cannot always achieve in many other parts of our manufacturing life.

As a former Minister responsible for intellectual property, I frequently came at this from a different ministerial portfolio from that of my noble friend Lord Davies, but none the less I was frequently full of admiration for the high quality of patents that were created in that industry and very well aware of the value that they could inject into free-market circumstances. It is very easy to see why, even when there is a concrete commercial rationale for this country, there will be others who will seek protectionism because they are fearful that their industries cannot compete in industries of this kind, particularly where those industries are so driven by outstanding research and development and by their links with the university research world. It is a tough environment to compete in—that is for sure—but that does not seem to me to be a reason to protect those kinds of industries in other countries any more than somebody could argue that we should simply protect them in our country from any difficult winds and buffeting of international competition in a fully commercial sense.

I can also understand the argument that some of those countries will be looking at industries—as we have in defence in the past—as being of considerable strategic importance and we have been cautious about whether that strategic importance should be so lightly set aside. Westland helicopters and so on have been examples of it. However, broadly speaking, we have been at our best as a country when we have been prepared in free markets to compete where we can and to achieve results on the basis of the excellence of what some of our manufacturing industries can do with freedom to operate properly in markets.

In summary, I return to the point that the noble Lord, Lord Davies, has made, that the noble Lord, Lord Hannay, was making and that I made at the beginning of my remarks. Nothing in this proposal moves us with any suddenness onto a different trajectory. I am loath to believe that the House and the general sentiment in this House would be against the possibility of the full operation of free markets and the benefit to United Kingdom industry of competition in a free market, especially where we believe that we can succeed way beyond many of our competitors in that market. It is a very strong argument and I hope that it will appeal to any free marketer looking at the benefits of the European Union in free market terms, which, many noble Lords have urged, were among the founding reasons that they could see for the rationale of the EU in the first place. I support this amendment and I believe that, on free market arguments alone, it should succeed.

[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—

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Moved by

[Lord Triesman]

31: After Clause 13, insert the following new Clause—
“Promotion of United Kingdom’s membership of EU
In participating in a campaign for any referendum held in pursuance of section 2, 3 or 6, or in taking other steps required by this Act, Ministers of the Crown must have regard to the desirability of promoting the United Kingdom’s membership of the EU.”

[Lord Triesman]

My Lords, this is very close to an amendment that my noble friend Lord Radice moved in Committee. For that reason—aside from that of plagiarism, having reproduced the amendment so closely—I shall be very brief.

It appears that the circumstances in which the referendum on whatever subject—an omnibus referendum on a treaty or a more limited one—would be held would be those in which the Government had concluded that it was right to take matters to both Houses. They would have secured a majority in both Houses, including —critically, because of the confidence issues—the House of Commons. Legislation would have been approved by Parliament and would therefore have become the position that Parliament had adopted. That is the decision that would then be put to a referendum—put before the people of the country to overturn it, should they choose to do so. Throughout that process there can be little doubt that it would be incumbent on the Government, and anybody who supported them, to pursue as vigorously as they could the case for the change that they advocated. It would be pointless—indeed, frivolous—if a Government did not, by the time they had reached that point, argue fiercely for the substantive issue.

It is particularly true that that would be the case because, so often when we were dealing with matters to do with Europe, the previous Government did not argue effectively or convincingly. The case was never put with the level of conviction that, on reflection, I should have liked to see. In those days, the Opposition—now the Government—never pursued an argument for Europe with any great vigour that I could detect. There was in general no great desire to do so. However, it will become very important that it should be done—that the argument should be pursued, and that there should be some proper presentation that will enable people to understand why any kind of decision is being put in front of them at all.

I say that in the briefest terms for this reason. I have no doubt that if and when any referendum takes place, whatever the substantive issue being put before the people of the United Kingdom, there will be those who regard the occasion as an ideal opportunity to argue against membership of the European Union per se. It will come up and it will begin to look like the opportunity—for which some people outside this Chamber and some within it have urged—for another decision to be taken on Europe. We shall find that that is how the argument will be displayed in much of our media. It will not necessarily be about the issues; it will be about whether people really want to be in Europe. The media will campaign vigorously around that. Of course, the decision will be on the substantive issue in the referendum, but I have little doubt that the campaign will be disfigured by the argument over whether we should be in Europe at all. That is why there is a great deal of merit in asking the Government to have regard—not a very high hurdle to climb over—to,

“the desirability of promoting the United Kingdom’s membership of the European Union”.

My noble friend Lord Radice put that point in very convincing terms in Committee. There are extremely good reasons for it, not least that we have all failed so abjectly to argue the case for Europe with great effect in the past. I beg to move.

[Lord Risby]

My Lords, I very much agree with some of the underlying sentiments of the noble Lord, Lord Triesman. There are powerful reasons for us to be part of the European Union and to have a positive view of it. Of course that is the case. Sometimes that is completely lost in the wash, which is regrettable and unfortunate. However, on promoting the desirability of our membership, I just point out that we have to take great care over what we do in this respect. One of the most extraordinary episodes under the previous Government was their attempt to explain the euro. We had the exceptional sight of the then Europe Minister, Mr Keith Vaz, going round in a white van to various market towns, handing out literature explaining why the euro was a very desirable thing. The net effect of this risible campaign was to cause support for the euro to diminish, so we have to undertake these things with great care.

The amendment implicitly reflects concern about the lack of popularity—

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As I said in Committee, the sentiments behind the amendment can be agreed with, but the idea that one can somehow carry this cause forward, make the case or build up the narrative with vision by popping this kind of amendment into the Bill is unfounded. While I applaud the intention, I think that the action is wrong. For those reasons, I ask the noble Lord to withdraw his amendment.

[Lord Triesman]

My Lords, I thank all noble Lords who have taken part in the debate, particularly the noble Baronesses, Lady Williams and Lady Falkner, the noble Lord, Lord Dykes, and my noble friend Lord Radice. My noble friend was quite right to point out that it would have been ideal to have a much more widely constructed objective, but I doubt that we could have got it into the Long Title, although it would have been well worth it for all the reasons that have been argued. Perhaps I may express a word of appreciation to the noble Baroness, Lady Falkner, for pointing out the phrase in the middle of the proposed new clause that was intended to broaden the scope of what is intended beyond a referendum. I had not made that point, so I greatly appreciate that it was.

I am quite sure that the noble Lord, Lord Radice, did not intend last time around, as I did not this evening, to advocate some system of propaganda of a narrow and fruitless kind or publicity stunts. I can promise the noble Lord, Lord Risby, that if anyone approaches me in a white van, they will see me heading rapidly in another direction. I have no intention of engaging in a serious matter with anyone in a white van. I have nothing against white vans in general, but if there is anything emblazoned on the side that tells me that they are part of a propaganda campaign, I shall head off—on a bicycle, of course—in another direction.

I accept the point made by the noble Lord, Lord Hamilton, that it is not only the media who criticise the EU, but they do play a dynamic role in these things, as they do in Germany and elsewhere.

I was reflecting on the difficulty of dealing with the media. Not all that long ago, I remember reading a detailed account—albeit in relatively short paragraphs and sentences—in one of the newspapers of the European Union’s desire to insist that in future we should have only straight sausages in the United Kingdom. Such was the level of debate. I would have taken that seriously but for the fact that I turned over a couple more pages and found that it also reported that Elvis was alive and well and driving a bus in Stalybridge.

My point is that you do not always get a fair crack in the media. I do not attribute all the difficulties that I have described to the media but the balance in the media has not been the balance which we have sometimes achieved in debates in your Lordships’ House. The point is to try to seek further rebalancing. The noble Lord, Lord Howell, was fair enough in mentioning one decade and pointing to the fact that we were the Government. However, he might have been a bit more generous and gone back a couple of decades to the impromptu words that the Prime Minister of the day was caught saying on television about some of his colleagues and their attitude to Europe.

In the recent past, we have not had a glorious history of a balanced debate. Indeed, on occasions we have not had any debate. In seeking to withdraw the amendment, as I now do, I hope that it if has done nothing else, the initiative of the noble Lord, Lord Radice, which we followed up this evening, will make us reflect on the fact that we are unlikely, whether in the context of anything in this legislation including referenda, to have an intelligent discussion about Europe if we continue to pillory it without any serious attempt to tell the other side of the story.

Amendment 31 withdrawn.

European Union Bill

Lord Triesman Excerpts

Monday 13th June 2011 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, the procedure when seeking any agreement on consequential amendments is, first of all, that they should be clearly consequential; these are not.

Secondly, grouping of course is for the convenience of the House. It does not indicate that all the amendments in a group are consequential. Indeed, if that were the case, there could be an invidious position whereby a noble Lord might have an amendment in a group led by a government amendment, and they would not be able to vote on later amendments in that group. Grouping is not of itself an indication of consequentiality. I remind the noble Lord, Lord Hannay, that the Minister did not accept the other amendments as being consequential. I am advised that the Public Bill Office did not give prior indication that these amendments were to be considered consequential.

Indeed, there are matters that are consequential in later groups. It is for the Government to consider whether they wish to bring different policy objectives to bear in another place as a result of Amendment 14. Amendments 15 and 16 may indeed be seen by the noble Lord, Lord Hannay, as desirable in policy terms, but those two amendments are not consequential on the Government’s defeat regarding Amendment 14. The noble Lord may wish to consider whether to take the matter further. There will, of course, be the opportunity to deal with the matter in another place and it may return here on another occasion.

