European Union Bill

Lord Bowness Excerpts

Tuesday 22nd March 2011 Lords Chamber

[Lord Bowness]

My Lords, my noble friend Lord Howell of Guildford introduced this Bill in such a reasonable manner that I feel churlish in being somewhat less than enthusiastic in my welcome for it. In looking for something to which I could give a small cheer, I suppose that, if the Government want to make any of the changes envisaged in the Bill, Parliament will indeed have a greater engagement in European matters than before and, perhaps, a greater awareness. Having said that, just as many other noble Lords are unhappy about the Bill, I am not enthusiastic about its plethora of provisions about referenda.

Like the noble Baroness, Lady Quin, I did not believe in a referendum on the proposed constitution. When that ill fated proposal did not proceed and the Lisbon treaty came along in its place, it was entirely right that it was dealt with by Parliament as all other treaties have been in the past. I had hoped that the coalition was committed to enhancing the role of Parliament. It is strange to me that we are seeing a number of issues where it is apparently content to abdicate responsibility to the people not at a general election, when voters in a representative parliamentary democracy may take a view about the Government’s performance as a whole, but issue by issue when the motives for casting a vote one way or another may not be directly related to the matter in hand.

The Bill presents numerous possibilities for the holding of referenda if the Government of the day are minded to agree any of the matters proclaimed to be the subject of referenda in it. As other noble Lords have observed, it is strange that in every case the Government would in any event be able to veto the proposals in the Council. Thus, if a proposal reaches the stage of requiring a referendum after ministerial Statements and Acts of Parliament, those are matters on which the Government would want a positive answer. It is even stranger that the Government should want to be in the position of seeking a positive answer and risking a rejection. That would probably be because of unpopularity for reasons that had little or nothing to do with the referendum issue. If it was an important issue, perhaps defeat should have been contemplated as one of the circumstances under the Fixed-term Parliaments Bill when Dissolution ought to be sought.

My noble friend Lord Howell of Guildford referred to tackling the disconnect with the public. I echo what other Members have said this evening: to do that, it would be much better if this Government were prepared to do what recent Governments have, by and large, failed to do and to lead in matters relating to Europe. Why do people feel isolated and shut out? Perhaps they would feel that less if the lead was given in positive terms and not by references to the threats, red lines and double and triple locks.

I do not propose to delay the House with my thoughts on the sovereignty clause. At this time of the evening, I wish neither to take up the House’s time nor to destroy the somewhat unjustified reputation of my legal expertise given by the noble Lord, Lord Kerr of Kinlochard. Suffice it to say that I will adopt his arguments and observations on the sovereignty clause. I add merely that nothing in the clause removes our obligations under the treaties to give effect to EU legislation properly enacted under the treaties. If we fail to do so, we will be in breach of those treaties and, as long as we are parties thereto, we are bound by them. In some quarters, that principle seems to be overlooked, which culminates in the unfortunate criticism of judges both across the Channel in Luxembourg and Strasbourg and just across Parliament Square.

The clause has infuriated the Eurosceptics, whom nothing but the repeal of the European Communities Act 1972 will satisfy. Nevertheless, the Bill actively contemplates litigation that will follow the Minister’s decision about whether or not something is significant or transfers powers. I find this somewhat strange, given the apparent unwillingness of the coalition Government to concede the rights of the court to make interpretations of Acts of Parliament and treaties.

Future Governments are going to have to face the fact that, if they want any of the changes to be made the subject of referenda by the Bill, they will have to face the possibility of defeat. I say “future Governments” because, although the Bill could be repealed, as could the European Communities Act 1972, that would in fact be difficult to do. I am not a scientist, but one of the things that I remember being told is that some chemical reactions are irreversible; I suspect that, in terms of real politics, some Acts of Parliament are the same. For example, I do not think that anyone here, whatever their feelings might have been at the time, would suggest that the House of Lords Act 1999 could now be reversed. I agree with other Members that a Bill that seeks to confirm the sovereignty of Parliament but which goes some way towards binding its successors is contradictory.

As has been said, the passage of the Bill will send our partners in Europe a very strange message. Having frequently criticised the lengthy decision-making process in Europe and having said that we want to get away from sterile arguments about process, we are burdening ourselves with further complications and processes, the consequences of which we cannot know because we do not know the issues or circumstances when we may well want to implement changes to treaty provisions that are in the Bill.

I am concerned specifically about the provisions in the Bill regarding the possible setting up of the European prosecutor’s office, or extensions to the power of that office, and making both the subject of a referendum. We do not have a current proposal. We know that a previous proposal from the Commission concerned cross-border fraud, which remains a concern. Professor John Spencer of Cambridge University, one of the contributors to the original proposal, wrote in an article for Parliamentary Brief that what was suggested was,

“a uniform code of criminal offences of fraud against the EC budget … a uniform set of procedural rules applicable to their investigation, and … to enforce them, a European Public Prosecutor, authorised to bring proceedings in the criminal courts of any member state. In practical terms, this EPP would consist of a chief prosecutor based in Brussels, with deputies in each Member State, these being national prosecutors on secondment”.

It is, however, something that is portrayed as a threat to our justice system—nothing to do with combating fraud and instead something to do with the advancing of a federal state. These provisions seem to have more to do with satisfying that suspicion and hostility among certain elements of the press than to be a proportionate response by responsible Ministers to what one hopes would be responsible proposals. If the proposals were not responsible, presumably we would not vote for them in the European Council. That problem will be even more emphasised if we have already become involved in the European prosecutor’s office when we seek to make amendments.

The noble Lord, Lord Davies of Stamford, and others, including the noble Lord, Lord Kerr of Kinlochard, referred to Schedule 1 to the Bill. I am sorry that this, again, seems to highlight any steps that might be necessary in the fields of justice and home affairs, particularly justice. We just do not know and cannot tell how these matters will develop and whether in the future, in a global world—never mind a European world—we might want to see changes to how these things are processed. They may be better processed by a move to QMV; I do not know. While we do not know, we still have the veto. I find it difficult to understand why the coalition envisages a referendum in these areas, many of which have been referred to by other speakers. Do we not even concede that there may be a situation in which, far from being in the minority and being outvoted, we are part of a thwarted majority, unable to make the changes that we want?

Other Members have made it clear that, if we adopt these provisions, we run the risk of being pushed to the margins of influence in the European Union. I hope that I may be forgiven for suspecting that the Bill is more about our suspicions about Europe and less about the powers of Parliament and power to the people. I find it odd that these matters, which are the subject of relations with our neighbours, partners and allies in a voluntary union, will be the subject of ministerial Statements, Acts of Parliament and referendums, yet we are still able to engage in significant military operations without any of these things. If only the same leadership could be displayed to Parliament and people in matters of the European Union, how different our position in the European Union would be.