EU Referendum and EU Reform (EUC Report)

Lord Boswell of Aynho Excerpts

Wednesday 15th June 2016 Lords Chamber

Moved by

[Lord Boswell of Aynho]

That this House takes note of the Report from the European Union Committee The EU referendum and EU reform (9th Report, Session 2015–16, HL Paper 122).

[Lord Boswell of Aynho (Non-Afl)]

My Lords, alongside The EU referendum and EU reform report, the House will also be debating my committee’s report, The Process of Withdrawing from the European Union, and the report from the Science and Technology Committee on EU Membership and UK Science, to which the noble Earl, Lord Selborne, will speak. Our committees have a history of harmonious collaboration on European matters, and I had the privilege, a generation ago, of serving on a research council under the noble Earl’s chairmanship. I look forward to his contribution with anticipation. I record on behalf of the committee our thanks to its impeccable staff and to all our many correspondents and contributors.

I am delighted that we have the opportunity to debate these reports before 23 June—referendum day. The process that has led up to that momentous decision has, of course, been a continuing preoccupation of the EU Committee. At the end of the previous Parliament, we reported on the coalition Government’s balance of competences review, highlighting in particular the Government’s failure to provide an overarching summary of their findings; a summary that might have driven, or at least influenced, proposals for EU reform. Then, last July, we published a short report warning the incoming Government of the need to approach their negotiations inclusively, and in particular to have regard to the importance of parliamentary scrutiny. The problems we explored in these two reports were never fully tackled and have played into the end game on which we now report.

Before I delve further, I should emphasise, or re-emphasise, our committee’s settled view that it is not for us to take a view on whether the UK should remain in or leave the EU. That critical decision is for the British people next week. Our remit is to scrutinise Her Majesty’s Government and to interrogate the approach which—in distinction from that of the political campaigners on both sides of the campaign—they are adopting in presenting their official case for remaining in the EU.

That is the basis for our current report on EU reform in which we analyse the process whereby the Government decided on their four negotiating “baskets” of sovereignty, fairness for the eurozone’s ins and outs, migration and competitiveness. These negotiating objectives were not confirmed for several months following the publication of our report in July 2015. Perhaps it was only pressure from Europe that crystallised them in the form of a letter from the Prime Minister to President Tusk last November.

Chapters 2 and 3 of our report dissect the rather opaque process that led to the publication of this letter. It is history now, and I shall not dwell further on it. It was the so-called “new settlement for the United Kingdom”, agreed by the European Council last February, that in effect fired the starting gun for the referendum campaign. Chapter 4 of our report analyses in some detail this new settlement, in which the Government sought to achieve their reform objectives.

In broad terms, we found that some concrete progress had been made, reflecting perhaps a welcome degree of realism in the approach of all parties. The new settlement takes the form of an international law decision. Given the known difficulties of treaty change, and the explicit buy-in of all member states and the European institutions to this process, we accept this as a realistic and viable approach to delivering commitments to reform.

If the UK votes to remain, we will need to pursue further our detailed scrutiny of these provisions; if we opt to leave, the deal automatically falls away. The assurances received on the UK opt-out from the commitment in the treaty to ever closer union, whatever their intrinsic merits, appear to signal conclusively an end to any ratchet process leading towards greater centralisation. We concurred with the Foreign Secretary, who told us in evidence that we have “reached the high-water mark” and the intense involvement in our national life which,

“irritates so many people in this country, is a thing of the past”.

Under the same sovereignty heading, the new settlement also sets out an enhanced role for national parliaments by means of a so-called red card—that is, power for a 55% majority of national parliaments, acting collectively, to stop an unwelcome proposal. We have no objection in principle to this, but I remind noble Lords that my committee has also consistently argued for what I have called a “forward gear”, involving positive upstream engagement with European policymaking, whether it is better regulation, simplification of laws or more widely. Hence, in conjunction with a number of other national parliament chambers, we as a committee pioneered last year the first European green card on food waste.

On the crucial but legally and technically complex issue of fairness between eurozone and non-euro states, we see the terms of the new settlement as providing welcome clarity and assurance that the interests of both groups will be safeguarded. We are also not alone among member states in wanting a more competitive Europe, and we have the European Commission as allies in this. We welcome the agreement to press for better regulation, including an annual progress report, and the intention to reduce administrative burdens, particularly on SMEs, as well as to press forward an active and ambitious trade policy. We have of course heard similar aspirations in the past and we shall have to hold the European institutions to account for them.