[Lord Triesman]

My Lords, in almost all other circumstances I would not have dreamt of getting to my feet to argue this point, but I genuinely do not believe that a single Member of your Lordships’ House did not think that that was a debate on one set of matters that were plainly related. The speeches all dealt with issue after issue and the total consequence of them. The noble Lord, Lord Hannay, introduced the group by saying that attention had been given to questions described by the noble Lord, Lord Howell, as the big issues—I am not trying to argue that he said that what some of us described as smaller issues are not important. I cannot believe, in all conscience, that anybody in this House was under any misapprehension about the character of the last debate. It would be tragic if we got into a position where game-playing took over from the decencies of proper politics.

[Baroness Anelay of St Johns]

My Lords, in 13 years of opposition, we never thought to press an amendment that was not consequential when it had not formally been agreed to as being consequential by the Bill team and by the Minister, who always checked in advance. The noble Lord, Lord Triesman, talks about matters being related. Of course matters are related in debates on groups of amendments. That is why amendments are grouped. It is part of the constructive way in which this House works.

The Government cannot accept that Amendments 15 and 16 are consequential simply because they are not. They may be the policy objective that the noble Lord, Lord Hannay, feels is sensible and advisable, but it may not be what the Government accept as sensible and advisable. The Government may wish to take a different view. It is not a matter of the Government being recalcitrant. If something is not consequential and has not been accepted by the Government as being consequential, it is not. It is procedural, and it is something to be considered in the future if the Opposition wish to have amendments accepted as consequential when they are not. It is a matter of negotiation beforehand; not for announcement on the Floor of the House.

European Union Bill

Lord Triesman Excerpts

Wednesday 8th June 2011 Lords Chamber

Moved by

[Lord Triesman]

6: Clause 3, page 2, line 32, after second “condition” insert “, the urgency condition”

[Lord Triesman]

My Lords, given the debates that we had in Committee and the debate which we had shortly before the dinner break, it is possible to speak to this amendment fairly briefly. Its aim is to take account of circumstances where the Government conclude that it is in the interests of the people of the United Kingdom to act with greater dispatch than would occur if the whole of the processes set out in other parts of this Bill were gone through.

Earlier this afternoon the noble Lord, Lord Howell, asked—I understand the point—“What are the circumstances in which events might take place that are difficult to put into words?”. I shall try to put at least one such circumstance into words, but I recognise immediately that it may be difficult to do so in the context of the judgments that Governments have to make about the interests of the country when events precipitate at a rate which is not anticipated in the normal course of events. However, my ministerial experience, and that of many others in your Lordships’ House, tells us that events happen. I think that I am quoting a former Conservative Prime Minister, and he was entirely right—they do. Events happen and Governments have to respond to them. We will be able to deal with many of them using the sovereign processes of our own political system. Some will occur in a wider context and we will deal with them through international organisations, including the European Union and its existing competences—that is not the subject of this Bill—the United Nations, the World Bank and others. Those are not the issues to which I refer. However, it seems to me at least conceptually possible that some things will happen which require an urgent response and where it will be clear to the Government of the day that they need to act in concert with others in ways which are not covered by current arrangements. Before any noble Lord says that he cannot conceive of such circumstances arising, I assure the House that they will do so. They will arise, for example, around an environmental disaster or a financial disaster. The purpose of this amendment is to make provision for the circumstances in which they will arise.

When we talked about the meltdown of the world banking system, noble Lords rightly pointed out that the emergency arrangements that were made took a considerable time to design and to begin to be put in place. Indeed, they are not in place to this day and we have not reached the end of that process. That is rather regrettable because it seems to me that in international terms we are without a number of the levers which we would probably desire to have, in order to have a real impact on some of those events in concert with others. The G20 made a very good effort at least at one meeting, and arguably at two meetings, to try to work out some sort of architecture to deal with those circumstances. Others may disagree but I believe that if Europe had been able to speak with a more coherent voice in the G20 meetings, it would have been much more likely to have arrived at an authoritative consensus with the United States and with China in particular.

It seems to be within the realms of possibility, and perhaps not so fanciful either, that there could be circumstances—particularly in acute financial crises—where the Government might conclude that emergency conditions applied, they needed to be able to act under those conditions, it was desirable for the interests of the country and the people of the country that they did act under those conditions, and that slight variations in the current arrangements would make that more possible. These are inevitably difficult conditions to envisage largely because every time you try to do so you can usually point to a set of arrangements which have already been designed to take account of them. However, we have surely learnt, certainly since late 2007—we have learnt this rather harsh lesson through 2008 and up to the present—that it is not possible to predict all those circumstances, manage them, say that we have the levers for managing them or say that the other institutions, particularly the G20 in which we put such faith, are capable of doing so, partly because Europe is incapable of acting or speaking in a single and coherent way. I beg to move.

[Viscount Trenchard]

My Lords, I am afraid the noble Lord, Lord Triesman, has not persuaded me of the need to include an urgency condition. It seems to me there is absolutely nothing that prevents the UK from co-ordinating with other EU member states in response to any natural disaster. Furthermore, if the amendment were adopted, the ability of the UK to react speedily might even be circumscribed. The amendment does nothing to improve clarity; rather, it confuses the situation, compromises legal certainty and is very subjective. Amendment 10 states:

“The urgency condition is where an amendment under the simplified revision procedure is considered to be urgent”.

“Considered” by whom and in what forum? It is very unclear. I venture to submit that this amendment does nothing to improve the clarity and certainty of the Bill.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, the Bill in no way excludes the European Union from being the appropriate body to respond. It is entirely appropriate that bodies such as the European Council and the Council of Ministers in its various forms should take decisions. How those decisions are taken, and what their legal implications will be, are matters probably best not dealt with in an emergency. Where there might be a transfer of competences, one should consider it not under emergency conditions but rather more coolly.

I was about to quote Article 48(6), which states that the decision under the simplified procedure,

“shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements”.

That is why urgent decisions will take 18 to 24 months to get through the various constitutional requirements, and why the question of what we mean by urgency does not limit the British Government.

It is of course very difficult to foresee what sort of crises we might face, or how and in what framework we and others would respond. The European Union exists as a framework and therefore may very often be used as such, and we and others would work through it. It has plenty of competences and the ability to take decisions by consensus in response to a crisis. However, that does not transfer powers and competences. That is the difference between taking urgent decisions and changing the nature of procedures, structures, powers and competences. With respect, I say that the urgency question is not an important part of the Bill. There would be sufficient time to complete the processes set out by the Bill, by an Act of Parliament and, where required, a referendum of the British people.

The second part of the condition is that the treaty change should be in the national interest. My noble friend Lord Howell said, when debating a previous amendment, that the national interest is not an entirely objective concept. I am sure that the noble Lord, Lord Triesman, agrees that the coalition has come together in the national interest and is acting in what we think is the national interest—although he may have a different view of the national interest from members of the coalition. Politics revolves around our contesting views of Britain's best national interests. Therefore, the concept is not an entirely objective one that we can usefully write into the Bill. No Government would agree to any treaty change at EU level if they were not of the firm belief that such a move was consistent with the national interest. No Administration would ever agree to a treaty change if they considered that it would be against the interests of the United Kingdom. Therefore, I assure noble Lords that the national interest, as we see it, is at the heart of every major decision that this Government take on EU matters—as I assume was the case with the previous Government and will be for any subsequent Government.

Having answered those questions, I urge noble Lords to withdraw the amendment. We have had a useful but general debate about what might happen in a hypothetical crisis that none of us can yet quite envisage, let alone consider what immediate changes in powers or competences it would require.

[Lord Triesman]

My Lords, just to take any possible lingering tension out of the highly charged environment of this Chamber—I would hate to wind up everybody inappropriately—I will tell you now that, in a few minutes, I will withdraw the amendment. Before I do so, I have to say that, from an intellectual point of view, these have been some of the more depressing arguments that I have heard. I do not mean to say that in order to be rude. I just think that we must allow ourselves the courtesy of being a great deal more rigorous.

As the noble Lord, Lord Kerr, pointed out, it is plainly the intention of the amendment to provide a means whereby, in circumstances which are very pressing and where we need potentially to adjust our capacity to act—this is about our capacity to act and the mechanisms that we can use to act—we do not deny ourselves the opportunity to do something if it is in the national interest.

I cannot imagine that it really needed any presentation to us, but I readily accept that what constitutes the national interest will not be determined by some objective basis, as would a demonstration of Boyle’s law of gaseous volumes. This is not a point that I have ever attempted to make. The national interest will be defined by the Government of the day, whether a single party or a coalition. We may or may not all agree with one another, but it is in the nature of our parliamentary democracy that the power to arrive at a conclusion about what the national interest is is vested in a Government that enjoy the confidence of the House of Commons and can proceed on that basis. In that sense, from a political point of view, it is a completely objective test. I know whether the Government of the day enjoy the confidence of the House of Commons precisely because I know what would happen if they did not. It is a very simple matter.

