European Union Bill

Lord Clinton-Davis Excerpts

Tuesday 22nd March 2011 Lords Chamber

[Lord Howell of Guildford]

I do not think I agree with the noble Lord and I shall try to explain why in my remaining remarks. The word “competence” is of course very clearly defined in the treaties. There is no need to try to unravel that because it is defined in the treaties themselves. I agree that the word “power” is more difficult and I have been dealing with that. On removing the ability to veto, it may be that those precise words are not those to be found in the treaties but the action is clear enough. The removal of the ability of this country to veto certain proposals, so that they do not go to QMV, is a very clear adjustment or in some cases a surrender of power. I would not have thought that there was any difficulty about that.

Perhaps I may proceed with the explanation. I was saying that a prime example of a treaty change where we are not affected is the eurozone stability mechanism. The third is a treaty change which merely sought to codify EU practice in relation to the previous exercise of an existing competence.

In all cases, any future treaty change will need to be considered according to a set process, provided for by this legislation. In accordance with Clause 5, a Minister of the Crown would be required to make a statement within two months of a treaty change being agreed at EU level. That ministerial statement will have to give reasons why the treaty change does or does not require a referendum, by reference to the criteria set out in Clause 4 of the Bill. Like any ministerial decision, it will be open to any member of the public to challenge the Minister's judgment in that statement through judicial review. An Act of Parliament would then be required in all cases of future treaty change. So the possibility of judicial review by the courts does not displace the role of Parliament, but offers an additional safeguard for the people to hold the Executive to account.

The EU Bill would also give Parliament greater control over whether the Government can agree to use of the self-amending provisions of the Lisbon treaty, which those of us who were here a few years ago will recall very well. Those decisions, known as passerelles or ratchet clauses, allow for modifications to the EU treaties without recourse to formal treaty change. Because of the lack of a universal definition of what constitutes a passerelle, and because the Government's aim is to ensure that our proposals are as clear as possible to Parliament and the public, we have set out explicitly which treaty articles would require additional levels of control.

As I made clear earlier, Clause 6 provides that any proposal to use passerelles which would entail a transfer of power or competence from the UK to the EU would require a referendum as well as parliamentary approval by Act. There are two broad categories of provision in Clause 6. The first is the passerelles, which enable the European Council to decide to remove a veto in an area we consider to be significant and where we have made equivalent provision in Schedule 1: for example, social policy, the environment, common foreign and security policy and EU finance. Secondly, there are five specific decisions involving a transfer of power or competence, for example, a common European defence or participating in a European public prosecutor's office.

Clause 7 makes provision to require that any proposal to invoke one of the passerelles that would not involve the transfer of power or competence from the UK to the EU should nevertheless be subject to primary legislation. Clause 8 makes provision for specific parliamentary controls over any future use of the so-called broad enabling clause in Article 352 of the treaty, well known to many of us, on the functioning of the European Union.

Clause 9 makes specific provision for three passerelles in the field of justice and home affairs. The UK enjoys a protocol in respect of this field which allows the Government to decide on a case-by-case basis whether to opt in to a justice and home affairs measure. We have provided that a Motion would need to be approved in both Houses before the Government could opt in to one of those measures. Once the negotiation has then taken place on the proposal, if it is acceptable to the Government, an Act of Parliament would then be required before the Government could agree finally to the proposal in the Council. This provision does not apply to all justice and home affairs opt-ins, only to those passerelle clauses listed in the Bill which, if used, would allow EU powers to expand within the scope of the competence already conferred on the EU in the treaties.

There are some additional proposals which would require parliamentary approval by passing a Motion in both Houses rather than by an Act. These are provided by Clause 10. There are treaty articles which modify the composition or rules of existing institutions and, for the most part, are subject to QMV.

[Lord Clinton-Davis]

Which other members of the EU are prepared to go down the route which the noble Lord recommends?

[Lord Howell of Guildford]

Different member states have different patterns, including, as the noble Lord will know very well, elaborate referenda procedures, all of which take a very long time. The noble Lord will also be familiar with the German constitutional court and with other constitutional provisions in other member countries. This may be too general a comparison, but I think he will agree that most countries have somewhat more elaborate provisions and controls through constitutional courts and referenda requirements than we have had hitherto in this country.

As I was saying, there are some additional proposals which require parliamentary approval by passing a Motion in both Houses. These are provided by Clause 10. A vote in both Houses is therefore a practical solution to enable Parliament to have an appropriate level of control.

I hope not to detain your Lordships very much more, but there are one or two final matters which it is right to put before you.

--- Later in debate ---

[Lord Clinton-Davis]

My Lords, I am very happy to follow the noble and learned Lord because, when I was a Commissioner, he was enormously helpful when we met. The reason was that he cared about the European Community and still does.

Reference has been made to the debate in the House of Commons. Unfortunately, I do not think that the other place gave this Bill the consideration that it deserves. I do not share the view of the Bill taken by the noble Lord, Lord Howell of Guildford. I think that it is an abomination. It reflects a suspicion on the part of the Government about most of the things that the European Union does. In the other place, we had the usual suspects: John Redwood, Bill Cash and the somewhat ambiguous Foreign Secretary William Hague, aided and abetted by a minority of Labour Eurosceptics. They characterised the Bill as a “show Bill” and a “mouse of a Bill”, and the Foreign Secretary was depicted as being “all over the place”. Those criticisms are not entirely without foundation.

