European Union Bill

Baroness Falkner of Margravine Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Hannay of Chiswick]

My Lords, the noble Lord, Lord Kerr, and the noble Baroness, Lady Williams, have clearly explained the problems associated with the term “or otherwise support”. I wish to give an instance of where a problem may arise. The Council in Brussels may be discussing a measure which requires unanimity—our agreement—in terms of some outcomes that would be unacceptable to us, and others that would be acceptable to us once Parliament had endorsed them. How is the Minister to express that preference? There is a real risk that “or otherwise support” could be interpreted in a way which prevents the Minister expressing that preference. That, surely, would be completely counterproductive because in such circumstances we want to be able to say—do we not?—that one or more courses of action would be unacceptable to us and we would not agree to them there and then, but that another course of action could be acceptable to us once we had the authority of Parliament to make a legal decision possible. Taking all these points together, I hope that the Ministers will break their duck and agree to a change. After all, we have been sitting here for I do not know how many hours and so far they have not managed it. I would like to encourage them to try a little harder.

[Baroness Falkner of Margravine]

My Lords, I would like to speak briefly to a point made by the noble Lord, Lord Kerr of Kinlochard, specifically on Clause 7(3). He mentioned the coalition agreement. I think that on day five in Committee we discussed the coalition agreement and what it said about passerelles. Does he agree that the coalition agreement is clear on this particular use of passerelles, as it says:

“We will amend the 1972 European Communities Act so that … the use of any passerelle would require primary legislation”?

As regards his other more general points, the report of the Constitution Committee, which discusses Clause 7, concludes at paragraph 41:

“We agree with the re-balancing of domestic constitutional arrangements in favour of Parliament”.

Both those statements point in a different direction from that proposed by the noble Lord, Lord Kerr.

[Baroness Williams of Crosby]

I hope that my noble friend will forgive me for breaking into her remarks but I find it hard to understand why that encompasses the words “or otherwise support”, given the arguments that have been made. I do not believe that the noble Lords on the Cross Benches, or I, are for one moment arguing that there should not be an Act of Parliament. The issue is about the run-up to the draft decision that Parliament will make, and whether that run-up should include a proper debate involving Ministers of the Crown.

[Baroness Falkner of Margravine]

I was getting to that. Whoever said that EU legislation was dull and boring should see the enthusiasm of Members of this House to make sure that we examine every sentence. I was going to refer to the comments of the noble Baroness, Lady Williams, on “or otherwise support”, and I shall do so now. Clause 7(3) states:

“A Minister of the Crown may not vote in favour of or otherwise support”.

However, that has to be read in the context of the following words:

“a decision to which this subsection applies unless the draft decision is approved by Act of Parliament”.

My interpretation of the words,

“or otherwise support a decision”,

is a slightly more legalistic one. Will the Minister clarify that point? I see “or otherwise support” as meaning to give assent to “a decision”—meaning a law. In other words, that is a decision as seen in the category of regulations, directives and decisions—in this case, a decision taking immediate effect. That is why supporting —in other words, giving assent to—the making of a law would not be possible, but the Minister would have to come back with a draft decision, and subsequently go back and support it. This might be a rather legalistic view of the issue, but I should be grateful if the Minister can confirm whether that is right. If it is, the words are entirely sensible.

[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.