Let us not deal with this kind of discussion as though it were incumbent upon us to do something like Boyle did, in showing the way in which the volumes of gases under pressure react to it, which can then be set out in a textbook to be tested to kingdom come in any laboratory in the land. Let us deal with it as political people—I was going to say, if the noble Lord, Lord Pearson, was in his place, as humble members of the political class. Let us deal with it as political people—with a small p—who understand perfectly well the convention which decides what the national interest is at any time. I am sorry, but I cannot buy that kind of argument. I do not think it treats us credibly.

I say to the noble Lord, Lord Flight, that it was never my intention in moving this amendment that the Bill should be watered down. I do not like that interpretation being ascribed to what I have said. I have always tried in the House, whether on the government Benches or on these Benches, to be very candid and very frank—it does not always win you friends—about what I am doing and why I am doing it, because it seems to me that life is a lot easier if you try to do it that way. The reason is not to water it down but to make certain that Ministers in any Government have the kind of authority and ability to act in circumstances which come along that we cannot predict.

I am not omniscient, and I cannot say any more than anybody else in the House what I know will happen or what kinds of competence we may require at a particular time to deal with those issues. I will be candid with the House: I did not expect the collapse of Lehman Brothers; I was astonished to know that we were within two hours of the Royal Bank of Scotland collapsing; and I notice that sovereign debt crises are occurring more rapidly and are likely to occur more rapidly. I just say to the House no more than that it is extremely likely that we will face more such circumstances. I do not want to feel that we do not have all the levers at our disposal in order to deal with them.

--- Later in debate ---

[Lord Stoddart of Swindon]

What I was talking about was the transfer of great powers, which would be permanent; what the noble Lord has been discussing is matters of emergency. Those are quite different because, for example, on the financial crisis that has blown up in the European Union, it is perfectly possible for the Government—indeed, the Government alone, backed later by Parliament—to make decisions that might last for five years, but would nevertheless not be permanent transfers of power. That was what I was trying to get at.

[Lord Triesman]

My Lords, if I misunderstood the point, I of course apologise.

I conclude my remarks by saying that this does not involve the same sort of transfer of powers as under Article 48(6). It is not intended to do so. We have all acknowledged that it has a different standing.

My key point is this, and I address it to the government Front Bench to think about—even though they obviously cannot respond to it this evening in this particular debate. The G20 was as good an attempt as anybody could make in the circumstances to try to find some way of codifying the responses to the financial crisis across the world. Thinking of it professionally almost—as an economist—I think that it was a pretty poor outcome and the G20 did not do what it was supposed to do. The key players did not play the roles. It may be that a number of people, including eminent politicians from this country, talked up what the G20 was capable of doing and what its successes might be, but when we look at it in the cold light of day, we do not have in the international financial system the protections that some pretended there would be as a consequence of that meeting. There is no doubt in my mind that one of the reasons for that is that a number of coherent economies in Europe that were used to mature financial operation found themselves without the tools to respond together, and that had a profound effect. I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

European Union Bill

Lord Triesman Excerpts

Wednesday 8th June 2011 Lords Chamber

[Lord Davies of Stamford]

I hoped to intervene before the Minister sat down but I missed my cue. I shall be very brief. As the noble Lord and his colleague, the noble Lord, Lord Howell, have been courteous enough to mention me in the context of our debates on these matters in Committee, it would be wrong of me not to say that we on this side appreciate that the Government have genuinely reflected on the Committee stage debate on these two matters, relatively minor though they may be. That is encouraging for us and the hope that we can all take part in improving this legislation and that the result of our labours will not be entirely nil. Does the noble Lord have in mind any specific contingency in which there might be a proposal involving the transfer of powers from Gibraltar to the EU, or is this whole subject merely theoretical? Have the Government provided for it as a purely theoretical possibility, or do they have any issue in mind that might be triggered by this clause?

[Lord Triesman]

My Lords, I appreciate the tabling of these two amendments by the Government. I share the view of the noble Lord, Lord Wallace, that they will probably not be thought of as huge concessions almost anywhere. He put that rather generously and he is quite right—they will not. More to the point, they are wise amendments. It may well be that on some future occasion he will wish to land in Gibraltar. He would not want to receive the sort of frosty reception that he would receive if he had done anything to the people of Gibraltar other than what appears as a result of these two amendments. It is a helpful clarification. We are satisfied with it and thank him.

[Lord Wallace of Saltaire]

If no one else wishes to intervene, I ought to answer the point raised by the noble Lord, Lord Davies of Stamford. I find it difficult to imagine circumstances in which there would be proposals that would represent a transfer of powers or competences from Gibraltar to the EU. However, I have not looked back at Protocol 3 of the 1972 Act which ratified the treaty of accession and the extremely complicated circumstances in which Gibraltar is treated as a member of the EU but does not take part in all aspects of EU policy. For example, it does not take part in the common agricultural policy, but it takes part in the freedom of movement.

--- Later in debate ---

[Baroness Nicholson of Winterbourne]

This amendment is not in fact about the absolute underpinnings of this Bill, although it is a very tempting set of red herrings that have been laid in front of your Lordships’ House. This set of amendments is about whether or not there should be a 40 per cent threshold and, with your Lordships’ permission, I would like to comment purely on that point.

The 40 per cent threshold seems to me, as a former Member of Parliament and of the European Parliament, to be a rather odd thing for noble Lords to be considering today. We do not have a 40 per cent threshold in the general election or in the European election, for example. We are perfectly comfortable with assuming that 50 per cent of those who come out to vote is the threshold on which the electorate are exercising their wisdom. I find it extremely difficult to see why, just for this Bill, some noble Lords are so adamantine in their perception that a 40 per cent threshold—and no less—is the absolute minimum they will accept if a referendum is to give a valid answer from the British people.

All noble Lords who have commented on the imperative of parliamentary democracy and Parliament’s primacy are, of course, absolutely right. I think that it is Clause 18 of the Bill that, for the first time ever in many generations in Parliament, absolutely clearly defines that it is only through the primacy of Parliament that EU legislation can be accepted at all. It is our responsibility. The noble Lord, Lord Waddington, made the point in his very thoughtful intervention—and I fully support this—that we have been far too fast in ceding power from this Parliament to the European Union. However, I would perhaps remind him that that is our responsibility, certainly in the House of Commons and Government but also, to a much lesser extent, here. The noble Lord, Lord Roper, is in his place, representing the several generations of outstanding work by EU sub-committees in your Lordships’ House. That has not been the case in the House of Commons, which has let slip piece after piece of legislation pouring in from Brussels. Indeed, it is the Ministers of the day, from every single Government—from the previous Government and the ones before that—that have fed the House of Commons so little material that somehow it has unwittingly, or in some other mode, let through all of this legislation and the growing burden of all these regulations which are, I believe, oppressing the peoples of the European Union and particularly the peoples of the United Kingdom.

This modest Bill, although it is relatively lightweight, does contain two or three very important points, the first of which I believe is the primacy of Parliament over EU legislation and therefore surely over the outcome of any referendum. It also gives the wonderful possibility of a downhill-driven knowledge base to the British people and some small modicum of authority over what will happen. I very much support the Bill because of those two points.

Coming back to Burke, to the point that was raised in the context of representative parliament, I cannot help but comment, because the flavour comes through so strongly, that some of the arguments that noble Lords are putting forward tend to resonate with those of us whose female forebears fought for the vote for women. In other words, somehow some elements of the population are not fit to bring their judgment to bear on important matters affecting the United Kingdom. It is difficult. Burke, of course, was wonderful, but before him and at his day women did not have the vote. Academics had more than their current bundle of votes per person, so did the landed gentry, so did the aristocracy; well, wonderful, but today is different.

One of the key differences is that today we have modern technology. Only the day before yesterday I had five e-mails, no less, from the great Steve Jobs himself urging me to discard my newly purchased iPhone and my iPad of the week before last in favour of iCloud, where all my data are going to be parked for ever and a day. Modern people, men, women and children of all backgrounds, all income brackets, all of us—I leave aside prisoners because I do not want to interfere with the debate between two prominent powerful members of the Conservative Party on that one—all those people have knowledge now, absolute knowledge, just as much as we do, and they have time, they have energy, they get involved.

My noble friend Lord Dykes commented that—despite the absence of cricket in his tremendous tour de force of commenting on what the British public are interested in—the British people trust their political representatives to make political judgments on their behalf. Noble Lords know full well that the British public have no trust in any politician at all at the moment, although I believe that they have greater trust in your Lordships’ House than in the other place. What they do have confidence in is the knowledge that they take, albeit false knowledge, from Wikipedia, from iCloud and from other data that are now so readily available 24 hours a day and which people take, commandeer and use. Therefore, they want to be involved; they are able to be involved; they are knowledgeable about being involved and that is why the heart of the Bill is a good idea.