The final main “basket” of the negotiations relates to migration, or free movement. Self-evidently, this is the one with the greatest political salience. The analysis in the report speaks for itself, and, in light of more recent controversy, I do not intend to rehearse it now.

I turn to our short report on the process of withdrawing from the EU. This was based primarily on evidence provided by two experienced and expert lawyers, Sir David Edward and Derek Wyatt QC, supplemented by our excellent internal committee legal advisers. The report is largely self-explanatory, but if I may summarise, our key finding is that Article 50 of the Lisbon treaty provides the only means of withdrawal consistent with EU and international law. Withdrawal is final only once a withdrawal agreement enters into force, so a member state that had given a notification under Article 50 would be legally empowered to reverse that decision before this stage.

[Lord Lawson of Blaby (Con)]

I was slightly puzzled when the noble Lord said that Article 50 was the only means. Is he saying that the 1975 referendum, when the Lisbon treaty and Article 50 did not exist, was a complete fraud because we could not have left anyway?

[Lord Boswell of Aynho]

My Lords, provisions in the Vienna convention on treaties would enable a member state to withdraw from any international obligation by consent of the parties involved. As the noble Lord rightly said, the Lisbon treaty followed long after the 1975 referendum, in which we probably both participated. In order to be consistent with European and international law—which, of course, are obligations for Ministers as well—the treaty confines any action to the terms of Article 50, under which it would have to be carried out. I hope that that is helpful to the House.

Notwithstanding this legal argument, which I have some diffidence in opining, it has not escaped us that there would of course be political consequences on both sides of the argument in doing so. On the practicalities, the process of negotiating withdrawal would be complex, involving, among others, vital issues of trade policy and complex issues of rights acquired by individuals, as well as the need to review our existing body of law. It can be done, but it will take time—probably several years—to complete.

[Lord Spicer (Con)]

On Article 50, surely force majeure will come into play. Is it realistic to suggest that a nation state could be forbidden from leaving the European Union if it wished to do so?

[Lord Boswell of Aynho]

My Lords, the question is not whether a nation state would be inhibited from doing so, because the Lisbon treaty specifically empowers and provides a process for it. The question for the noble Lord and this House as a House of law and proper procedure is how we may meet our international obligations if the nation decides to initiate that process—no more, no less.

I am conscious—although it is beginning to seem that the note I had marked may be a little obsolete in the circumstances—that I have yet to address the more overtly “political” issues which loom large in all our minds as we approach the referendum. Reverting to our report on EU reform, perhaps the key question is: what happened to the new settlement? A little like the dog that did not bark in the night, its almost complete absence from the current debate on EU membership is telling. This was the agreement on which, we were told, the Government’s support for EU membership depended, yet it has had almost no influence at all on the referendum campaign.

This takes us back to our starting point: the Government’s failure initially to provide an overarching assessment of the findings of the balance of competences review; the failure to offer a considered, evidence-based diagnosis of what, if anything, is wrong with the EU; and what the real costs and benefits are to the UK, so that we can understand what needs to be fixed for the UK to remain a member. If the British people need anything over the next eight days, it is real, objective evidence, on the basis of which they can make an informed decision.

This brings me to my final point. As a committee, we have tried our best to fulfil our duty in tackling complex technical issues around the process leading to the referendum, and we have done that in our traditionally non-partisan style. Yet we also stressed that the Government’s case for EU membership needed to be an inclusive one, crossing party-political lines and speaking to all the peoples of the United Kingdom. We suggested that it needed to be based on a positive vision of the UK’s role within a reformed EU, and we warned that a campaign based on narrow national economic self-interest, alongside mere fear of the alternatives to membership, might be insufficient. Noble Lords may wish to reflect on whether our plea has been listened to, or whether our warning has become a reality.

The decision in eight days’ time will be as much of the heart as of the head. If the Government are to persuade the people to endorse their recommendation to remain in the EU, they need to focus on facts, but also appeal to the feelings and ideals of the voting public. It is not too late, but in that somewhat sober context, I beg to move.

--- Later in debate ---

[Lord Boswell of Aynho]

My Lords, the House will be grateful to the noble Lord, Lord Faulks, for his generous response to our three committee reports collectively, and for the tone in which he explained the Government’s position. I was rather moved by his final remarks, although that will not shake our formal position of independence on this issue.

