European Union Bill

Lord Williamson of Horton Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, in this group is Amendment 59, to which I have put my name along with distinguished colleagues, including the noble Lord, Lord Lester of Herne Hill, to whom I shall refer in a moment or two.

We have had an excellent introduction to the amendment from the noble Lord, Lord Hannay of Chiswick, and I am very grateful to him for that. My view is that Clause 18 is unnecessarily vague when it talks about “an Act of Parliament”. It states:

“It is only by virtue of an Act of Parliament that”—

and so on. The Act of Parliament that does that is the European Communities Act 1972 and its amendments, all properly described in a Bill of this kind as the European Communities Act 1972. Our amendment substitutes that absolutely clear and positive statement for the rather vague statement in the Bill. I cannot understand the advantage of vagueness in this context, when precision is possible without any difficulty.

Secondly, I do not regard this as of no value. There is a view in some quarters that when you join the European Union treaty, the legal order of the Union has the effect of making directly effective Union laws in all member states. We in this country have taken the view that it is the Act of Parliament, not the European Union order itself, that gives the Union legislators, particularly in relation to directly effective law, authority in our country. Parliament gave that authority and, as long as Parliament continues to give that authority, that is the basis on which the law is applicable in our country. There is no threat in this to the sovereignty of Parliament, as is sometimes suggested. Parliament, the sovereign Parliament, introduced that Act, and the sovereign Parliament is keeping the Act in position. That is a perfect authority for the legislation from Europe to be given its effect according to European law in this country.

The alternative view that the Union by itself has a legal order which effectively reaches down into the legal systems of member states without further legislation in the member states is, possibly, not all that different in effect from our view, except that I think that theoretically we have the right position here, and I would like to adhere to that.

The difference, although it is a rather narrow one, can have an effect, particularly in relation to the clauses which are called passerelle causes in the Lisbon treaty, where some extension of a European treaty is brought into being by the operation of those provisions. There was a debate in this House some time ago about those in relation to the ratification of the Lisbon treaty. My personal view is that in that situation, the ultimate decision would rest with the courts of this country on whether a particular treaty was binding here. The other point of view would say that the ultimate decision rests with the European Court of Justice. Therefore, Clause 18, stating our position as the basis of the constitutional arrangements for European legislation to be effective here, has importance. I would certainly not like to see it dropped, as long as it is clarified in the way that our amendment suggests.

My noble friend Lord Lester of Herne Hill, who is unable to be here tonight because of a long-standing appointment to which he was committed, was kind enough to say, having heard in advance what I was going to say, that he agreed with it. He also wanted to make the point that there was some discussion on the original Explanatory Notes about the basis on which parliamentary sovereignty has been established in this country. He wanted to say as an addition, slightly aside from the substance of the matter, but still with reference to the Explanatory Notes, that the authority for the sovereignty of Parliament in our country is the decisions of the courts, who recognise that authority. There is no possible question about that. I do not see how Parliament itself can establish its own supremacy without it being recognised by the courts of law. That is where the doctrine came from. That is the additional point that my noble friend Lord Lester would have made if he were here, and I am trying to make it for him.

[Lord Williamson of Horton]

When I read Clause 18, I took the view that it corresponds to what is our practice in this country, as explained by the noble and learned Lord, Lord Mackay. That approach has been confirmed in at least two judgments in the courts, as well as in our general practice and how we describe the question of the status of EU law. Why is it here? I understand that clearly. There has been considerable discussion about parliamentary sovereignty, so I understand why the Government have proposed this. Discussion in the House of Commons confirmed that concerns over those issues and whether that should be covered in statute remain. The Government have put it into statute. That does not change the substance, but it must change something, because it is here for the first time in statute; whereas before it was the practice of the courts based on the European Communities Act 1972. That is how it worked. I fully understand all that.

Here we have two amendments. One would leave the text exactly as it is but add something which comes from the Explanatory Note. That point could be looked at carefully, but it does not change Clause 18 as presented by the Government. It is not being changed; something is being added to it. The other amendment, in the names of the noble Lord, Lord Kerr of Kinlochard, and the noble and learned Lord, Lord Mackay, changes to a modest degree the text which has been put on the table. It changes it by making explicit that it is by virtue of the European Communities Act 1972 that we have recognition of availability in law of EU legislation. It is explicit on that point. It avoids the initial phrase in the Bill, which states:

“It is only by virtue of an Act of Parliament”.

