European Union Bill

Lord Goodhart Excerpts

Wednesday 13th July 2011 Lords Chamber

[Lord Howell of Guildford]

My Lords, I hope that I will be forgiven if I say that I have a faint feeling of having been here before—and forgiven also for not responding to every strongly held view and argument put forward in this debate that was put forward again and again in the past. The Government and I regard some of these arguments as deeply flawed and consider that they do not understand or come to grips with the realities of political life today, either here or in the rest of the European Union. I will also deal briefly, as is the custom, with the Motion—it is not the custom to make long second speeches on a Motion—and with the amendment moved by the noble Lord, Lord Liddle, which goes very much further than anything standing against the Government’s Motion that the amendments be resisted.

On the decisions involved in Clause 6, none is in the grey or insignificant category. They are all there for very strongly established reasons that are largely supported by many other countries. Many vetoes are maintained because the signatories to the Lisbon treaty did not want them to go into the QMV category. They are there because their use could only ever provide for a transfer of competence and power from the UK to the European Union—for reasons that we have explained from this Dispatch Box and that many of my noble friends have explained again and again—and so should be subject to the referendum requirement.

It is difficult to accept that any of the decisions in Clause 6 would not be significant in constitutional or economic terms. Those who say that it stretches their imagination to understand the significance of the measures listed in Clause 6, or Schedule 1, which springs from it, surprise me. Surely a decision on whether to give up our vetoes on, for instance, the multiannual financial framework, border controls or joining the single currency—I refer now to the amendment of the noble Lords, Lord Liddle and Lord Triesman, not to the main one that accepts them—would all fall, under Amendment 13B, into the bracket of something that had to be judged according to whether or not it was significant. This is a completely unnecessary process. Clearly they are of the most profound significance.

I know that the shadow Minister for Europe said on Monday that he considered other items in Clause 6 to be not so important. He exempted the important three—border controls, the European currency and one other—but dismissed the others as paperclips and minutiae. We do not accept that analysis. We firmly believe that the other issues are also of great significance and, when understood in terms of their impact on jobs, work and the processes by which our law system operates, certainly could be subjects of conversation in the pub in Burton-on-Trent, where the noble Lord, Lord Lea, has been listening to conversations.

On the European public prosecutor, I know that it is regarded by some of my noble friends, and by some noble Lords opposite, as not being of constitutional or economic significance. However, it is because it involves affording a supranational body the ability to prosecute citizens of this country within the scope of its own criminal justice system in respect of alleged crimes affecting the EU's financial interests. Someone must decide what that financial interest is and whether the crime has been committed. Is that a paperclip or minutiae issue?

What about the vetoes listed in Schedule 1? Why are they not significant when they all relate—that is why they are there—to the red lines adopted by successive Governments, fought for very hard by the previous Government and sustained by this Government, covering foreign affairs, security and defence policy, economic and tax policy, including issues of the EU's budget, which all of us admit is a red-hot issue, social security, employment policy, justice and home affairs policy, and citizenship and elections? Are these all minutiae, paperclip decisions and things that are never discussed in any pub? I have to ask where some of my noble friends, and some noble Lords, have been if they think that these matters are of no significance, because they include not only domestic issues, where after all Parliament can make and unmake laws, but transfers of power, sovereignty and competence that would almost certainly be irrevocable—in fact, they would be irrevocable.

The amendment before us would, for instance, allow the British Government to relinquish their veto over decisions relating to the multiannual financial framework without first getting the consent of the British people. That is a hugely important decision that Members in the other place were particularly concerned with, and rightly so. The Minister for Europe rightly pointed out that the forthcoming decision on that framework will in effect set budgetary decisions and ceilings for the next five to seven years of the EU's life and development. Are these minutiae, paperclip decisions or matters that people will not understand? I ask my noble friends and noble Lords who think that these matters are insignificant to think again. Their significance is obvious.

It is vital that these matters remain subject to unanimity and that whichever British Government are in office—this matter should be above party—continue to have the right of veto. Similar views are taken in almost every other country in the European Union. We all know what happens when one gets casual about the veto and lets it go. This was the case in the surrender of the veto on Article 122 of the TFEU, which opened the way to fearsome, huge and titanic new financial commitments to the funding of Europe in its present financial difficulties.