The 40 per cent threshold is a very odd idea, unless we are going to carry it right forward into the European Parliament, into the general election, into local elections, presumably—we can have a dismal turnout, yet we respect the council that is elected none the less and the mayors that are elected, if they are. I expect that there will be a pretty low turnout if we have elected police, for example. So we do accept that low turnout and we take just over a 50 per cent threshold as a majority. That is the way in which our parliamentary system works, that is the way in which our electoral system works. I can see no rationale, no reasonable argument that has been laid in front of your Lordships’ House so far this afternoon, which tells me that I should support this set of amendments. These referenda will be few and far between—probably once every 10 years if the European Union actually proposes a further transfer of sovereign power, which at the moment is highly unlikely. It is busy with the euro, it is busy with the superabundance of enlargement; it is not going to propose anything very important for the moment on these grounds. Maybe once every 10 or 15 years there will be a referendum. Is this of such profound significance that it outweighs the normal way in which we vote in general elections? I think not. The logic is against it because the Bill says that the primacy of the British Parliament overrides everything coming from Brussels in any case. I oppose the amendments.

[Lord Triesman]

It has been a long debate and I suspect that there has been a very full review of most of the issues. I am very pleased to be associated with the noble Lords, Lord Williamson and Lord Dykes, and the noble and learned Lord, Lord Howe, in this amendment. I also find myself in very strong agreement with the noble Lords, Lord Deben and Lord Forsyth. I too have been thinking about Burke. It may completely destroy any prospect of my ever sitting successfully on these Benches again, but the reality is that those are the key arguments.

There was such strong support for my noble friend Lord Rooker’s original concept of thresholds and the feed-through to the parliamentary system—there are some differences here that I shall explore in a moment—because it was felt strongly that when there were to be significant changes to our constitution or the arrangements under which we are governed, there ought to be a demonstrable degree of legitimacy. Goodness knows, 40 per cent is a pretty modest figure when looking at a level of legitimacy for changes that profound. None the less, it was an attempt to say that there should be some authority for the decision, and that the figure gave at least that degree of authority. One of the arguments adduced at the time was that in the commentary on the turnout in local elections, in particular, dipping below 40 per cent, as it often did, people made very severe criticisms of the quality of our democratic life. When it was higher than that, people tended to think it was healthy. I do not want to say that that seems to be the key reason. I just make the point that on turnouts of less than 40 per cent, results were routinely disparaged. Anybody looking back over the press and other commentary at the time would come to same conclusion.

The constitutional debates in this House were interesting. Many of your Lordships said that once the decision is taken in a referendum we should not try to second-guess the electorate. They will have spoken, however small the turnout and however profound the issue. None the less, they will have spoken. That was never a convincing reason not to look at the prospect of some threshold. That is why I agree so strongly with the noble Lord, Lord Deben. Unfortunately, we look at it from where we are now, with this legislation in front of us.

The reason why I assert that we may be in a slightly different position now is that most of the arguments that my noble friend Lord Rooker produced are still very good. However, the argument today has a slightly different salience. It has been argued that, in relation to Europe, the people of this country have felt disenfranchised. That may well be true; I do not particularly choose to argue that it is not the case. They may well resent having had less say than they believed they should. What is needed in these circumstances may be the indelible mark of people’s approval for changes that might have a significant effect on their lives. I can see that. If it is true that we need that new kind of indelible mark, let us make sure that it is a credible mark, which has some authority and dignity and has not gone through on very small figures.

The reason why I believe that this is significantly different from the arguments about, for example, local elections, and different—with the greatest respect to former Members of the European Parliament—from European parliamentary elections, is this.

[Baroness Nicholson of Winterbourne]

I was merely making the general point that 50 per cent-plus is our normal modus operandi. It is impossible to see why it should be any different for this referendum.

[Lord Triesman]

My Lords, the argument for 50 per cent plus has been widely canvassed recently among the people of the United Kingdom, who formed a very clear view of it, which I agree with. I make this point because it goes to the heart of the difference that we are discussing. The difference seems to be that Parliament will have taken a decision to put the matter to the electorate. The question is: what size or degree of opposition should there be before Parliament is overridden and its decision—the decision that has been advocated by the Government of the day—set aside? The decision that forms the fundamental proposition being put to the people will have been argued for from government Benches, and may well have been argued for from opposition Benches as well, before it ever gets to the point where it is put to the people. The constitutional innovation is that people are being asked to set aside whatever Parliament, and indeed whatever the Government that they have elected, have said. This is a very profound difference from any arrangement that we have seen at any time in the United Kingdom.

Syria

Lord Triesman Excerpts

Wednesday 8th June 2011 Lords Chamber

[Lord Howell of Guildford]

Those are clearly very wise remarks. I suspect that the noble Lord has more experience than I do of exactly how we reacted to the atrocious murders in Hama in 1982, which were conducted by the brother of the then president, Hafiz al-Assad. The noble Lord is right that Syria is a secular pattern. It is also a tribal pattern, and the tribal and family groups who have ruled Syria are of course not a majority; they are a minority, among many others. They have ruled by methods that we regard as reprehensible, and that are becoming even more so. I accept the noble Lord’s analysis that one could see a very serious disintegration of a country of many tribes and various religious groups and, indeed, a pattern that could develop a far greater infection of jihadism and extreme religious activity. For the moment we will have to see how events unfold. We hope that they will take a better course, but at present there is not much room for optimism.

[Lord Triesman]

My Lords, I also welcome the steps that are being taken today at the United Nations and I understand the limitations that this Government and the French and German Governments must feel about how far they can go. This is, as the Minister has said, a savage regime, conducting brutal behaviour towards its own people. Can the noble Lord tell us what steps are being taken to engage Arab support in the region and whether consideration is being given to the International Criminal Court, which must certainly be looking at these as crimes of concern to humanity?

European Union Bill

Lord Triesman Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Dykes]

My Lords, I apologise to the Deputy Chairman for being rather hasty in beginning. That was partly because of my anxiety to be brief in this important debate. I congratulate the noble Lord, Lord Radice, on proposing this new clause in his amendment. It is very important. I detect already that it has gone down well in the new atmosphere of the House. Even if the Government persist with the Bill in most of its configuration, there is a spirit and desire also to promote our membership of the European Union. I hope so, anyway.

The noble Lord, Lord Radice, has a distinguished and noble Italian ancestry. As a keen linguist myself, I am prepared to forgive him; he told me once that he did not speak Italian. However, he is an internationalist in every other sense. I had the pleasure of preceding the noble Lord, Lord Radice—I hope he had pleasure in succeeding me—as chairman of the European Movement. I was chair in the first half of the 1990s; it was the noble Lord, Lord Radice, afterwards. Even then when we spoke about these matters we often lamented the extent to which Governments of all colours—the two main parties, anyway—did not defend and promote our membership of the European Community enough. We saw that only in the days of the Edward Heath Government. To her credit, it was also partly true in the period of the Thatcher Government, particularly with the creation of the single market, but by and large it was not.

I compared this to the previous Spanish general election—there is the possibility that another will come along soon. The two great parties in that country fought a tenacious and bitter political battle on all aspects of Spanish domestic and internal policies, but not once did anybody invoke Europe as an anti-cause to win domestic votes. It is a pity that our internal politics has been bedevilled by that phenomenon, as well as by Governments not explaining a mechanism and structure that is in many ways more complicated than just a defence alliance such as NATO, although that is complicated enough. Not enough has been given over the years to doing that. We need to do that even more now because of the way in which various press organs in this country have denigrated Europe excessively.

Therefore, the words of the noble Lord, Lord Radice, should be heeded by the Government to promote a campaign. Indeed, they ought to promote a campaign to defend and explain Europe properly in the objective and neutral sense of the word. It can be done, even when there are referenda to be fought in the future. I hope there will be no referenda, but it is in those terms that one asks the Government to respond positively to this important amendment tonight.

[Lord Triesman]

My Lords, I welcome this amendment from my noble friend Lord Radice, whose expertise on Europe is well known in the House. Several of the speeches that have been made by Members of the Committee have reflected their own extensive knowledge of Europe and their understandable disappointment that we have been so churlish in the way that we have talked about Europe and the European project over the years. Like the noble Baroness, Lady Williams, I take the point that there are things to criticise. However, that is scarcely a reason for the trajectory on which we have embarked.

In addressing the amendment specifically, it is clear from the beginning of Clause 2 that a referendum would be launched following matters being laid before Parliament and fully debated, a decision being taken by Parliament and a treaty approved by an Act of Parliament. Clause 3 gives essentially the same sequence: Parliament takes a fundamental view, looks at it and decides that a referendum should be held because of the conditions to hold one as set out in the Act. Under Clause 6, a Minister of the Crown must start with a draft decision approved by an Act of Parliament. The referendum condition is then triggered. In all the circumstances in which a referendum condition is triggered—were one ever to be triggered—the reality is that Parliament will have reached a conclusion. Obviously, it will not have done so in secret. It will be a decision that is well known to the public as a whole. Parliament will have decided that the point at which a referendum is required has been reached.

In those circumstances it would be inconceivable that no argument would be advanced to the people who were going to vote in the referendum to account for the decisions that Parliament had taken. It would be an extraordinary set of circumstances in which that decision did not have the visible consent of the Government. If the Government had put a proposition of that kind to Parliament and it had been defeated, it would be a significant blow to any Government. It must be the case that the arguments that had been held in that forum—or forums, taking this House into account as well—would have come to a positive outcome.

I turn to Clause 13. The Electoral Commission,

“must take whatever steps they think appropriate to promote public awareness of the referendum and how to vote in it”.

In other words, it must make sure that people know the referendum is taking place and what they need to do to take part in it. Curiously, under paragraph (b), the Electoral Commission,

“may take whatever steps they think appropriate to promote public awareness of the subject-matter of the referendum”.