It is a clarification of that point. However, it does not change the basic structure of the way in which we deal with Community legislation. We deal with it by the authority of an Act of Parliament. That is how we operate and it is absolutely imperative to stick to that. It is how we have operated ever since we have been in the European Community—or, now, the European Union—and recognition of that in statute is perfectly reasonable. There are two amendments but, in particular, we have to decide whether the wording of Amendment 59, which makes the situation explicit with the words:

“By virtue of the European Communities Act”,

and does not include the specific phrase:

“It is only by virtue of an Act of Parliament”,

is clearer and more likely to avoid misinterpretation. I tend to favour Amendment 59 for that reason.

[Lord Howe of Aberavon]

My Lords, as I rise to support this debate, I sense a curious parallel of feelings. Quite recently I received in an e-mail, in the magic way that one does, a photograph of our eldest daughter holding in her arms her grandchild. That means that the noble Baroness, Lady Howe of Idlicote, and I have simultaneously become great-grandparents, and it is with that sort of sense that I now look back on this section of the European Communities Act 1972.

The remarkable thing is that from the outset it was understood that joining the European Community, as it then was, involved the arrival of a situation in which Community law was to be directly applied in this country. My noble friend Lord Howell knows that as clearly as I do because, as I have said before, we published a magnificent article written by Dennis Thompson entitled The Rome Treaty and the Law long before we were in a position to introduce legislation. The striking thing about that article was the same striking thing that we are discussing now—namely, the direct application in this country of existing law and law yet to be made in the European Community. For a more respectable origin than that, I go back to the White Paper produced by the Wilson Government in 1967 before we succeeded in getting membership of the Community. The White Paper says:

“‘If this country became a member of the European Communities it would be accepting Community law. By ‘Community law’ is meant the whole body of legal rights and obligations deriving from the Treaties or their instruments’”.

I am quoting from Hansard of 1972. I interposed, “So far, so good”, and then continued,

“it would be necessary to pass legislation giving the force of law to those provisions of the Treaties and Community instruments which are intended to take direct internal effect within the Member States”.—[Official Report, 17/2/72; cols. 650-51.]

That was foreshadowed in 1967.

Perhaps the most striking phrase in Section 2(1) of the 1972 Act is “without further enactment”. Therefore, the legislation that we were passing meant that laws made within the Community structure took direct application here as a result. There was, admittedly, some variation in that because that is how regulations took effect, whereas directives needed to be converted into English law, as they did not have direct application.

Therefore, there is no surprise about this provision. The only surprise that I have had has been the emergence of Clause 2 of the Bill. Speculation was rife throughout the country when we were preparing the Bill that became the European Communities Act about whether it was going to be a one-clause Bill, a 10-clause Bill, a 100-clause Bill or a 1,000-clause Bill. There was tremendous speculation along all those lines. In fact, this central provision was absolutely fundamental. It has been fundamental from the outset and has been part of our membership of the European Community. It is not a burden upon us; it is beneficial to us but within the framework of the European Union. To take the most obvious example, how would we have been able to ensure that the French withdrew their ban on BSE-tainted beef? The legislation that we were entitled to invoke to make that happen was legislation of this kind, particularly in France. It has always been fundamental and I really cannot see how one can question its importance and value. The question is how it is best expressed now in the light of the Bill before us.

European Union Bill

Lord Williamson of Horton Excerpts

Tuesday 17th May 2011 Lords Chamber

[Lord Goodhart]

My Lords, we have now moved on from Clause 6 to Schedule 1. I am speaking to Amendments 45 and 47. I selected them because they are related to law and I am, of course, a lawyer.

Amendment 45 would exclude TEU Article 19(2) from the list of articles where a referendum would be required to approve a treaty which removed the need for unanimity, consensus or common accord with respect to that article. Amendment 47 seeks to exclude TFEU Articles 82(2)(d), 83(1), 86(1), 86(4), 87(3) and 89 from a similar list. None of these articles is remotely appropriate for a referendum.

TEU Article 19(2) is concerned with judges and advocates-general of the European Court of Justice. This subject is miles outside the interests or knowledge of anyone other than a few legal specialists.

TFEU Article 82 deals with the principle of mutual recognition of judgments, with judicial and police co-operation in criminal matters having a cross-border dimension. TFEU Article 83 deals with the establishment of minimum rules concerning the definition of criminal offences in the field of particularly serious crimes with a cross-border dimension. TFEU Article 86 deals with the EPPO, which I discussed in a previous debate and do not need to repeat. TFEU Article 87 deals with police co-operation between states involving the prevention, detection and investigation of criminal offences. TFEU Article 89 concerns conditions under which competent authorities subject to Articles 82 and 87 may operate in agreement with authorities of another member state. These involve cross-border agreements which are a matter of specialist information and would have a minimal effect on any citizen of the United Kingdom.

All these articles are already operative and require unanimity, consensus or common accord. There is nothing in these articles which provides for anything other than unanimity. As I read it, Schedule 1 would apply if—but only if—an amendment to the TEU or the TFEU is in future introduced to allow QMV or other modifications of unanimity. These amendments apply only to judicial and police systems and would have virtually no effect on the United Kingdom judicial or police system.