The amendment before us would reduce precisely the clarity that we all seek. It would also risk the possibility of judicial review on a decision by the Minister not to consider one of these clear-cut decisions to be significant. The so-called pragmatic flexibility that the noble Lord, Lord Liddle, keeps reminding us about and seeks could well be impeded by his own amendment. He would end up in a quagmire of pragmatic flexibility of his own making. It was too much of this pragmatic flexibility approach in the past that caused antagonism—the turn-off, if you like, of popular support for the European Union and for Ministers’ actions. The ministerial discretion that some of my noble friends and noble Lords call for has become the ministerial indiscretion and undermining of trust and support for the European Union that we are trying to correct.

[Lord Goodhart]

Would my noble friend accept that it is impossible for a court to make decisions on what is done in the Houses of Parliament? If the Minister declares, therefore, that he believes something to be—or not to be—a matter of importance, it is not a matter that could then go to the courts. It would be settled by the House itself.

[Lord Howell of Guildford]

Ministerial decisions are open to judicial review. That is not a matter that we discussed much in Committee or one that we would necessarily want to see operate very fully in this or any other area of ministerial decisions on any aspect of policy. However, judicial review is there and ministerial decisions can be challenged.

The House of Commons has twice approved the scope and operation of Clause 6 following a clear exposition from the shadow Europe minister and his views on party policy on Amendments 6 to 13.

I do not want to take further time meeting the marginalisation argument. Frankly, it is a chestnut, as there is absolutely no impact on Ministers’ discretion and flexibility merely because they have sanctions behind them. Most European member states’ Ministers have sanctions of various sorts lying behind them on the decisions that they reach.

The plebiscitary democracy issue, frankly, belongs to the pre-internet age, before the web and the internet system. We see all around the world the wider public’s insistence on having a say where major issues about the transfers of power and competence away from their sovereign control are involved. That is exactly what would happen here. The idea that there would be 56 different referenda coming along is pure fantasy and does not relate to the actual way in which these issues would arise. There would be no great frequency of referenda; this is not the pattern for the future. It will not be the result of this Bill and it certainly would not be the outcome of the way in which the European Union has operated, is operating, or is likely to operate in the future. It is not in the interests of the 27—maybe soon 28—members to proceed in that way.

I think that the noble Lord would be wise to accept the Motion and the view taken in the other place. He would be wise to reject the amendment and therefore I ask him to withdraw it and accept the Motion so ably moved by my noble friend.

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Moved by

[Lord Goodhart]

As an amendment to Motion D, at end insert "but do propose Amendment 15B in lieu"

15B: After Clause 21, insert the following new Clause—
“Suspension of section 6 and Schedule 1In Parliaments subsequent to the Parliament in which this Act is passed the Secretary of State may by order approved by a resolution of each House of Parliament provide that any provision of section 6 or Schedule 1 shall be suspended for the duration of that Parliament or for any lesser period.”

[Lord Goodhart]

My Lords, Amendment 15, which the other place rejected, provided a kind of sunset clause for the whole of Part 1 but gave power for future Parliaments to restore the Bill. Amendment 15B replaces Amendment 15 with more limited powers. In the first place Amendment 15B applies only to Clause 6 and Schedule 1 and not to the rest of Part 1. Secondly, the original Amendment 15 cancels the operation of Part 1 and Schedule 1 at the end of the duration of the present Parliament and leaves incoming Governments to revive those provisions of the Bill. Amendment 15B leaves Clause 6 and Schedule 1 in force unless and until a new Government wish to suspend them, and suspension cannot go beyond the duration of the Parliament which suspended them.

Thirdly, the original Amendment 15 is all or nothing. Part 1 and Schedule 1 either are entirely out of action or are entirely in force. Amendment 15B provides for the suspension of any one or more of provisions contained in Clause 6 or Schedule 1. Amendment 15B is therefore much more flexible than Amendment 15, and that is a very important difference. It is surely plain that some of the decisions that may lead to a referendum under the Bill will not be appropriate for such a referendum because of the limited importance for ordinary citizens of that particular decision or because of the uncontroversial nature of that decision. In such cases Amendment 15B allows the Government to proceed by order, which requires the support of both Houses but without a referendum.

We need flexibility. Without it we may waste money because a decision which is not controversial has nevertheless to go through the process of the referendum. Without flexibility we may lose the benefit of useful decisions because a referendum is of little concern to the majority of citizens who have no objection to it and therefore a small minority are able to defeat the Government. Without flexibility the Government may decide not to go ahead with a decision which is useful and non-controversial but not important enough to justify the cost and effort of a referendum.

Nothing in Amendment 15B would affect the referendum lock in the present Parliament, but future Parliaments should have some control over it. I recognise that the amendment would give the Government and Parliament power in theory to avoid referendums on matters where a referendum would have wide support—especially, for example, in the case of adopting the euro—but there is no likelihood whatever that any Government would refuse a referendum in cases of that kind. In any event, if your Lordships' House accepts the principle of Amendment 15B, I can see no objection to amending it so that it does not apply to those categories where there is likely to be a strong demand for a referendum.