In short, it must make sure that everybody knows about the referendum but it may take steps to make sure that people know what the referendum is about. I make this point because if, in those circumstances, the Government or a Minister did not take steps to deal with the policy issues under discussion, it would be the most curious discussion that there had ever been before a referendum, especially if the Electoral Commission itself did not get into the theatre of argument about the subject matter. It seems to me that it is less likely to do that than the politicians who are involved in it.

There is, therefore, a huge amount of good common sense in the amendment of my noble friend Lord Radice. If you look at the specific text of the amendment, Ministers of the Crown are asked to,

“have regard to the desirability”.

This is not a monumental hurdle to have to cross. Ministers are expected to put the argument in a way that at least conveys why Parliament has taken the decisions that it has taken, and to do so in a way that is positive. Does that disbar anybody from saying, “There are issues here. We can see the following negatives”? No, of course it does not. I have no doubt that in any referendum debate people will say what they think the downside of the argument is. However, the amendment would ensure that the upside of the argument is also presented, even in a climate where a large part of the media of this country may not be sympathetic. That is probably the only route to achieving any balance in the discussion that will take place in advance of a referendum. Therefore, I welcome this amendment. One can look back and see how it links with the other clauses, and particularly how it deals with the rather conditional “may take” provision in Clause 13. In my view it would ensure that the argument was well made.

Having made that rather narrow point about the purpose of this amendment and how it would operate against the background of a parliamentary decision, I assert that in a generally extremely sceptical climate it can do no harm whatever to argue the case for the benefits of the European Union in a positive way. No doubt some Members of your Lordships' House do not believe that there are any positive benefits, or that they are so marginal that they should not be referred to because it is a waste of breath. However, a good many more of us believe that there is a very good and strong case to be made in favour of the European Union, and that it is sensible that it is made, as this amendment would ensure.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, I was going to begin my comments by congratulating the noble Lord, Lord Radice, on the very sensible and balanced way in which he put his case, although his peroration slightly took off the ground towards the end of his remarks, but perhaps that is the nature of perorations. However, as the debate has gone on, I have begun to share the sentiment expressed by my noble friend Lady Williams that the situation is sad in a sense, although I suspect that I disagree somewhat with my noble friend on how the EU should develop in the 21st century and be made fit for purpose, where the great trends should go and how this country should reinforce them. Nevertheless, I agree with her that all the old polarities of debate have prevailed for far too long. Over the past decade or so, one has needed to see emerge a new and much more positive British presentation and role than we have seen. That is a matter of regret.

The Government have no difficulty in supporting the main sentiment behind this amendment. We are members of the European Union. If we are members of organisations such as the massive and amazing European Union, it would be absurd to do anything short of making the very creative best we could of that. Therefore, the noble Lord, Lord Radice, makes an important point about the need for the Government to be a more vocal and effective advocate of the European Union of which we are members, given the way that the world is shaping. This applies also to other great bodies in the world of which we are members. I am sure he will join me in saying that we need to do better than the efforts of previous Administrations in our approach to this vital task. Indeed, the noble Lord said as much. We should do so by explaining more clearly how good and positive EU membership is part of our overall adjustment to a totally changed world landscape in which major markets are growing up outside Europe and in which Europe and the European Union, including this nation, are going to have to compete with increasing vigour. We need to ensure that the European Union is understood to be, and is seen as, a force for good. We want people to understand that the European Union, and our membership of it, has been, and can be, a force for good. We need to improve the effectiveness—this is slightly off the brief—of the EU’s own voice. Many of us feel that sometimes in recent years that voice has not been quite so effective and focused as it should have been. We seek to present positively to the British people the benefits of these activities and our membership of the Union. The coalition is doing that. Indeed, all Governments should do so as a matter of course into the future.

--- Later in debate ---

[Lord Pearson of Rannoch]

My Lords, I shall speak briefly to underline what my noble friend Lord Stoddart has said and to put it as a precise question for the Minister. The only point on which I do not quite agree with the noble Lord, Lord Stoddart, is that I think that Clause 18 as it stands is better than nothing, and no doubt especially once the Minister has explained it in a few minutes’ time. But I will speak against Amendments 57, 58 and 59, and particularly Amendment 59 for the reason that it appears to get rid of Clause 18.

My question for the Minister is this: does he actually agree with the noble Lord, Lord Stoddart, that one parliament cannot bind another, even in the whole matter of our EU membership? Will he confirm that if Parliament—your Lordships’ House and the House of Commons—repeals the original 1972 Act, particularly Section 2 with which I include all the amendments that have been added, those arising from the Single European Act 1986, Maastricht, Amsterdam, Nice and so on, are we then in effect out of the European Union? Will we no longer be subject to the diktats of Brussels and the jurisdiction of the Luxembourg court? Of course I understand that a lot of British law did come from Brussels and is sewn into our own law. I also understand that that can be repealed at our leisure as we go forward. However, I would be grateful if the Minister would confirm that Clause 18 means that it is only if we repeal the 1972 Act that European law would no longer take precedence over the law of this country, and that that can be reversed by repealing the Act?

[Lord Triesman]

My Lords, what has come through in the debate is that it is hard to see a strong purpose for Clause 18. It is not the best drafted clause I have ever read in legislation, and I understand why—or at least I think I understand why, which I will come to in a moment. But it is also true to say that the Explanatory Notes to the Bill do the clause no favours. They do not set out why it is compelling or why any of us who think that it is obscurely drafted should feel that we can put our hand on our heart and say that we know exactly why it is written as it is. I certainly do not feel that way. I am not a lawyer. I am not learned in the law, which is the expression that has gone around the Chamber. I am a humble mathematician and I am trying hard to understand the considerable obscurities of law when compared with mathematics.

It is important to ask, as did the noble Lord, Lord Deben, only a short while ago, what the clause as it is written is for—I shall come on to the alternatives in a moment. Everybody agrees that it is declaratory in its reference to the 1972 Act. It looks as though it is attempting to balance a number of arguments which plainly have gone on in the background between those who are uncomfortable with the idea that Europe has any bearing on the way we conduct our legal lives, and may continue to do so, and those who recognise that that is a fixed reality because of the processes that the noble and learned Lord, Lord Howe, described in a very helpful speech. It is hard to understand the necessity of Clause 18 and it is reasonable to say that, as drafted, it is open to very wide interpretation. As a couple of noble Lords have said, that would probably make it open to judicial review.

I find myself in strong agreement—I hope that it will do her no harm—with the noble Baroness, Lady Falkner, who said that the House of Commons European Scrutiny Committee’s report gave not the most glowing reference which anybody has written to a piece of legislation. The report is written with the niceness that parliamentarians occasionally reserve for a description of something they think is very poor, but, none the less, it says, in terms pretty much, that it is very poor. The Government in their response almost give up the ghost after a very short period of trying to defend it, because there is no certainty, I think, even on their part, that this was the right way to do it.

I cannot see the point of the clause or that it is at all helpful. I have real sympathy with the point made by the noble Lord, Lord Stoddart, that parliaments cannot bind their successors. That view at least, about the character of parliamentary Government, must be common ground among us. In those circumstances, it must be common ground that Parliament is supreme, and it must be common ground that, should Parliament wish to stand down the 1972 Act, it would be within its competence to do so. It is extremely unlikely that it would, but that is neither here nor there in the terms in which the noble Lord put that proposition to the Committee. The supremacy argument is very powerful. One of the reasons that I have great difficulty with much of this legislation is that it seems to reduce the role of Parliament and the supremacy that it should enjoy. The points that have been made ad nauseam in your Lordships' House about multiple referenda do nothing for the objective of propping up the supremacy of Parliament, but the general proposition made by the noble Lord, Lord Stoddart, must be right.

If the Government feel that it is essential to have in place a clause that is declaratory, it might as well have the following characteristics. First, it should be so clear that even those of us who are not learned in the law understand it. Secondly, it should be sufficiently clear that it does not give rise to frequent legal challenge. Thirdly, it should make reference to—if I may put it this way—the core code that is involved in European legislation and not gloss over that. For those reasons, Amendment 57 offers greater clarification. It may well have been written with people who are used to dealing with sovereignty issues somewhere in the background, but it is none the less a straightforward clarification. Beyond that, Amendment 59 does that by a very direct reference to what I described as the core code—to the central proposition about why the status of our relationship to Europe is as it is.

If we did not have this clause at all, which would be my preference, much of what I said in the past few moments would not be particularly relevant. But if there is to be a declaratory cause it should at least have the characteristics that the noble and learned Lord, Lord Mackay, introduced in his speech this evening. It is impossible to misinterpret or misunderstand it. That has great merit and I hope that he will not mind my saying so from the opposition Benches. It does not alter my view that, as the noble Lord, Lord Armstrong, said, the clause is not really necessary, but Amendment 59 has a convincing pedigree and that is what recommends it to me.

[Lord Howell of Guildford]

My Lords, I will look first at Amendments 57 and 58 and then come to the vagueness charges embodied in Amendment 59. I will seek to explain why the words are in the Bill. Whether the explanation is acceptable to the Committee is another matter at the moment. I will explain that the words that are in the Bill work the other way: they add to the precision of the legislation rather than to the vagueness of it. I will come to that in a moment.

