European Union Bill

Lord Hannay of Chiswick Excerpts

Wednesday 25th May 2011 Lords Chamber

[Lord Pearson of Rannoch]

My Lords, I suppose that these amendments, particularly Amendment 63, are the most brazen attempt yet by Europhile Lords to deny the British people a say on any aspect of our membership of the European Union. We have heard a good deal in our debates from noble and Europhile Lords about the Bill being an attempt to bind successive Parliaments or Governments. Of course, it should be no such thing. An incoming Government could simply repeal the whole thing if they dared to risk the anger of the British people. With the way in which the EU has developed and is developing, that looks rather unlikely. I do not suppose that they would even dare to put such a repeal in their manifesto, although manifestos do not seem to matter much to our new political class, as in the formation of a coalition Government for whom no one voted.

Talking of the way in which the EU is developing, is it not really quite remarkable that we have debated this Bill for so many hours without even discussing the euro? I suppose that could be because the Government, Europhile Lords and the political class in general have just about got round to understanding that the euro was designed for disaster—a disaster of unemployment and austerity measures being visited on the people of Ireland, Greece, Portugal and Spain—and soon, who knows, Italy? But, of course, the political class cannot bring itself to face up to this obvious fact: the euro itself is merely the result of the whole project of European integration, which is equally misguided, as time will tell.

This determination to avoid these inconvenient truths has perhaps been best demonstrated by the BBC “Today” programme’s recent coverage of the civil unrest in Spain. It steadfastly attributes it to the Government’s austerity measures, but firmly refuses to discuss why these measures have come about, which are thanks to Spain’s membership of the euro, with its single unsuitable interest and exchange rates, which created the boom from which the people of Spain are now suffering the bust. Where does the euro come from? Why of course, it comes from the equally misguided project of European integration for which it was supposed to be the cement. It is the same for Greece, Ireland and Portugal—all slightly different cases, but all of them in their present predicaments entirely thanks to their membership of the euro and the European Union.

Earlier in our proceedings, I asked the noble Lord, Lord Howell, to respond to these facts.

[Lord Hannay of Chiswick]

Does the noble Lord not recognise that there is no Motion on the Order Paper in this Committee stage contesting the fact that if this country wished to join the euro there would have to be a referendum? We are time-limited in completing this debate, so could he address the measures before us and not the ones he wishes to speak about?

[Lord Pearson of Rannoch]

The noble Lord may find my remarks inconvenient, perhaps because they are entirely on target. I am explaining why the British people do not want these amendments and a large part of that is because of the damage that the euro has done, and which they can see it is doing. Could I also ask the noble Lord, Lord Howell, to respond to the delicate little point that the big idea behind the whole project of European integration is also proving to be misguided? I asked him that earlier.

This is essential to the amendment, as I hope even the noble Lord, Lord Hannay, will agree. That big idea, as I never tire of reminding your Lordships, was that the nation states—the democracies of Europe—were responsible for two world wars and the long history of bloodshed. They therefore had to be emasculated and diluted into a new form of supranational government run by bureaucrats. The whole project of European integration, with its attendant euro, has at its heart the destruction of national democracy and its replacement with the anti-democratic structure that is the EU. That is why the unelected Commission still has the monopoly of proposing all EU legislation in secret, which is now the majority of our national law. That law is then negotiated by bureaucrats from the nation states in COREPER and then passed, still largely in secret in the Council of Ministers from the nation states, with your Lordships’ House and the House of Commons having virtually no influence—in fact, no influence.

When you tell them this in Washington, they simply cannot believe it. I wonder how many of the good people travelling here today with President Obama are aware of it. I imagine that he may pay some tribute today to the European Union, and I wonder whether he will know what he is talking about if he does.

--- Later in debate ---

[Lord Hannay of Chiswick]

The noble Lord has perhaps misunderstood the effect of the sunset clause. If it operated and nothing replaced it—although in one amendment before us there is a system that would replace it—we would revert to the Bill in which we ratified Lisbon. This required a resolution of both Houses. It is a case of returning power not to the Government but to Parliament.

