European Union Bill

Lord Anderson of Swansea Excerpts

Tuesday 26th April 2011 Lords Chamber

[Lord Kerr of Kinlochard]

I asked at the start of Committee why we needed Clause 3. Clause 3 refers to the simplified or accelerated method used in Brussels for producing a treaty amendment. Clause 2 refers to the product of the normal method used in Brussels. The product, by the time it reaches us, is exactly the same: it is a treaty amendment. How it began, who proposed it and which process was followed in Brussels are irrelevant to the ratification requirements here. We should decide the ratification requirements and any necessary referendum requirements on the basis of the weight of the amendment, not of the means by which the amendment was agreed in Brussels. I therefore asked why we needed Clause 3 as well as Clause 2. I have read very carefully the Minister’s answer at the end of the debate. He did not answer the question. He cleverly lured me into a semantic debate about competencies and powers, which we played into the sand, but we did not hear the answer as to why we needed Clause 3.

There is a difference between Clause 3 and Clause 2. If you eliminated Clause 3, you would eliminate something that is not in Clause 2. That is the final section of Clause 3, which contains the significance test. It is to that section that the noble Lord, Lord Liddle, is now proposing an amendment.

There is no significance test in Clause 2, which is the first of the two clauses setting out what we do when a treaty is amended. Does that mean that the Government believe that any treaty amendment made by the traditional method, however insignificant, must require a mandatory referendum? That seems to be the implication of having the test only in Clause 3 and not in Clause 2. I would be inclined to argue that we should eliminate Clause 3 now but transfer subsection (4) to Clause 2, so that the significance test, whatever its form—the form in the Bill, the form as revised by the noble Lord, Lord Liddle, or the form as revised by others—applies to any treaty amendment. That seems to be logical.

The noble Lord, Lord Howell of Guildford, used two arguments which perhaps play on the question. One was implicitly that Article 48(6), the accelerated method, would be used for the trivial, whereas the full-dress method, Article 48(2) to (5)—Clause 2 of this Bill—would be used for the heavy stuff. That may be so, but it does not seem very plausible to me. The noble Lord argued that we need not worry about having a series of referenda on the trivial because amendments would be bundled. He said that, from his long experience of Brussels, he knew that that was the way it worked. That is completely correct. In the past, treaty amendments have been brought together in a bumper-package intergovernmental conference, resulting in a new treaty or a massive treaty amendment.

In my view that will not be the case in future. A lesson has been learnt that it is not right to lump a whole series of questions together. The answer in the French referendum and the Dutch referendum came about partly because a whole lot of measures—not all of them necessarily very large—were put together and people were asked whether they would buy the package. If there is anything in such a package that you do not particularly like, the reasonable answer is to say no. The European Union has learnt from that and the Article 48(6) method—the Clause 3 material—will not be trivial relative to the Clause 2—or Article 48(2) to (5)—material.

[Lord Anderson of Swansea]

Is there not a logical problem in saying that because a number of insignificant matters are lumped together, they will by definition become significant? If they were to be lumped together as the noble Lord is saying, surely it would be very difficult for someone who accepts one matter but not others to vote in a particular way. But surely a bundle of insignificant matters does not by itself therefore become insignificant; it becomes significant.

[Lord Kerr of Kinlochard]

That seems likely to be the case. I agree with the noble Lord.

The second argument that the noble Lord, Lord Howell, used was about time. Here I have to say that I warmly welcome the amendment proposed by the noble Lord, Lord Liddle, which brings in the concept of urgency. It seems to me that the situation in which Article 48(6) is likely to be used will be the urgent situation. That is what was in the minds of those who invented the Article 48(6) procedure. The heavy procedure under Article 48(2) to (5)—Clause 2 of our Bill—contains provisions for a convention of representatives of national parliaments and the European Parliament meeting with representatives of the member states. It also contains provisions for doing away with that and concludes with a two-year period for national ratification. These timetable elements, and the reference to the convention, drop out in the accelerated method. The idea of a two-year delay has gone in Article 48(6), just as the convention has gone. People had in mind that there could be crisis situations in which the European Union would need to revise its texts quickly—hence Article 48(6). That makes it a little paradoxical that we are insisting on adding a referendum requirement.

More than that, we are—as the noble Lord, Lord Goodhart, pointed out at the start of our first day—doing something that we have never done in this country before: we are providing for an Act of Parliament to be overruled by a referendum. That is literally unprecedented, and we would be doing it in relation to matters, if they were under Article 48(6), where we had voted in the Council for an urgent change, since nothing can be done other than by unanimity in the Council. Everybody has voted for it; it is sufficiently urgent to justify the accelerated procedure; it goes through the House of Commons and through the House of Lords; but under this Bill it then requires a referendum which could overrule an Act of this Parliament. That is why I think that there is something really dangerous in the Bill, not just in terms of our position in the European Union but in terms of our basic constitutional position in this country. I really do worry about it.

I come back to the amendment tabled by the noble Lord, Lord Liddle. It must be right to introduce the concept of urgency and to make the tests not cumulative. It seems to me that Amendments 16A and 16B deserve our support. However, even if they were included in the Bill, I would still argue that Clause 3 should not stand part of the Bill, because in logic you do not need different procedures depending on how it started over there. The procedures you follow should be decided by the significance of the measure itself.