As noble Lords have recognised, Amendment 57 would include on the face of the Bill that Clause 18 does not alter the rights and obligations that the UK signed up to on becoming a member state of the European Union. It also seeks to legislate explicitly that Clause 18 does not alter the primacy of EU law. I am grateful to your Lordships for drawing attention to these two important principles: that the EU law has primacy and that the UK must honour its obligations as an EU member state. I assure the Committee and particularly the noble Lord, Lord Lea, with his Amendment 58, that the Bill supports both those principles. Indeed, the Bill has to support them. It is not a question of choice. The Bill has to support those principles because to do otherwise would put us in breach of our obligations as EU members.

I have serious concerns about Amendment 57. It does not reflect accurately the legal position regarding the UK's membership of the European Union. I say that because the UK follows the dualist constitutional model. Giving treaties effect in the UK is always a two-stage process. That did not seem to feature in the debate that we just had. The first stage—the signing of the treaty during which the UK may take on rights and obligations—is governed by public international law. The rights and obligations assumed by the UK on becoming an EU member state are governed by public, international law rather than domestic law. Those rights and obligations are binding on the United Kingdom under international law irrespective of the existence of the European Communities Act or any other Act of Parliament and will continue to be so as long as the UK continues to be a member state of the European Union. It follows that the EU Bill does not and cannot change the rights and obligations assumed by the United Kingdom on becoming a member of the European Union. It would be misleading to suggest in this or in any Bill that any Act of Parliament could do this. Such a change could only be done by the UK renegotiating the terms of its membership of the European Union.

I say to the noble Lord, Lord Pearson, that Governments can of course seek to bind future Governments. Most Governments whom I know, and whom many of your Lordships know, have sought to bring in great legislation. Let us take, for instance, some of the privatisation provisions under the earlier Thatcher Government. Our hope was that those would endure. We hoped that a future Government would feel bound by privatisation visions, not renationalise the whole of the then privatised sector—indeed, our hopes were in fact borne out. However, a Parliament cannot bind a future Parliament; that is a completely different proposition. It is of course possible that a future Parliament could repeal the 1972 Act although, interestingly, that would not remove the United Kingdom from the European Union. It could only be done by negotiation through Article 50 of the Treaty on European Union but those things are possible. Parliament can do anything and is supreme.

Noble Lords have asked what the point of Clause 18 is and why it is in the Bill. It confirms that the second stage of the dualist system, whereby the rights and obligations taken on by the UK are given effect in UK law and can therefore be enforced through the UK courts, must always be done by an Act of Parliament. Any suggestion that EU law constitutes a new, higher autonomous legal order and has or can develop into part of the UK’s legal system independent of statute are thereby refuted. That is very important indeed. Noble Lords may say: “So what? That is what the courts have always upheld”. However, as the noble Lord, Lord Williamson, acutely observed, it has been challenged. I think that the prosecution in the metric martyrs case tried to float the idea in the counter case that EU law had some autonomous existence independent of our own statute law. It has been raised and to say that it is not in question is simply factually wrong when people have questioned it.

It is therefore the view of the coalition that it is right and valuable that this declaratory clause should be in the Bill. Even if it can be said that the courts have so far upheld that position, as my noble and learned friend Lord Howe is well aware—having been, as he said, the father, godfather and grandfather of the 1972 Act and much of the legislation that flows from it—and as I know and we all know, these matters are challenged. They are, from time to time, challenged by learned legal minds and there is dispute about them. Far from this clause being unnecessary, as the noble Lord, Lord Armstrong, ventured to argue with great clarity, I maintain that on the basis of our own experience—what we hear, read and see in the public debate—it is necessary that it should be in place. That is my view on Clause 57 but I will obviously think hard about the views that were put forward by extremely acute and expert minds on this matter. However, I said that I would set out how the Government see the matter and that is how we see it.

Amendment 59 was a very important part of the argument put forward by a number of noble Lords, including my noble and learned friend Lord Mackay of Clashfern. Let me explain why we have in there “an Act of Parliament” rather than “by virtue of the European Communities Act 1972”. I reassure my noble and learned friend that we have thought about this very carefully because it is a complex balance of issues and we wanted very much to get it right.

The Government accept that Section 2(1) of the European Communities Act is commonly identified as the primary way in which EU law takes effect in the UK, but unfortunately that is not quite right. There are other Acts which can be interpreted as giving effect to EU law within the UK; for example, there are some provisions of the Scotland Act 1998, the Government of Wales Act 2006, the Northern Ireland Act 1998—and I believe there were other earlier Northern Ireland Acts as well, as I remember taking part in some myself. Then there are the Enterprise Act 2002 and the Equality Act 2006. They all put Ministers under an obligation to act in accordance with EU law without reference to the European Communities Act—and there may be other such Acts in future. Who knows? We have to prepare for these things. It was to address this concern and those facts that Clause 18 was deliberately drafted to refer to Acts in the plural, or an Act of Parliament, rather than solely referring to Section 2(1) of the European Communities Act 1972.

I reassure my noble friends that having carefully thought about it and come down on that side of the argument, which we believe to be the comprehensive and effective one, there was no sinister purpose. It was simply a design to ensure that all the means by which directly effective or applicable EU law could be given an effect in the UK legal order are addressed. That is the raison d’etre and the underlying argument why the clause is there, why it is necessary and why it is so worded.

I would like to say a final word, or semi-final word—or penultimate word—about the point made by the noble Lord, Lord Kerr, at Second Reading, which he touched on again today. He queried what on earth paragraph 113 was doing in the Explanatory Notes, which refers to the,

“UK subordinate legislation … and … Acts and Measures of the devolved legislatures”.

The answer is that EU law can be given effect in the UK legal order, not only directly through primary legislation but through means of delegated legislation adopted under primary legislation. The obvious example of this is the secondary legislation giving effect to EU measures adopted under Section 2(2) of the European Communities Act, and the reference in Clause 18 to,

“by virtue of an Act of Parliament”,

covers that aspect.

I said that was my penultimate comment. My noble and extremely learned friend Lord Howe did that dangerous thing of mentioning the Commonwealth, which has not really come into this Bill at all. I cannot resist making the point that if we are to promote the interests of this nation as a positive member of the European Union, and to do so fit in to this extraordinary new world in which all the wealth and accumulated savings and first the economic and now the political power have shifted to a degree away from the Atlantic nations and the West to the new emerging worlds of Asia, Africa and Latin America, these are the new networks in which we must also involve ourselves. We must work to ensure that our European membership enables us to take our full part in these things to reinforce each other.

I had to get that in, only because my noble and learned friend tempted me. It has very little to do with the amendment, but I think that I have explained why the two points raised by noble Lords with great learning and authority fit in to the fact that the clause is necessary; it may be declaratory but it does a job, and that is why it is there, and it is drafted as an Act of Parliament rather than the European Communities Act 1972 but deliberately and carefully.

I think I said a word about the amendment intended to help proposed by the noble Lord, Lord Lea. I assure him that there is no way in which Clause 18 alters the commitment or position of the primacy of European Union law, which in turn rests as it always must on the will and Act of Parliament supported by the courts. That is why I would ask noble Lords and the noble and learned Lords to consider what they have put forward and withdraw the amendment.

European Union Bill

Lord Triesman Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Richard]

My Lords, I have looked at this section and tried to construe and understand it, which was difficult. If I may say so, we are making rather heavy weather of the phrase “or otherwise support”. There is only one issue that the House ought to consider—is the legislation clear as presently drafted? If it is, then of course a lot of this argument is negated. If it is not clear as drafted, someone—almost certainly the Government—ought to put it right. I am doing my best with this phrase,

“or otherwise support a decision”,

but I am finding it difficult to understand what it means. I do not know what “otherwise support” means. Does “otherwise” refer back to the original approval, or to something less than the approval that you are minded to support? This is an extremely difficult concept to grasp. In short, is it clear? The answer to that is no. Should it be amended? The answer to that is yes. Who should do the amending? It should, on the whole, be the parliamentary draftsman. If ever there was a case in which the Government should say, “Right; we agree there is something here that we can look at again”, this is one.

[Lord Triesman]

I have the same difficulties that have been expressed by a number of noble Lords in this debate. Broadly speaking, as my noble friend Lord Liddle and I have said on several occasions from this Dispatch Box, our position is that the kind of arrangement in Clause 7(1)—the requirement for Parliament to undertake the necessary work in all these circumstances—is well understood. It would increase the amount of parliamentary work on European legislation and would inevitably increase the amount of scrutiny we placed on such legislation. That is bound to be a good thing. In our submission, it is also bound to reflect well on Parliament and its responsibility to do the job adequately, without turning to a multiple requirement for referenda.

This clause, at least in some of its wording, is not just a lock but a double lock. There are two kinds of locks in it. The first is that, apart from the matters covered in the clause, there will be a referendum lock, and there is a double lock on the political process in which a Minister might take any reasonable part in any reasonable discussion of any reasonable proposition in order to make sure that their parliamentary colleagues—let alone the public—know what the issues are and how they stand on them.

There is no difficulty with the notion of the first part, where the requirement is,

“may not vote in favour”.