[Lord Hamilton of Epsom]

Of course—but the noble Lord will know well that the late Lord Hailsham described government as an elective dictatorship. I view what will happen as being very much more in the hands of the Government than of Parliament. I take the point that we are talking about Parliament rather than the Government. However, it is an entirely different matter when you give powers to people in the form of a referendum, because if you then take them back you are taking them from the people. That is different from all the other sunset clauses that we have in our legislation.

--- Later in debate ---

[Baroness Falkner of Margravine]

My Lords, it was on this day last year, and with some trepidation, that I stood as the first Liberal on government Benches in 96 years to support the Queen’s Speech. This party knew, as did the Conservatives, that Europe could create a huge rift between us. It is in the true spirit of what a coalition is meant to be, in European terms, that we have managed in this Bill to come together in pursuit of its fundamental objective of rebuilding trust between the British people and those who govern them.

Amendments 61 and 63 aim to do more or less the same thing: to suggest that the Bill is a complete waste of time and should therefore expire as soon as this coalition Government cease to exist. I have enormous respect for the noble Lords whose names are listed as supporting these amendments. They undoubtedly believe that this Bill is unnecessary and will do little to address the disconnect between the EU’s institutions and Britain’s. They are entitled to their view, but I regret that there has been no attempt on their part during the passage of the Bill in Committee to propose an alternative method of restoring trust.

Noble Lords on the opposition Benches have just been the custodians of power for 13 years. During their time in office, there were broken promises in consulting the people and precious little support for engaging the public in the European debate. Now, when confronted with the central aim of the Bill—to promise the British people that they will have a say in some matters to do with giving over more power to the EU, or at least to assure them that Ministers will have to justify their decisions—the response is to suggest that the Bill is an artificial construct intended simply to appease anti-Europeanism; and that it should therefore be dispensed with at the first opportunity, namely the Dissolution of this Parliament. This goes against the spirit of the Bill and we will resist that from these Benches.

I turn now to the principle of sunset clauses, somewhat anticipating what the Minister might say in response to the other two amendments.

[Lord Hannay of Chiswick]

I am sorry to interrupt the noble Baroness and am most grateful to her for giving way. However, it is unwise to caricature other people’s arguments, particularly when one does so inaccurately. I wish she would recognise—I ask her to do so—that many of the amendments that have been moved, by me and others, provide for the strengthening of parliamentary control over any changes in the European arrangements. It is a strengthening over what was provided by the ratification of the Lisbon treaty, for which the noble Baroness voted. We would get on a bit better, frankly, if we did not suggest that there had been no suggestions from those who are moving amendments to strengthen controls. There have been.

[Baroness Falkner of Margravine]

The noble Lord, Lord Hannay, does not particularly care for other people putting words into his mouth. I suggest that he apply the same principle to others. I was not at all proposing that those controls are not being suggested. What I was talking about was a disconnect between the British people and their institutions, whether it is in their relationship to the United Kingdom Parliament or the European institutions. The tone of the debate makes it rather difficult to take what the noble Lord says with the seriousness with which it is intended.

This is the only amendment to the Bill that I have tabled, and I should therefore be most grateful if I could continue to address the principles behind my amendment. Somewhat in anticipation of what the Minister might say in response to the other two amendments, let me speak to the amendment in my own name and in that of my noble friend Lady Brinton, Amendment 64.

Sunset clauses in legislation are increasingly becoming part of the framework of our constitutional arrangements. We have seen them in a spate of Bills over the past decade or so. It was only earlier today that a sunset clause was reprieved and put on a permanent footing in the Debt Relief (Developing Countries) Act 2010. That also happened to the Anti-terrorism, Crime and Security Act 2001. This House voted again and again to insert such a provision into the Prevention of Terrorism Act 2005. A host of other Acts attracted such clauses, including the Finance Act 2001, the Income Tax Act 2007 and the Climate Change and Sustainable Energy Act 2006. The list goes on and on. Why are sunset clauses there? Among the reasons is concern about the unintended consequences of the relevant legislation. There was concern that new structures and processes were being installed without clarity on how exactly they might work in certain circumstances that could not be foreseen when the legislation was passed. In other words, they cannot be foreseen here and now. On that basis, there is no Bill, once enacted, more suitable for post-hoc review and the possibility of repeal than this one. Its aims are clear and I have reiterated our support for them. What is unclear is the effect of the measures on decision-making in the future.

