European Union Bill

Lord Howell of Guildford Excerpts

Tuesday 3rd May 2011 Lords Chamber

[Lord Triesman]

My Lords, I was going to go through one or two. Certainly Serbia will serve the purpose. A number of countries in the region, for one reason or another, went to war. It was only when a different kind of future was offered to them that they began to think about the alternative future that their children might enjoy which did not involve shooting each other.

I understand, in debating the amendment, that the issues that I have raised are not supported everywhere or by everyone. I take the point of the noble Lord, Lord Stoddart: I regard the movement of labour in a free market as broadly beneficial, but I know that not everybody thinks so. Many people have expressed anxieties about it. This has been one issue that has come out of part of the accession. I believe that, broadly speaking, it has been economically advantageous to Europe rather than the contrary. However, I accept that many people who expressed anxieties were dismissed in a trivial way or saw their anxieties given grudging attention. Probably that did not serve the argument well.

Some people may have felt that changes of that kind were sufficiently profound that they wanted a say in the decision through a referendum. More than that, I suspect that they felt the need for some sort of shout about the overall size of the EU. For all that, were they to contrast the prospect of having a referendum on those questions with the ideas in the Bill about having a referendum on many minute, technocratic and in many instances unintelligible provisions, probably they would think that some of the issues raised by the noble Lord, Lord Stoddart, were more important than others. It would be foolish of us not to recognise that.

I suspect that some of the same arguments could happen with the Turkish accession. Let me be clear that we—certainly I do—totally support it. I welcome the dynamism that it represents. I also have no hankering for a Europe that is built around a single religious tradition—a view which has been expressed by many of the Eurosceptics and, indeed, in some European capitals. It would be a huge gain to see Turkey as a full member of Europe. It is absolutely right, as the noble Lord, Lord Tomlinson, said, that it has always played a fundamental role in the Council of Europe. This would be a huge gain for Europe in a much more profound sense—a Europe that is welcoming and able not only to cope with, which is probably too derisory a way to put it, but to embrace a major secular but also Islamic nation with a capability of bridging the interests of Europe, the Middle East and the Caucasus and bringing a great deal to stabilising the discussion right around the southern and eastern flank of Europe.

Whatever the merits that I might express about it, I know that those merits have been accepted by all recent United Kingdom Governments. However, there remain people—it has been something of a cause in France and Poland, for example—who believe that Turkish accession would have a major impact on the style and culture of the European Union. I think that the noble Lord, Lord Stoddart, described it as the ethos of the European Union. I look forward to these evolutionary changes regardless of whether others have expressed doubts. However, among those who have expressed doubts, some will probably feel that there will be an impact on them—a greater impact than some of the things that will be subject to referenda under the Bill’s provisions—and that they are not being asked their opinion.

The Minister will probably want to explain to the House the difference in approach and the apparent irrationality of the circumstances in which people will be asked for their view as between the different kinds of categories of issues at stake. The amendment draws the wrong conclusion. However, it cannot be said that the issue that it raises is inconsequential. Nevertheless, as I said at the beginning, we are opposed in principle, and we are. It would be better to remove the requirements for so many of these trigger clauses for referenda without providing any compelling definitions of issues of major constitutional importance and without an independent means of confirming the compelling nature of the decision.

It would be very helpful if the Minister could also comment on the point made by the noble Lord, Lord Ahmad, about what would happen were there to be a number of countries seeking accession at the same time. I will not invite him, however, to develop a new theory of AV which might allow for multiple voting—an outcome which probably everybody would fail to understand.

I can also see one other great risk in the kind of referenda that this amendment calls for, and that is in the area of producing campaigns which could very well be xenophobic and draw out the worst in relations between those seeking entry to the European Union and the domestic community of the United Kingdom, not least because many of those communities already in the United Kingdom are dynamic and vigorous parts of the society of the United Kingdom. The tensions that could be produced by that kind of approach would be quite unacceptable.

I also believe that accession does not transfer powers from the United Kingdom and that the House would do itself a considerable favour by recognising the beneficial characteristics of the growth that we have seen, a benefit which will unquestionably continue. As we look across the whole of the achievement of a peaceful European Union, I suspect that that will be seen historically to be one of the better departing points in our history.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, I begin by welcoming the noble Lord, Lord Triesman, to the forefront of the Opposition's concerns about this Bill. I think that he and I exchanged views from the Dispatch Box during the passage of the Lisbon treaty. We covered a great deal of ground then, and I think that we learnt a great deal from that process. Indeed, the British people learnt a great deal from the Lisbon treaty process, as did the whole of Europe. I look forward to lively debates with him in the future.