That is the point on which, I suspect, there is a great deal of agreement around the House. However, I do not think that the use of “or otherwise support” is a simply a drafting or technical matter. I rely in part on the fact that those words appear in many clauses. This is not the only example. Clause after clause imposes the requirement. In general, when we have talked about these kinds of clause, the government Front Bench has indicated that in some sense—not in any sense that Ministers have described to us, and certainly not in any detail—it will be all right on the night and that it will not somehow have got in the way of anyone engaging in serious political work.

We first moved an amendment to delete that wording some time ago; I continue to believe that it is unhelpful and inappropriate. I put to the Government the following thought, which flows from ministerial experience—a good many Members of this House have real ministerial experience in this and other foreign affairs issues. Ministerial experience tells me that it is wholly impractical to try to do the political job without being able to speak on any matter of substance while you are doing it. Your processes of thought—the decisions to which you may come not instantly but as a result of discussion—must remain wholly obscure. Can you even say that you wish to deploy the knowledge you have of the issue? Can you say that you think that it is in the national interest that the issue is thought about and resolved? Can you find words in the process in which you are engaged—some of us have been engaged in these processes in much detail over the years—that are so neutral that nobody could misunderstand any word or syllable that you said as being other than completely neutral and not demonstrating any inference of support? Can you realistically anticipate that everyone will agree that what is said is so neutral that they will not claim that it is a breach of the law when they do not agree with you or the outcome? We have heard noble Lords saying in terms that they are in fundamental disagreement with almost anything. I do not mean noble Lords on the government Benches—they are just happily confused—but noble Lords in UKIP, for example, have found it almost inconceivable that anything that could be said would not represent some slippage into a greater presence of Europe in the United Kingdom.

I say to the noble Baroness, Lady Falkner, that it is not a matter of how she reads Clause 7(3). Of course it is all about decisions. Draft decisions are bound to give rise to the expression of a view, or nobody would have drafted them. That is precisely why you would draft a decision. I cannot believe that we do not agree on that basic proposition.

[Baroness Falkner of Margravine]

Does the noble Lord then agree that “or otherwise support” could as easily imply assent—in other words, agreeing to support it?

[Lord Triesman]

No, my Lords, I do not agree with that. In the process of any kind of discussion, people will say something which either indicates support, or which they hope is sufficiently neutral not to indicate support but others will say that they believe that it does. The moment that anybody drafts anything, it will be seen or thought to be a clear indication of support by the very nature of going through the process of drafting it and putting it into the public domain. In real politics, that is precisely what will happen.

That is all fundamentally unhelpful, and I really hope that in their own interest—because at the moment they provide the Ministers who are taking part in discussions in Europe and elsewhere—the Government will not put themselves in so calamitous a position as to be unable to operate effectively.

[Lord Dykes]

Is there not a further irony that shows how throughout the Bill, from Clauses 2, 3 and 4 up to Clause 7, which basically deals with the system of passerelles, there has been a problem for the Government of trying to find the correct draftsmanship and making it incredibly complicated as a result? Is it not ironic that the then Conservative Government in the mid-1980s were mad keen on the passerelles to help the Single European Act—that was when the system first started? Subsequently, there were very few, but in the Lisbon treaty, all the member states regarded them as indispensable to allow the Union to move forward on matters which had already been decided in substance—that is Clause 7 in essence—and therefore did not require an intergovernmental conference or a unanimous decision. Why is there so much agony for the government draftsman about this unnecessary clause?

[Lord Triesman]

My Lords, I can only say that I strongly agree with the point that the noble Lord, Lord Dykes, has made. It does not make any sense at all either historically or in terms of what is required now.

The point made by the noble Lord, Lord Kerr, about specific deployments and whether the wording is helpful or unhelpful also leads me to an area of agreement. It appears to me that, in choosing this drafting in the Bill, the Government have once again ignored a fundamental principle of political process. Any of us, whether we are in this House or have been involved in other organisations where some politics, with a big P or a small p, are going on among those who are taking part will recognise the circumstances perfectly well. I have found, as I suspect many noble Lords have done, that people occasionally welcome the chance to speak out and say that they do not like something. They like to be given the visible opportunity to fight their corner and, in the end, they find it far easier and a much more comfortable position to be seen to have been defeated in whatever it was they were arguing and to live with the result than to appear to have supported the issue in the first place. That, I think, is a commonplace in political life. I do not deny for a moment that I have enjoyed the fact that I have been able to present an argument and have lost it and that something else potentially more rational than anything I suggested has then happened. That occurs in the normal course of political life.

Unanimity, which could allow a slightly different process to occur in relation to enhanced co-operation, gives room for real politics in really difficult circumstances. Therefore, I say to the government Benches that, when they reply and explain to the noble Lord, Lord Kerr, what Clause 7(4)(c) means—I, too, am quite keen to know what it means—perhaps they will tell us how they expect real politics to work. I refer not just to how they have locked out the possibility of it working but how they expect it to work and how they expect to give Ministers who are in senior, responsible and authoritative positions the ability to do the job that I think the people of the country expect of them individually and of Parliament.

[Lord Empey]

My Lords, before the Minister replies, perhaps I may take up the point which the noble Lord, Lord Triesman, has just made and which the noble Lord, Lord Kerr, made earlier regarding what he described as commonplace political processes in which someone would much rather be defeated on an issue than argue their case differently. In theory, that sounds perfectly reasonable. However, is that precisely because Ministers’ rhetoric and Governments’ rhetoric in the past has never quite matched the decisions that have emerged?

It is commonplace in politics for someone to put forward an argument, and the noble Lord, Lord Kerr, quoted the German case. To avoid a certain procedure within the German constitution, people would say, “A nod and a wink. I’ll do a bit of talking here. I’ll put up a good fight but at the end of the day I know perfectly well that I’m going to get beaten and therefore everything will be all right on the night”. In some senses, that can be seen as normal but others may see it as chicanery. People might see that as undermining the process in Brussels but some, and I am one of them, may argue that there was a prolonged period in history when cases were put in exactly that way with exactly that outcome, which led the people drafting this legislation to take measures—they may not be the most elegant but perhaps the Minister can confirm that they exist—to protect against that precise situation. Let us face it: if a parliamentary decision has to be taken on a particular proposal, a political argument develops in the media to try to influence it, and a Minister sitting at the table can play a major part in creating and framing the debate when it goes into the media and try to build support for it. There is nothing wrong with that. The idea that people are going there secretly with one particular agenda but in fact pretending to have another is precisely why the European Union is in so much trouble with the population of this country. I hope that the Minister can indicate whether that is part of the rationale behind this or whether our fears are unsupported.

--- Later in debate ---

[Lord Pearson of Rannoch]

My Lords, the question of whether this clause should stand part of the Bill gives us an opportunity to keep up to date with the Government’s present intentions regarding Article 3 of Protocol 21 of the Lisbon treaty. Perhaps I may remind the Government of their great leader’s statement made in late 2009:

“We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law”.

That is from the Prime Minister before he became so. The other quote I give the Government in probing this matter is from Mr David Lidington, made on 20 January this year:

“The UK has until 31 May 2014 to choose whether to accept the application of the Commission’s infringement powers and jurisdiction of the ECJ over this body of instruments or to opt out of them entirely, in which case they will cease to apply to the UK on 1 December 2014”.

More importantly—this is what I want to check up on—Mr Lidington went on to say that:

“Parliament should have the right to give its view on a decision of such importance. The Government therefore commit to a vote in both Houses of Parliament before they make a formal decision on whether they wish to opt-out”.

As I understand it, the provision in Protocol 21 allows the Government to opt out entirely from the whole justice and home affairs proceedings in Lisbon. It is true that if they accept an amendment to any of those provisions in the mean time, that provision then stands. Further, if in the mean time they opt in to anything, the 2014 deadline might not apply. I hope that your Lordships will feel it is helpful if the Government bring us up to date on how their decision is moving on opting out of the whole of the JHA provision. The last time I raised the matter was in Oral Questions, when I was told from the Front Bench by the noble Lord, Lord McNally, that this was all very difficult and sensitive and that the Government had not made up their mind. Have they made any progress?

[Lord Triesman]

My Lords, I shall not repeat the speech of the noble Lord, Lord Kerr, because it would have gone by so fast that what I have to say would not register.

We understand that, broadly speaking, the Government have up till now opted in rather than opted out of the arrangements made under this clause. Is there anything that they identify on the horizon which might lead them in the opposite direction to that which they have taken thus far?

[Lord Wallace of Saltaire]

My Lords, I have just spent the weekend in a part of France, the Dordogne, where English seemed to be spoken rather more often than French. I am conscious that the national interest in terms of co-operation in matters of civil and criminal law is a complex area given that there are now nearly 2 million British citizens living in other states of the European Union—in Spain, France, Portugal, Cyprus and elsewhere. I have to say in answer to the noble Lord, Lord Pearson of Rannoch, that we have not yet come to the point where we must take a final decision on opt-in and opt-out. I have say to the noble Lord, Lord Triesman, that Her Majesty's Government have opted in to the majority of measures which have come up since the last election, but perhaps I may quote holy writ, otherwise known as the coalition agreement, which states:

“We will approach forthcoming legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system”.

That is what we are doing.