Several noble Lords have mentioned the need that might arise when decisions are taken in urgent situations. Others have spoken of the need for flexibility. Yet others have spoken of the level of complexity in EU legislation. All sides of the House share a central concern—that UK interests should not be put at risk due to its adoption of the complicated procedures in place in the Bill. Therefore, a sunset clause, if accompanied by a straightforward sunrise clause, would seem to be ideally suited here.

I turn briefly to Amendment 62 in the name of the noble Lord, Lord Kerr of Kinlochard. There is little that one would fault with it, other than the proposal that the Bill should sunset at the end of this Parliament. Several noble Lords have suggested that there is no point in the Bill because the coalition has already declared—not today but at other times during the passage of the Bill—that there will be no further transfers of powers or competences. In other words, we do not need this legislation because there has been a declaratory statement of what the purpose of the Bill will be for the rest of this Parliament. That misses the point that we are intending to legislate for the future.

I turn to the issue of whether a Parliament can bind a future Parliament in this manner. I agree with the European Scrutiny Committee in the other place which said that Parliaments by necessity bind the other, as all legislation is directed at the future, rather than the past. I quote from the report:

“Laws passed by one Parliament do not contain a sunset clause at the Dissolution”.

All can be repealed by a future Parliament, if it so chooses and if that Executive can muster support. However, I recognise the political difficulties that repeal can attract, hence the simplicity of Amendment 64. First, the fact that the sunset would not take place until three years into the next Parliament would mean that a new Government would have sufficient time to see how the provisions played out in reality. Their Ministers would be able to see for themselves that their negotiating positions were not as inflexible as the Bill might appear to suggest, and that that they did not go to Brussels with one hand tied behind their back. In other words the provisions should actually work in practice. We would have sufficient time to assess whether we needed regular referendums, as the four remaining years of this Parliament plus three in the next would allow for a reasonable time span over which to make a judgment.

Finally, my amendment would also allow for an evaluation of how the judicial review provisions work. The process of judicial review can be, as we know, fairly drawn out, and we will have been able to make an assessment of whether the dire predictions of the frequency of judicial review will really bear out.

My Amendment 64 would put in place the possibility of evaluating how things will play out. This evaluation period would be sufficiently long to test the workings of the Act. The process would be straightforward: the Act will lapse if the Government think that it is not in the national interest to retain it, but if the Government of the day wish to retain it, again, all that will be needed will be an order resurrecting it—a sunrise. It will not absorb political capital or indeed take up precious legislative time. This clause is intended to be a pragmatic, evidence-based solution to ameliorate uncertainty. While I may be probing today as to the Minister’s objections, I suggest that in future years he may look back at this amendment, if accepted at Report, with some relief if he is caught in an unwelcome bind that was not evident on a glorious, sunny day in May.

Lord Grenfell: I support Amendments 61 to 63. I am sorry that the noble and learned Lord, Lord Howe, feels that he must now dissociate himself from Amendment 62, because the olive branch on which the amendment perches is very appropriate and could lead us out of a difficult situation.

I think that Schedule 1 is an abomination, and I always have done, and wish that it was not in the Bill. To pretend that this could possibly bring the people of this country closer to the EU and vice versa is a total myth, and I am surprised that there are those who still believe that this is the way to go in order to cement the relationship between the people and the European Union. The noble Lord, Lord Kerr, is right to say that the Bill is not exactly a subject of discussion in the bars on the Champs-Élysées or even in the Quartier Latin—far from it. But it is beginning to have a little bit of resonance in the two Houses of the French Parliament, particularly in their European Union committees, where they have taken note of it. A member of one of those committees asked me the other day whether this was actually true and whether it could happen. When I said it could, he said, if I may slip for a moment into the language of Simon de Montfort in this Parliament,

“Dans ce cas-là, nous entamerions notre proper chemin”—

which means,

“In that case, we’ll go our own way”.

And indeed they will.