As the noble Lord said, this has been a very remarkable, extended and unusually balanced debate. The epithets I will attach to it are “rich” and “reflective”, because it has gone through a very wide area. As I indicated at the beginning, I have welcomed the contribution on science, which has added to the debate. We have ranged widely and properly through subjects such as, from the noble Lord, Lord Hastings, the position of the poorest countries of this world in relation to this, which we so often forget, and, from the noble Lord, Lord Low, disabled people. This matter touches us all.

Inevitably, I will concentrate more on the political, diplomatic and legal matters. There will not be time to comment on everyone’s contribution. If I may single out without invidiousness the noble Lord, Lord Howell, who often takes the House to another stage of perception towards the future, he chided us a little bit—and rightly so—for perhaps not giving a full flavour of that vision, although we said that the Government needed to do that. We certainly do have a contribution to make in this House and through our committees in taking the argument further, whether we stay in or move out. One of our sub-committees has very recently reported on digital platforms—one of the subjects that the noble Lord specifically mentioned. As it happens, its last report was on the control of pilotless drones, so we are keeping up with this. In fact, we took some of that sub-committee’s observations to an international meeting only this week, where we shared them with colleagues. So we will not mess about with that; we will do our wider duties as well as the more particularly political ones.

I will turn to two areas that I think have not had quite enough attention in this debate but which reflect, in a sense, the remit of our committee. Of course, we report to this House, but one area which is certainly not our direct responsibility but which we should bear in mind—some noble Lords referred to it—is the question of our colleagues, the other 27 members of the European Union. Occasionally, some of the public comment here suggests that we operate on our own without reference to them, but I will pick up, on this occasion entirely with approval, the remarks of the noble Lord, Lord Pearson of Rannoch, who said that we are not their enemies. Of course we are not their enemies. Indeed, we do not want to make them our enemies; we want to have a good relationship.

If I may refer again to the international conference I have just attended on behalf of the House with the noble Baronesses, Lady Falkner and Lady Armstrong, who both contributed so thoughtfully to this debate, we had all the other 27 member states represented, in one form or another. Though they did not make large, pro-forma pronouncements, the number of them who came up to us in the margins and said, “What is going on? We are concerned about this. We are concerned for ourselves as well as for you”, was quite remarkable.

The second constituency I am conscious of—and while I do not expect people to read every word of our report I hope that some of the messages will distil—is the wider constituency of the electorate who have to make this decision next week. We have a lot of people who yearn for clarity, objectivity and a degree of sensible, sober presentation, and, as a number of noble Lords have said, they do not feel that they have entirely had it yet. I would like, in concluding this debate, to draw out two areas.

The first is the complexity side of all this, perhaps best expressed in our short report on withdrawal. In looking at that, I would say to people who have not read it, “Just read the appended Article 50”. If that is too long—and the number is just a coincidence—just read Sir David Edward’s evidence at paragraphs 49 and 50, the latter of which has been referred to by a number of noble Lords, including the Minister. This is a very complicated process. It involves us all. We do not always remember that it involves us all. I have declared, although I did not mention it this afternoon, that I am in receipt of payments under the common agricultural policy. In that case, there does not appear to be a conflict, because in fact the leave campaign has undertaken to restore those payments. I will leave that one for contemplation.

Let me be a little more down to earth. I do not often bring out a visual aid, but here is a European health insurance card. I recently renewed this. It was done with huge efficiency online and came back virtually by return from the Department of Health. It tells me that I am covered until 18 April 2021. Well, I do not know whether I am or not. I do not know whether I would be told if I was not, or whether the UK Government would pay for me to be even if it were not part of a European scheme. I just mention that because it is a small, hands-on example of the complexity of this.

I can understand, in a sense, that that is adding to people’s difficulty in making their decision. We have had some indications of passion and vision from a number of noble Lords, including the Minister. There comes a time when you move from the tabloid headline or the saloon-bar comment, or the fact that you wrote to TripAdvisor after you had had a bad night. That is one area of how we live our lives and we do it perhaps too often, but you then move to the other decision, where you think, you reflect, you count twice and then you decide at the ballot box. That is the moment when it really matters. It is not the duty of this House to tell people how to do it, but it is our duty to tell them that we will help them to think seriously about it. It is a serious decision that we want them to take and we will then respect it. I beg to move.

Motion agreed.