European Union Bill

Lord Hannay of Chiswick Excerpts

Tuesday 22nd March 2011 Lords Chamber

[Lord Howell of Guildford]

These referendums are mandatory. The Bill requires that these transfers of competence away from this nation to the European Union in these very important and fundamental areas cannot take place without the approval of a referendum. I hope that that clarifies the matter.

[Lord Hannay of Chiswick]

Will the noble Lord reflect on his use of the words “competence” and “power”? He seems to be talking about cases where there is already a competence and a power to the European Union but where the decisions have to be taken by unanimity, and that that might be changed to qualified majority. I readily understand that that is a significant change, but it is not the granting of a power or competence to the European Union; it is already there. I am sorry, but I think I am right in saying that he is misusing those words all the time, as he is with the word “veto”, which is not a word known to European legislation. One either takes decisions by unanimity, in which case all member states have to agree, or by qualified majority.

[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.

--- Later in debate ---

[Lord Pearson of Rannoch]

I think I said that the noble Baroness does not need to declare her pension as a former MEP. The difference is that pensions from the other place are not removable, whereas pensions for former EU Commissioners are removable. It is removable from former Commissioners but not from MEPs. That is what I thought I had said and that is why I went out of my way to apologise to the noble Baroness for putting her in the wrong category before.

[Lord Hannay of Chiswick]

My Lords, the noble Lord has for years been worrying at a very old bone, and it does him no credit that he returns to it. Could he perhaps tell us how many members of the Commission have had their pensions withdrawn for having expressed political opinions in a place like your Lordships’ House? He continually rests the whole of his case on the fact that they are at risk every time they speak in debates such as this if they do not take the line that, presumably, has been dictated to them in e-mails from Brussels. That, frankly, is completely absurd, and he is just wasting the time of your Lordships’ House.

[Lord Pearson of Rannoch]

My Lords, I do not think that I am the one who is wasting the time of your Lordships’ House. I suggest that the noble Lord reads the opinion of the noble and learned Lord, Lord Woolf, and of our Sub-Committee on Lords’ Interests, and any other noble Lords who are interested in the subject should do that. I think it lowers the tone and skews the quality of your Lordships’ debates if people who are exposed, however remotely, to losing a very substantial pension do not continue to fulfil the obligations they had when they were Commissioners. In that, I think the EU pension is unique. It is a great shame.

--- Later in debate ---

[Lord Pearson of Rannoch]

That point is often made. Of course, if we were not in the European Union, we would have to obey the EU rules for the exports that we sent to them, but not in our own internal market and not to the rest of the world. Most countries in the world export to the European Union without that problem. It is really not a real one.

[Lord Hannay of Chiswick]

The noble Lord is propagating nonsense, if I may say so. Norway and other countries are obliged under the European Economic Area treaties to apply the single market legislation to their own market. They do not apply them only to the goods that they export to the European Union. The noble Lord would do well to recognise that he would be bossed about by Brussels even if he had his referendum and got us out of the European Union, with all the other damage that that would do to us.

[Lord Pearson of Rannoch]

My Lords, the noble Lord is making the usual mistake of thinking that we would stay in the European Economic Area. Why would we? Why would we not have a relationship like Switzerland and like all the other countries in the world that export to the European Union and are not bossed around by the Brussels rules?

I am not suggesting that the British people are fully up to speed with the four points that I have just made—nor, indeed, is the noble Lord, Lord Hannay—but they are getting the point that the EU is ruinously expensive, that we cannot afford it, and that it has taken away their sovereignty, and their right to elect and dismiss those who make their laws. Most of our national laws are now made secretly in Brussels, where our Government have some 9 per cent of the votes, and our MPs, for whom the people vote, are irrelevant in that process. The people are also right when they fear that they can no longer afford EU membership, which is untouched by this Bill. I give your Lordships six points to prove that.