The circumstances in which a Government might wish to agree to removing the need for unanimity are entirely uncertain and unpredictable. It might be patently in the interests of the United Kingdom to switch to QMV so as to block the future misbehaviour of some other member country. The alteration involved might be trivial. Would it not be better to leave it to the Government of the day to decide whether or not to call a referendum?

Referendums are expensive and time consuming. They should be used only for matters which are of real interest and importance to the community which is called upon to vote. None of the provisions that these two amendments would delete can be said to fall into that category. I beg to move.

[Lord Williamson of Horton]

My Lords, I have waited rather a long time to come into this debate. Having spent 16 years extremely closely involved in the European Union, more so than any other Member of the House, I thought I might come in briefly on this point in particular. We have had a presentation by the noble Lord, Lord Goodhart, which is quite specific to the proposal—a unique experience in some days of this Committee—and therefore we can concentrate on the point specifically, and that is what I would like to do.

We have now come to Schedule 1. The amendments to Schedule 1, which are all grouped together, are what I might call an à la carte menu, in that they all refer to separate issues but are grouped together. The amendments, including the one that has just been moved, would affect Schedule 1 quite substantially. They would have quite different effects but, they would reduce the extremely long list of 40 items in Schedule 1 which would be subject to the referendum block. If we examine them—if these referendums ever happened, which I do not think will be the case—there could be well over 40 referendums as a result of this schedule because some of the points cover various different issues within one article. Let us take it that Schedule 1 provides for 40 potential referendums dealing with issues such as the appointment of judges and other European Court of Justice personnel.

The whole of Part 2 of Schedule 1 would be deleted by Amendment 46. Specified issues relating to criminal procedure are the subject of Amendment 47. We also have the reverse, in that we have a proposal to add to the list in Schedule 1. Of course, we shall then come to whether Schedule 1 stands part. Therefore, the whole of Schedule 1 is in issue here.

The specific points under discussion require examination. This Chamber is the type of body that should look at these things in detail, and we should do that rather than just discuss broad issues about whether we are for or against the European Union. We should look at the proposals in front of us. The possibilities presented here should cause us to reflect on whether it is right to have a single mechanism—that is, a referendum—as the method of dealing with any possible changes in all the articles that are referred to in Schedule 1.

I have intervened only once to pose a question to the Minister. I do not think he actually replied but he is reflecting on it, no doubt. I will put the question again. Will the Minister consider, between now and Report, whether there are any items in Schedule 1 which could be removed from it and treated in the traditional manner in which we deal with issues in our system, namely by an Act of Parliament? We will come on later to articles where there are decisions to move by Act of Parliament, to which the Minister has already referred. It is our duty as a revising Chamber to decide whether all the items in Schedule 1 should remain there or whether some of them could be dealt with, as was recommended by the noble Lord, Lord Goodhart, by the traditional method. That is an issue which should not just be put aside but should be reflected upon and referred to again on Report to see whether any changes should be made there.

I have one other point. Irrespective of the disagreements that we have seen demonstrated in this Committee about whether we are for the membership of the Union or wish to leave, or at least wish to have a public opinion on that point, we need to look at these quite specific points. When you look at the scale of this schedule, we are taking what I think is really a step change in the way in which we deal with issues by referendum or by parliamentary discussion and parliamentary Act. This is a really enormous change. It goes beyond the scope of this Bill, in my view. To tell the British public that we are presenting and perhaps passing a Bill which has the potential to give rise to 40 or 50 referendums on issues which a large number of people think are not very important is in fact quite an important issue.

I am sure that in future years people will say, “Well, we’ve moved over quite a bit towards a system of operating by referendum, so why do we not have referenda on other important things that involve our resources going outside the country?”. A good example would be international aid, which would be quite an interesting choice of the sort of issue that is being dealt with in the Government’s proposal in this Bill. We could have one on immigration or quite a lot of other things. In my view, there will be pressure in future years for more referenda on many of these issues because, by taking this Bill through, we will have accepted that we are abandoning the system of decision by Acts of Parliament on a large number of issues. We are accepting that and changing very basically how we do things. We may think that we are just dealing with this Bill; in my view, we are dealing not just with this Bill but with an important precedent for the use of referenda elsewhere.

I would like to make that point because it is customary in the Committee stage of this Bill to make points that go rather wider than the immediate issues. I thought I should like to have my chance to do that before we come to the seventh, or possibly eighth day, of Committee. I welcome what the noble Lord, Lord Goodhart, said on the specific amendment.