I have to say in parenthesis that should this Bill become law, the future will not be at all as the noble Lord describes it. The picture of a dribble of referenda on small issues completely misunderstands the way in which the European process works now or will work in the future, whether this Bill is on our statute book or not. I have obviously explained that insufficiently because the message has not got over, but as we continue our debates I hope to be able to make clear that the pattern will not be dissimilar to the pattern of the big treaty packages in the past, the difference being that if they contain matters that might look small but could be highly significant for this nation because they involve a transfer of competence or powers beyond the level of insignificance, that certainly requires consulting the British people. That is a very widespread view which this Government believe is important to satisfy in order to build a better consensus for the European Union than we have today from the British public.

However, that is for other debates: debates that we have already had and debates in the future. On this issue, we have had a very elegant exchange on the two sides of the argument. It is a debate in which the Government’s position is quite clear, as I shall make plain in a few moments. I find that when your Lordships tackle this sort of issue we put up a superb performance and all sorts of aspects are developed that do not necessarily emerge in the pattern of debates in the other place.

The amendments would alter Clause 4 to create an automatic requirement for a referendum in the UK to approve the accession of a new member state to the European Union. As your Lordships know, the UK has never required a referendum on accession treaties in the past, and this Government have been clear that there should be no referendum requirement merely for the accession of any new member state. That was the position also taken by the previous Government, of which the noble Lord, Lord Triesman, was a member. Why is that so? The simple point is this: the accession of a new member state alone does not constitute a transfer of competence or power from the UK to the EU. The transfer of powers or competence to the EU would be from the member state joining the European Union, not from the UK. Of course, there are some effects, possibly including a change in bilateral relations if a country becomes a member of the European Union. No one disputes that, but we are not really talking about effects or impact; we are talking about the transfer of powers and competences.

I apologise if that sounds narrow, but that is the limitation of the provisions of the Bill. Of course, we are aware of the need to avoid providing a loophole in our referendum provisions in case there is a proposal to use an accession treaty to transfer power or competence from member states other than the acceding state. That could occur, so this Bill provides for a clear requirement for a Ministerial Statement to be laid before Parliament about whether an accession treaty constituted a transfer of competence or power from the UK to the EU in accordance with Clause 4. If the Minister decided that such a transfer was proposed, a referendum would then be required, but if there was no such transfer no referendum would be required. I hope that reinforces the point that I was making earlier.

[Lord Hannay of Chiswick]

My Lords, as the Minister has touched on this point so clearly, will he make it quite categorical that if a Croatian treaty of accession in the next year or two is brought before Parliament and it contains the provisions on Ireland and the Czech Republic that were agreed as part of the ratification process of Lisbon, in which it was stated, by us as well, that they will be included in a future accession treaty, that will not give rise to a referendum requirement?

[Lord Howell of Guildford]

If one is talking about declarations or derogations within existing treaties and competences, that would not give rise to a referendum. If it was an occasion on which a whole range of new proposals were put forward, including some of those which noble Lords describe as minor or even trivial but which could in fact have highly significant effects on the powers, potentials, freedoms and obligations of this country, that would be a different matter. The kind of changes suggested by the noble Lord would not give rise to a referendum.

In line with all other treaty changes, an Act of Parliament would—

[Lord Davies of Stamford]

I am very grateful to the noble Lord for allowing me to interrupt him. This is a very important point. If the Bill is passed in its present form with its text unamended, is he confident that it could not subsequently be argued—if there are going to be judicial reviews of ministerial decisions on this matter—during the accession of a new member state that the mere fact of accession reduces the powers of this country because it dilutes our voting strength in the European Union under QMV and for other purposes?

[Lord Howell of Guildford]

It does not dilute our power to veto. Our power to veto is there unless it is removed by other transfers, which of course would trigger a referendum. However, if the power to veto is there, there is no dilution. We have heard from noble Lords who have spoken in this debate of the small but undoubted change in the proportion of the population of the total European Union that would result in this country if a number of other countries acceded. That is true, but the veto remains. There has been no transfer of power of any description or kind, which is what this Bill is concerned with.

I also wanted to say that any accession treaty provides Parliament with the full power and the opportunity to scrutinise the accession treaty, which we have done in the past. If it was so minded—a point that meets the concerns of the noble Lord, Lord Stoddart—a Parliament could legislate for a referendum. It remains the power of Parliament to do so. It is perfectly free to say, “Here is an issue on which we think there should be a referendum”.