This Government propose to rely on favourable referendums in specified circumstances. So be it, but we should not enforce the same restriction on future Parliaments—that is for each Parliament to decide. Does the Minister recognise that it is impossible for the Government to prevent a future Government exercising their power without a referendum to bring in legislation? If that is so, it makes the situation somewhat different, but it seems nevertheless desirable for Amendment 15B to be included, because it makes simpler provision for varying the Bill now being enacted.

It is desirable to take Amendment 15B on board. I hope that the Government will consider doing just that.

[Lord Willoughby de Broke]

My Lords, this is again a wrecking amendment, which is how the noble Lord, Lord Blackwell, described the previous amendment. It goes to the very heart of the Bill and would neuter it completely if it produced a sort of son of a sunset clause. People outside this Chamber and outside Parliament will simply not understand what the House of Lords is doing if it votes for it. The Bill is intended to give British people a voice and protect them from further laws and further integration produced by Europe. They will not understand if the House of Lords supports this amendment, which goes against the whole tenor of the Bill.

On the earlier amendment, the noble Lord, Lord Liddle, made some great play about the lack of trust in politicians and Parliament in general. Although he would not interpret his remarks that way, I take them to support the use of referendums, precisely because of the lack of trust in Parliament and government in general in this country. The noble Lord, Lord Grenfell, prayed in aid the people of Slovenia, who apparently trust their Parliament and say that they do not want referendums. But that simply is not the case in this country. The voters in this country do not have the same faith in their Government and Parliament as the people of Slovenia apparently do. If the amendment is carried, it will drag Parliament even further into the contempt that British people already have for it. It is extremely dangerous, and I hope that it will be voted down by this House.

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[Lord Goodhart]

My Lords, I point out to the noble Lord that Amendment 15B was not put to the Members of the House of Commons. It is a newly introduced amendment and what he is saying has very little bearing on this issue.

[Lord Empey]

I was referring to the remarks of the noble Lord, Lord Hannay, and commenting that of course very few people participated in the debate, so that point is valid. The noble and learned Lord is right to say that this particular amendment was not before the other place, but at the end of the day the purpose is the same. The noble Lord, Lord Radice, described it as a “soft sunset”. Well, whether you have a hard sunset or a soft sunset, it is still a sunset, and at the end of the day I just wonder, in view of our discussions in this House about our own future, whether it is wise for Members of this House to send anything back to the other place that contains the word “sunset”. It is probably not the best thing for us to do. There is no constitutional imperative to send this back to the other place. If we believed that there was, it would be the duty of this House to do so. I just do not see that in front of us.

On the continuous use of the word “flexibility”, we all like flexibility in government, but it is a euphemism for something else. It means that Ministers can go on to take decisions, and it is precisely that flexibility that has existed for the past 35 years that leads to the Bill being in front of your Lordships’ House tonight. It is unfortunate that we have to go through these procedures, but I see no alternative but to go ahead with the Bill, and I believe that the amendment as currently drafted, or in its original form, casts a dagger at the very heart of what the Bill stands for. I hope that noble Lords will reject this proposal.

--- Later in debate ---

Having given those assurances, I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Goodhart]

My Lords, let me start by making a small and not very serious comment. From time to time my noble friend Lord Lamont and others have referred to me as being learned. Unfortunately, I am not. If I was in the House of Commons, I would be, but in your Lordships' House I am not.

On more serious matters, I start by thanking my noble friends Lord Howell and Lord Wallace of Saltaire for their balanced and serious response to the debates that have taken place on this matter. So far as an incoming Government are concerned after the next general election, they will, whether or not Amendment 15B is present, have the power to repeal all or part of the EU Act, as it will then be, without a referendum. If Amendment 15B is adopted, the incoming Government can use that amendment as an alternative to repeal and replacement of the complete Act. Members of Parliament will be involved either way, either in supporting a new Bill or in approving the making of the order that will need to be passed under this Bill. This is not a big step.

The noble Lord, Lord Armstrong of Ilminster, made a very good point on this and explained very clearly the distinction. Amendment 15B just gives a simple way of dealing with an action that could be done without it. I see no reason why Amendment 15B should not be included in the Bill. While I seriously considered the question of whether we would pass this amendment without going to a vote, I think this falls short of that. It is therefore my intention to ask for the decision of your Lordships’ House.