I honestly believe that to think that the rest of Europe will go along with this is simply not true. It will test their patience to the limit and will do us no good at all. This Bill is not a good Bill. It is full of things that should not be there. To requote something I said late one night in Committee, Antoine de Saint-Exupéry said that perfection is achieved not when everything has been said that should be said but when there is nothing left to take away. This Bill suffers from the fact that the Government do not see that there is a great advantage in taking quite a lot of this away, but I am afraid that we may have to live with a different situation.

This is not a good Bill. I support the three amendments and hope that at least we can make it better by passing them.

[Baroness Quin]

I will speak very briefly in support of the idea of a sunset clause, which is probably the best way of ensuring that, assuming that the Bill becomes law—although I share the view of the noble and learned Lord, Lord Howe, on that—there is at least an opportunity for a fundamental rethink about it. My noble friend Lord Davies, whose fine speech I will not repeat, made the very important practical point about the operation of the Bill, particularly under the almost nightmare scenario of having a complicated referendum with several questions on entirely different aspects of treaty change. His practical objections to the working of the Bill really do need to be examined and thought through in much greater detail than seems to have happened so far.

I also have a more fundamental objection. I get very concerned about the idea of holding more and more referendums without thinking through what their role is to be in our parliamentary democracy. On the whole, I prefer a representative democracy to a plebiscitary democracy. This Bill, unfortunately, takes quite a few big steps towards a plebiscitary democracy and we need to think about that. It is very seductive to talk about giving power to the people. However—and I know I am in a minority in this place in espousing this view, as someone who believes in an elected second Chamber—there are ways of giving power and a vote to the people other than by referendum. I do not want us to be seduced into thinking that the only way in which you can give power and influence to the electorate in this country is via the continual use of referendums. I do not think that that is true for a moment, and, again, it is something that we should think about.

The Bill represents fundamental constitutional change. Along with a number of other measures that the coalition Government are introducing, we are making considerable changes to our constitution—in some ways, almost more so than the previous Government, of whom I was a supporter and who were often criticised, particularly by the Conservative Party, for the extent of their constitutional changes. However, we are doing so in a way that I think is fundamentally unsatisfactory in a Bill such as this. For that reason, anything that causes us to rethink this legislation is, in my view, to be greatly welcomed.

[Lord Hannay of Chiswick]

My Lords, I shall speak briefly in support of these amendments and I want to make two points that have arisen in other contributions. The first is the question of one Parliament binding another. Some perfectly valid points have been made by those who say that much of the legislation that we pass binds a succession of Parliaments until they repeal it. However, what is not noticed is that the Government stepped into the quagmire by stating categorically that this Bill, if it becomes law, has no application during this Parliament, because they are not going to agree to any of the things that would trigger its application.

That, I think, puts it in a completely different category and explains why a sunset clause has become particularly apt. I argue that it is a constitutional aberration to sit around trying to pass legislation which has no application in the timetable of this Parliament and which is designed purely to be applied in subsequent Parliaments. That is an oddity which I think justifies the sunset clause.

The other question is the one put very eloquently by the noble Baroness, Lady Quin. We need to clear our minds a bit on whether we want to go in a major way into a plebiscitary democracy. I know that the noble Lord, Lord Pearson of Rannoch, who is not in his place, thinks that turning this country into a simulacrum of Switzerland would be a jolly good thing. I do not happen to share his view on that. However, I think that noble Lords who say that the voice of the people must be heard should think a bit about this. Incidentally, most of them are sitting on the Benches of a party that has resisted referendums consistently over the past 40 years.

What is being suggested here is a major lurch into plebiscitary democracy in just one section of our institutional life while leaving the rest of it more or less as is. That is a peculiarly unbalanced way to approach this matter. By all means, let us have a debate about whether we should move away from representative parliamentary democracy to a plebiscitary democracy, although I have no doubt whatever what the outcome of that would be. There would be a massive majority against doing so. However, do not let us lurch in one section of our national life into potentially 50 or 60 referendums.

That is why I support a sunset clause, and I could support any of the variants in Amendments 61, 62 and 63. I hope that the Government will think really carefully about this because it is a serious matter.