[Lord Taverne]

Is the point made by the noble Lord, Lord Davies, not correct? If an accession reduces the voting power under majority voting procedure of the UK, that must mean a decline in power of the UK Parliament.

[Lord Howell of Guildford]

It does not alter the fact that the United Kingdom will continue to have a veto, as other countries will, unless we surrender positions of unanimity by abandoning our veto. That would be the position. It is perfectly true that there would be very marginal and small changes in the pattern of weighting, but there is no particular reason why they should involve a loss of power or a transfer of competence. They do not do so. The noble Lord, who is very experienced in these things, was talking about patterns in which all sorts of alliances are formed or not formed. All sorts of gatherings and countings of votes take place when Ministers go into these negotiations. That will continue as before. The accession of another country does not alter that pattern in any way.

The noble Lord, Lord Pearson, asked about the ways in which immigration or financial regulations might be affected by the arrival in the European Union of a new member state. He will recall that when Bulgaria and Romania joined the EU, we put transitional arrangements in place. We had the perfect power and legislative opportunity to do so, and we can do so again. Nothing in the treaty of accession prevents us from doing so and nothing has prevented us from doing so in the past.

I emphasise, as the noble Lord, Lord Triesman, and other noble Lords have asked me to, that, as with all previous Governments regardless of their political composition, we are strong supporters of future enlargement. Like some noble Lords, I remember the considerable uplift in spirits when first there was the fall of the Berlin wall and the Soviet empire and then when the processes of enlargement embraced one after another of its former satellite countries. We all worked, planned and hoped for these things. Some of us thought that we would never see them in our lifetime, but they did occur.

EU enlargement helps to create stability, security and prosperity across Europe—we have never disputed that—and serves to spread democracy, human rights, the rule of law and fair rules for workers and businesses. These standards are high although they are not always achieved. I am grateful to the noble Lord, Lord Pearson, for reminding us of a joke—which, frankly, I had heard before—about the standards of the EU itself. The EU is not, of course, a country; it is a vast confederal structure. It is a unique institution in the 20th and 21st centuries but it is not a country, and perhaps it is a little distorting to suggest that it should be judged in the same way as a nation state. However, that we favour enlargement in the way in which it has come about so far—and in the way in which it might come about in the future—should not raise one iota of doubt for a single minute.

Whenever a candidate country meets the EU accession criteria and it is decided that it is ready to join the EU, we will support its entry. The Government will present its case to Parliament through the introduction of a Bill that will be debated in both Houses and passed or not passed into an Act according to the will of Parliament.

I have little to add to the strong points that have been put by a number of noble Lords as to the fact that transfers of powers and competencies do not arise in the precise form in which we are dealing with them in the Bill; there is no competence or power transfer. The commitment in the coalition government programme for government is to have a referendum on treaties that change a power or competence from the UK to the EU. Treaties that merely allow a new country to accede do not meet this requirement. On that basis, I urge noble Lords to consider what I have said on this matter and to withdraw the amendment.

[Lord Stoddart of Swindon]

I thank all noble Lords who have taken part in the debate, particularly those who supported the amendment—the noble Lords, Lord Pearson and Lord Willoughby de Broke. I confess that I did not think there would be a debate of nearly an hour and a half on my amendments; I thought they would be dealt with very swiftly. I am pleased that I tabled the amendments because we have had a well considered and authoritative debate on the subject, whatever opinion we hold. That has been altogether good. I would like to reply to all the points that have been made but, including my own speech, there have been 15 speakers—the equivalent of the number of speakers in normal short debates that are two and a half hours long—and I am sure that the House would not welcome a long speech from me in these concluding remarks.

I say to the noble Lord, Lord Pearson, that I was interested in the way in which the Estonians were bribed, so to speak, to vote in the referendum with whisky and chocolates. I am sure that the Scots would be pleased that their product was being used in that way. I visited Estonia shortly after the referendum. It seemed, from the general view of the population, that they regretted the decision that they had made and wished that they could go back on it. That is by the by.

It has been a good debate with some important issues raised. Although the noble Lord, Lord Richard, does not support the amendment, he made a valid point that if we are going to have referendums on some rather less important things—public prosecutors and what have you—there is little merit in raising the question of having referendums on more major matters. That was taken up by several other noble Lords. It is clearly important that we realise that the Bill is deficient in many respects.