Clause 9 deals in particular with the use of three passerelles specific to the area of justice and home affairs. These are in addition to the Government’s recent commitments to enhance current parliamentary scrutiny arrangements on the use of JHA Title V opt-in and Schengen opt-out decisions following the Written Ministerial Statement of my noble friend Lord Howell and that of the Minister for Europe on 20 January this year. As your Lordships' House will be aware, the details are subject to continuing discussions between Parliament and the Government, which is part of our commitment to enhancing parliamentary control over three key EU decisions.

I remind your Lordships that the passerelles are: Article 81(3) of the TFEU, which permits measures concerning family law with cross-border implications to be subject to the ordinary legislative procedure and therefore qualified majority voting; Article 82(2)(d) of the TFEU, which enables the Council to add to the list of criminal law procedures that can be subject to subsequent EU legislation under the ordinary legislative procedure; and Article 83(1) of the TFEU, which allows for additions to the list of criminal offences and sanctions in the areas of serious cross-border crime on which the EU can set minimum standards. These are considered to be sufficiently serious and significant moves for this clause to stand part.

The parliamentary approval process for the three passerelles comprises two stages rather than one. This reflects the operation of our opt-in protocol on the area of freedom, security and justice annexed to the treaties and, more specifically, the arrangements governing our opt-in. It requires two decisions to be taken: first, the initial opt-in to negotiations and, secondly, the adoption of the final negotiated measure. Clause 9 affords Parliament control over both these decisions by requiring a positive vote in both Houses to approve the Government’s proposal to opt in to the negotiation, and then parliamentary approval through primary legislation once the UK has opted into the negotiation and that negotiation is complete.

Having said that, the clause helps to fulfil pledges made in the The Coalition: Our Programme for Government, in that the use of any passerelle clause will be subject to approval through an Act of Parliament and represents an enhanced level of control afforded to Parliament. Having reassured the Committee on that, I hope that it will accept that this clause stand part of the Bill.

--- Later in debate ---

[Lord Pearson of Rannoch]

That would be just typical of the Eurocrats.

However, it is true that the Conservatives forced through the Maastricht treaty, so presumably they were quite pleased with it. Some of us resisted it in this House. In his defence, one has to say that Mr Major had discovered the error of his ways by 12 November 1996, when he wrote a letter to M Jacques Santer, who was then, whatever it was called at the time, the boss of the European Commission. The letter shows how Mr Major, and possibly the Conservative Administration at the time, realised how they had been deceived by the cunning and duplicitous octopus in Brussels. His letter is very brief, and I have read it to your Lordships before—in 1998, I think, so it bears repetition now. It reads:

“Dear Jacques,

My intention in agreeing to the Protocol on Social Policy at Maastricht was to ensure that social legislation which placed unnecessary burdens on businesses and damaged competitiveness could not be imposed on the United Kingdom. The other Heads of State and Government also agreed that arrangement, without which there would have been no agreement at all at Maastricht.

However, in its judgement today, the European Court of Justice has ruled that the scope of Article 118a”—

that is, health and safety at work, and things like that—

“is much broader than the United Kingdom envisaged when the article was originally agreed, as part of the Single European Act. This appears to mean that legislation which the United Kingdom had expected would be dealt with under the Protocol can in fact be adopted under Article 118a”.

The following is a good paragraph:

“This is contrary to the clear and express wishes of the United Kingdom Government, and goes directly counter to the spirit of what we agreed at Maastricht. It is unacceptable and must be remedied”.

He then says that he will table amendments and so on to it. His penultimate paragraph says:

“I attach the utmost importance to these amendments and I shall insist that they form part of the outcome of the Intergovernmental Conference. I do not see how new agreements can be reached if earlier agreements are being undermined”.

That was in the run-up to the Amsterdam treaty. The Conservatives then lost the election and the new Labour Government signed up to the Social Chapter anyway, so we have the working week and so on.

That is the full picture behind the noble Lord’s intervention. At least we can see that, by the time he left office, Mr Major had understood the nature of the beast with which he was dealing, although of course when poor Mr Blair came along, he went back to the whole business of being at the heart of Europe—being nice to them and so on. We get everything that we want and that is why we are where we are today.

Finally, the noble Lord, Lord Liddle, said that the reason the French voted against the Giscard constitution was that they wanted a more social Europe. My simple question to him is: why did the Dutch then vote in exactly the same way two days later? I support the amendment.

[Lord Triesman]

My Lords, obviously the past is made up of facts but, as today has illustrated richly, the retelling of history is made up of the view taken by those who look at the facts. Having listened to what has been said in this debate, I have to say that some of the accounts of the facts do very scant justice either to what took place or, indeed, to some other countries. To be told that people were made to vote again and that the referenda were enforced appears to give very little credit whatever to the determination of the peoples of Denmark, Ireland, France or Holland, and I do not see why we should spend our time here insulting them. They were perfectly capable of settling the first propositions put in front of them and they were perfectly capable of assessing the changes. If it is said that, for example, consent was finally achieved in Ireland because of the financial problems that the country was facing—bailed out, it was said, by the straitjacket of the euro—I find that an astonishing bit of history. The banking and liquidity collapse of the country appears to have had no role; the sub-prime derivatives in which the banks of that country were so heavily involved that it had to set up a “bad bank” to deal with the mass of debt that had been accumulated appears to have had no role; and the massive speculative forces in property, finally producing a major financial threat which arose from those kinds of difficulties, also apparently had no role.

[Lord Hamilton of Epsom]

Will the noble Lord give way? If he is quite comfortable about people voting in a referendum, saying no and then being asked again, what would he have said if the Irish had voted no twice? Would he have said that it was quite legitimate for them to be asked to vote a third time?

--- Later in debate ---

[Lord Triesman]

My Lords, however many times the Irish people were asked to vote would have been a matter for the Government of Ireland. In the same sense, I hope that we would have sufficient sovereign pride to conclude such an issue ourselves, although I think it highly improbable. Perhaps I may add that the circumstances in which people might be asked to vote a third, fourth or subsequent time seem not at all likely.

[Lord Flight]

A problem for Ireland when it adopted the euro was that the inflation rate there was much higher than in Germany, which resulted in virtually negative interest rates in Ireland. That resulted in people borrowing as much as they could and putting the money into assets such as property. That produced the property bubble, and the bursting of the property bubble was the main cause of the banking system’s problems.

[Lord Triesman]

My Lords, anybody who looks at the difficulties that have been experienced in many mature economies, whether or not they are in the euro, will recognise that the financial problems created by property speculation and, in particular, by funding sub-prime derivatives in the property market have nothing whatever to do with the euro in most cases. It was a wave of mad speculation—it can only be described as madness—because it was possible to do it under the interest-rate conditions that obtained generally around the world. They are not so varied between countries in either hemisphere.

Of course it is true that in the referenda conducted in the countries that we are discussing, they concluded, as they were perfectly entitled to do, that what was being put in front of them was not good enough. We know, however, in part from the noble Lord, Lord Empey, in terms of the role of the Commissioner in Ireland, and the issues that came up in Denmark on whether the people would be compelled into defence propositions that they did not like, or whether people in Ireland would be compelled to change the abortion law or consider NATO membership, that all of those things produced circumstances in which there was a no vote. Those Governments negotiated again and got those terms changed. Protocols were introduced in almost every incidence to get those terms changed. They then went back and asked the people of their countries whether the changes in terms were sufficient to merit a change in the view that they had taken.

That seems to me to be completely legitimate. I cannot for the life of me understand why someone would say that it is a legitimate outcome if you vote no by, say, 52.5 per cent—that is plainly a no vote; I understand that completely—but when it is put again it is completely illegitimate if something like 65 per cent of the people in that vote say yes. What is the point of a sovereign decision by people when they are asked to take a vote if you do not accept the outcome in either direction—like it or dislike it; it is irrelevant? It is their decision and they have taken it. The idea that any country, least of all this one, should feel that it is bound to be strong-armed into taking a different decision if the first decision does not accord with perhaps the general sentiment in Europe is completely fanciful. It is disrespectful to the people of this country and this debate has been disrespectful to peoples of other countries, too.

[Lord Wallace of Saltaire]

My Lords, this debate has ranged a little wider than the amendment. We have had accusations of the European elite forcing the holding of second referendums. I wondered whether we were going to be told by the noble Lord, Lord Willoughby de Broke, that the European gendarmerie would be used to force second referendums. I recall him previously raising the question of what the European gendarmerie was for. We talked about EU bullying as if somehow Brussels is different and imposes itself on national governments. I simply remind noble Lords that the European Union is an association of states and that Brussels operates on behalf of those member states. It is the member states which agree on proposals of the sort likely to be put to referendums.

On Ireland, I would simply say that the situation may or may not have been to some extent associated with Irish membership of the euro. The situation in Iceland was an even greater financial bubble and can in no sense be blamed on Iceland’s membership of the euro since Iceland is neither a member of the euro nor of the European Union. We need to get away from that. On the question of financing the Irish referendums, I am not aware of how the second referendum was financed beyond the fact that I have three very good friends in Dublin who took out substantial loans on their houses to guarantee the basic funding for a second referendum. When my wife and I had dinner with them some months after the referendum, they were still very heavily in debt. That suggests to me that there were no sugar daddies, let alone external forces, providing funding.