Of course, in the Commons, maybe a majority of the Conservative Party desire to come out of the European Union altogether or to render it insignificant. This Bill is not exactly a disappointment; it is exactly what many of us thought it would be: a smokescreen for those in government hoping to camouflage their true intent regarding the European Union.

In this House we have heard the noble Lord open the debate in a very calm and dignified way; it is exactly what we would expect. But does he really believe in this Bill? I remember when he unreservedly supported the situation of the EU and he wanted us to go in. Now he wants the reverse. Of course, I think Britain should adopt a decisive role in Europe, helping to mould it, particularly at this time when the EU could play a significant part in global affairs. In Europe, the Conservative Party has chosen to align itself with some extremely dubious people. That is not irrelevant; that shows how it really thinks. I am sure that the noble Lord, Lord Howell, cannot possibly approve of that alliance.

Where does the Liberal party stand in that regard? The Conservative Party in the European Parliament has left the European People's Party altogether, favouring instead what Chris Huhne once said were the “wackos and weirdos” in the Parliament. There the Conservative Party remains. Was that the pursuit of an “enlightened self-interest” which is writ large across its so-called European policy? That is what William Hague said. I do not believe it.

The Bill is short, but it has the capacity to be complicated, confusing and contradictory. Even from the Government's point of view, the ambition to initiate a referendum should be clear and decisive. Instead it is the very opposite. That has been reflected in our debate, particularly by my noble friend Lady Symons. That is no accident. It stems from the Government's attitude and confused stance towards the EU. The Government endeavour to satisfy both the antipathetic attitude of the majority of their supporters and the obvious requirement to be a worthwhile member of the EU. It is impossible to reconcile those objectives.

The Government are quite unable in the Bill to indicate when a referendum will be required. A mass of contradictions and difficulties have been raised in the debate today. We do not know whether Parliament or the courts will be able to determine that important issue. That is not an academic point; it goes to the very heart of what we ought to be debating today.

We should also be directing our concern to other vital issues, such as jobs, cross-border crime, trade and climate change—all essential matters in which the EU can play an increasingly salient role. In a world of blocs of power and influence, the EU must be heard on all those issues. The Government prefer it to be ineffective. The EU speaks for about 500 million people and therefore occupies a significant role in Europe and the world. We should be part of that process, but this puny Bill fails to promote that ambition.

Where, in all this, stand the Liberal Democrats? I was, frankly, very confused by the speech of the noble Baroness, for whom I normally have a lot of time. Are they in favour of the Bill? Are they against it? I emerged at the end of her speech without any guidance whatsoever. Are they prepared to fight for the EU, a cause about which they once cared enormously deeply; or do they now propose to take the ignoble course, alongside their Tory allies, of administering a potential death blow to the EU?

Before the general election, David Cameron described himself as the son of Thatcher. Well, Margaret Thatcher said that referendums sacrifice parliamentary sovereignty. They represent, she said, political expediency. So where stands the Liberal party as far as that is concerned? It is important that the Liberal Democrats should be able to respond to that criticism.

The Bill should not have been submitted to Parliament. It is fatally flawed. It is introduced primarily to placate the Tory anti-EU campaigners, but even this miserable Bill will not achieve its misconceived objectives.

--- Later in debate ---

[Lord Pearson of Rannoch]

My Lords, as this is our first major debate on EU matters since we finished with the Lisbon treaty three years ago, I must start by making an apology. At the end of those proceedings, on 18 June 2008, I regretted that, with one honourable exception in the shape of the noble Lord, Lord Williamson, noble Lords in receipt of an EU pension had not declared that interest. Many of us, including your Lordships’ Sub-Committee on Lords’ Interests, chaired by the noble and learned Lord, Lord Woolf, felt that such pensions should have been declared because they can be taken away if a holder breaches certain obligations arising from their time in office. This applies to former members and officials of the European Commission, but I made the mistake of saying that it also applies to former MEPs, which it does not. I therefore apologise now to those I named, particularly to the noble Baroness, Lady Quin, with whom I subsequently corresponded.

It is regrettable that the nomenklatura in your Lordships’ House has since confirmed that even former EU Commissioners do not need to declare their forfeitable pensions in our debates. They tend to be some of the most blinkered and enthusiastic advocates of our EU membership. It is not helpful to the public if they do not know where those noble Lords are coming from, so I hope that they will do so anyway, although I have to say that the noble Lord, Lord Clinton-Davis, has already failed the test. I would have thought, too, that former MEPs might also want to mention this experience because it suggests that they might have—

[Lord Clinton-Davis]

I do not have to declare it every time, but it is well known that former Commissioners get some sort of allowance by way of pension. It is not as vast a sum of money as the noble Lord suggests.

[Lord Pearson of Rannoch]

My Lords, the test of whether it should be declared is what a reasonable member of the public might think, and I am very glad that the noble Lord, Lord Clinton-Davis, has now passed the test.