On the question of referendums, there appears to be a lot of opposition to referendums per se. That opposition is perhaps on the basis that those who do not want them believe that they cannot win them. That is a big mistake. We have referendums on all sorts of things such as mayors. The objective of having them is to give people a say on major items. I stress that it is on major items. We should not rule them out of our decision-making process.

Another point was raised by the noble Lord, Lord Triesman. I, too, welcome him to his new post on the opposition Front Bench. He may well be right to claim that the European Union has given us nothing but benefits. The noble Lord, Lord Pearson, and I have asked repeatedly for a cost-benefit analysis of our membership of the European Union. I hope that the noble Lord, Lord Triesman, might support the next Bill which asks for a referendum.

Another point was made by the noble Lord, Lord Howell, who suggested that we should not have referendums on the accession of new members because there are no new competencies. As I pointed out in my opening speech, the accession of new members has often if not mostly been the reason for new treaties transferring competencies to the European Union. In that respect, new accessions may well result in new competencies being given to the European Union and its institutions.

I again thank noble Lords for contributing to a good and essential debate. I do not intend to press the matter to a Division this afternoon but, after reading all the contributions to the debate, I might wish to bring the matter forward again on Report and perhaps even put it to a vote. In the mean time, I beg leave to withdraw the amendment.

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[Lord Howell of Guildford]

I certainly do not want to make a habit of too many interruptions, as we all know that debate in this place goes more smoothly without, but the noble Lord has made a number of statements which jar so strongly with the reality that I have to ask him what he means by them. He says that the passerelle and other arrangements in the Lisbon treaty would enable rapid changes to be made but we all know that any treaty, including the one now going through, takes 21 months. How can 21 months possibly be described as rapid? Furthermore, he seems to assume that the efficient and effective operation of the European Union demands all kinds of new treaties and to ignore the fact that within the vast range of competences that it has, a great deal can, must and will be done. Countries throughout the European Union are extremely reluctant to embark upon the complex, long process of European treaty change. These are all facts and they contrast completely with what the noble Lord has said in the past five minutes.

[Lord Liddle]

The Minister has misunderstood what I have been trying to say. I apologise to the Committee if I have been giving a false impression but this amendment’s subject encapsulates fully the point that I am trying to make. What concerns us is: why tie up all the flexibilities that are within the existing, ratified structure of the Lisbon treaty, which were discussed in this House in the previous Parliament? Why tie all of those up in referendum locks that could have a very negative effect on Britain's power to act in its own interests within the European Union? That is the point and this amendment looks at one of those specific and unnecessary locks. Let me try and explain its point.

Clause 4(1)(m), which we debated last week, requires an automatic referendum if any amendment is moved to the Lisbon treaty, as it could be within the terms of that treaty, to alter the right of member states to ensure suspension of the legislative procedure. In Euro-speak, this is called the emergency brake and covers three areas of EU activity: social security, judicial co-operation and cross-border crime. It is the right of a member state to refer a matter where legislation is proposed in those areas to the European Council before the legislation can proceed any further. Britain supported emergency brakes in these areas in the passage of the Lisbon treaty. It did so because the previous Government thought that as regards social security, judicial co-operation and cross-border crime there might well be an argument in principle for more Europe. Indeed, there were compelling arguments for more Europe in this area but as a safeguard, just in case we did not like the look of the way things were going, we wanted to see how it worked. Therefore there was a need for an emergency brake.

The logic of this very pragmatic position is that if we find in future years that the European Community is doing a good job in these fields, we will be prepared to rid ourselves of that emergency brake provision. Those who are disposed by nature to see everything that the EU does as a threat will never believe that anything can work, but those of us who think that it can be an opportunity should be open-minded about the possibility of the changes that are provided for in the Lisbon treaty.

I argue that these three areas are issues that are not of the highest national importance, like whether we join the euro, but are of significant importance where change might be necessary in processes that the Government might want to agree to. However, the Bill will require an automatic referendum. Look at them: first, social security legislation, which, as we know, is tied up with the right to work, study, and settle for retirement wherever you want in the EU, which is one of its most appealing citizenship rights; secondly, judicial co-operation, which is essential if we are going to effectively tackle the terrorist threats of the kind that the noble Lord, Lord Strathclyde, talked about earlier in his Statement on Osama bin Laden; and thirdly, cross-border crime, in terms of which we are all aware of the increasing problems of criminal gangs operated from outside the EU but often on its borders, in countries like Russia and some parts of the Balkans.