[Lord Flight]

My Lords, I congratulate the noble Lord, Lord Williamson, on his summing up of Schedule 1 from where he stands. As noble Lords will be aware, there are very much opposing amendments within the amendments that have been grouped together for Schedule 1. I have tabled Amendment 47A, which is really at the other side of the table from Amendments 45, 46 and 47, which I do not support.

Amendments 45 and 47 seek to remove JHA vetoes, including on police co-operation and the EPP and the veto on the appointment of judges, which I would argue are precisely the type of treaty changes that would extend competence from the UK to the EU in sensitive areas and which actually warrant a referendum. Amendment 46 removes all vetoes in TFEU from the referendum lock covering sensitive areas such as social security, social policy, employment policy, justice, home affairs and some tax and defence issues.

Amendment 47A, to which I am speaking, raises a further area of potential transfer of powers from the UK to the EU and proposes the requirement for a referendum which has not been included in the Bill. This is really an illustration that the Bill has not, as some have argued, covered every conceivable territory of transfer of powers but aims to pitch the requirement for a referendum on what the Government perceive as major red line areas.

As noble Lords will be aware, few aspects of trade agreements are now subject to unanimity post-Lisbon. The norm is now a majority. Amendment 47A would subject to a referendum an amending treaty or Article 48(7) TEU ratchet decision, which abolished the veto over negotiation and conclusion of EU trade agreements with non-EU countries and international organisations in the three main areas that were exemptions in Lisbon and covered sensitive issues and thus remained subject to unanimity. First there are the agreements which cover trade in services, the commercial aspects of intellectual property or foreign direct investment, where the agreements include provisions for which unanimity would be required for the adoption of equivalent internal EU rules. That is the most important of the three. Secondly, there are the agreements covering trade in cultural or audiovisual services that,

“risk prejudicing the Union’s cultural and linguistic diversity”.

Thirdly, there are agreements covering trade and social, education or health services that risk seriously disrupting the national organisation of such services and prejudicing the responsibility of member states to deliver them.

EU international trade agreements are binding on member states. The removal of the national veto in some or all of these areas would represent a transfer of power from the UK to the EU in politically sensitive and economically important territories.

European Union Bill

Lord Williamson of Horton Excerpts

Tuesday 3rd May 2011 Lords Chamber

[Lord Flight]

My Lords, it seems to me that the three areas where the noble Lord, Lord Liddle, is suggesting the lock-in of the referendum should be removed are fundamental to the argument about needing to have the requirement for referenda to lock in the position as it now is. They are about our common law system, our criminal justice system and our social security provisions. These are crucial areas and, as others have pointed out, because of their importance we negotiated, and were satisfied to get, the emergency brakes at Lisbon.

Some may not agree or be comfortable with the use of required referenda to act as a lock-in to the position that we are in; that is their view. But the whole point of the Bill is to protect citizens against UK Governments, as they have done over the past 20 years, gradually ceding more and more powers without any form of consent from the electorate or from changes in Europe to which the Government are not necessarily a party having the same effect. It would be completely illogical for the Government, having decided to embark upon this Bill, suddenly to say, “We are quite happy after all not to have the lock-in on the crucial area where we have emergency brakes”. The amendment is rather, dare I say, a waste of time, because it goes to the heart of what the Bill is about.

[Lord Williamson of Horton]

I pose a question to the Minister and not just to join side 1 or side 2, which is a feature of Committee. We are dealing with Clause 4, which is headed, “Cases where treaty or Article 48(6) decision attracts a referendum”. The purpose of the amendment is to remove some elements from that requirement. We will soon discuss a whole series of amendments—Amendments 23B to 23M—which relate to different subjects but have the same single purpose. They identify areas where, if a proposed decision is considered beneficial to the UK, it could be decided by Parliament without a national referendum. That is what we are talking about on this amendment and will be talking about on many more amendments, which will probably take us right up to dinner time.

Of course, some of these questions could probably be decided in any case under existing powers without any treaty change—that is quite possible in many cases—or any decision under Article 48(6). However, areas such as cross-border crime, which is the subject of a couple of amendments, might require such a decision. For this reason, I pose this question. I emphasise that it is a question, not a statement of opinion. If the Government, or more importantly Parliament, consider a small change that would require the operation of, for example, Clause 4(1) or Clause 6(5), and they thought that it was advantageous to the United Kingdom to do so, can the Minister envisage any circumstance in which it could be adopted without a referendum? I exclude from the question codification, which we will come to; measures applying to other member states but not to the UK; and accession treaties covered by Clause 4(4). That last point might be disputed, as it was earlier in the Committee. However, I pose my question. It is important for the further consideration of the Bill that we should know whether future decisions that are favourable to the UK but that would require these changes can ever be decided without a referendum.