Surely we want to retain the flexibility to make Europe effective in those areas. That may require changes in these so-called emergency-brake provisions but, on a narrow but significant point, the Government are saying, “Oh no, we can’t do anything for at least seven years or so because we have to have a referendum and we are certainly not going to do anything about that this Parliament”. The argument from this side of the House is a different one: let us not tie ourselves up in these knots but have the confidence that in a representative democracy Parliament should deal with these questions; there is no place for a referendum on them.

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[Lord Hannay of Chiswick]

I am afraid that the noble Lord is going to be disappointed.

[Lord Howell of Guildford]

My Lords, if there are no further comments from your Lordships on this issue, it remains for me to seek to allay the fears of my noble friend Lord Waddington on a matter which is undoubtedly complex. Indeed, as the noble Lord, Lord Liddle, remarked earlier, the entire area is complex because the interface between the powers and competences of the European Union and the powers, rights and obligations of the nation state members is vastly complex and, in some senses, is in a somewhat fluid state. Indeed, it is that very fluidity that gives rise to the unease for which I believe there is substantial evidence, and I speak as someone who has been involved for just short of 50 years—even before the UK joined the then European Community—in trying to see that the European Union works in a balanced, effective and beneficial way. Over the past few years, not only in this country but in many countries we have seen an appalling record of declining confidence in, support for and public consensus over the whole construct of the European Union. In my view, the EU has conferred considerable benefits on its members and on the peace and stability of the whole world in the past, and, provided it proceeds in a sensible way with good public support, it will do so in the future in a number of, although not unlimited, areas. This is a perfectly sensible aspiration and one which I think the Bill and its aims reinforce, although I realise that that is not understood or accepted by noble Lords opposite.

The amendment would remove the provision setting out that future treaty changes which serve to codify practice under the treaties, in relation to the previous exercise of an existing competence, should not in principle require a referendum. My noble friend is concerned, as he says Members in the other place were during debates on the Bill, that codification could be used as a vehicle for transferring power or competence from the UK to the EU and that this provision might provide a loophole to allow such a transfer under a future treaty change without a referendum. If a treaty change is merely a codification of the previous practice of existing competence and nothing else in that treaty would fall within Clause 4(1) of the Bill, the Government do not think that a referendum should be required and the matter would proceed on that basis. Genuine codification—I emphasise “genuine”—is not a transfer of power or competence. The EU competence in question already exists and the EU has already acted to that effect. Even if the UK did not agree to codify existing practice by means of a treaty amendment, the EU would be able to continue to act within the relevant existing competence. Therefore, in effect there would be no point in attempting to go down another path because the EU would already be doing what it was doing within the existing competence.

An example of a treaty change which we would consider to be codification would be the introduction of a separate legal base for action previously taken to provide macro-financial assistance to some third countries. Article 352 of the TFEU, which we all know well, was used in April 2004 to provide macro-financial assistance to Albania. It was then used a further seven times to provide macro-financial assistance in a similar way to other countries. When the Lisbon treaty came along, it codified this use by providing a separate legislative base under Articles 212 and 213 of the Treaty on the Functioning of the European Union, which cover economic, financial and technical co-operation with third countries.

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[Lord Pearson of Rannoch]

My Lords, can the Minister give us any idea of the quantum at stake in this amendment, given the European Union’s well known capacity to take power by whatever method it can? He mentioned the use of former Article 308 and the noble Lord, Lord Blackwell, mentioned how we were deceived in the Maastricht negotiations over the working time directive which, in the end, turned out to be part of the social policy. How many existing competences are being practised which might require codification? Is this a big area or is it something that will not happen very often because there is not much left to codify or to put in the treaty or to agree?

[Lord Howell of Guildford]

I do not think it is possible to quantify what will happen, what is happening or what has happened. Codification has occurred from time to time and I described one or two instances where it has occurred. There have been more. I would love to be able to say to the noble Lord that it has happened 15 times and it will happen 15 more times, but that would be completely unrealistic. I have no idea how it will occur, but it is important to ensure that we understand what genuine codification is. It will occur again and, as my noble friend Lord Brittan said, it is an objective legal concept but it is a bit like an Omega wrist watch that seems to be genuine but turns out to have nothing inside. There are non-genuine codifications and we have to watch very carefully to see that they do not join the genuine move towards competence creep, which is a phrase that people do not like. The phrase that people like in relation to the European Union is “knowing where they stand”, believing, as I think the majority of people in this country do, in the value of the European Union but feeling thoroughly uneasy about it continuing to take too many powers away from the nation states. Most nation states in Europe do not want that and we do not want it either.

[Lord Waddington]

I beg leave to withdraw the amendment.