European Union Bill

Lord Howell of Guildford Excerpts

Monday 9th May 2011 Lords Chamber

[Lord Triesman]

My Lords, the noble Lord, Lord Kerr, made the point that the arrangements made under the NATO treaty, about its command structure and the obligations on members, have the effect, whether described as law or not, of determining how we behave in the defence of this country. It is impossible to argue that that is not substantively the case.

As I said earlier, this clause provides, more than anything else, the opportunity for continuous internal division and splits—not harmonisation or bringing people back to political activism and political understanding but rather the alternative. If the argument flows in the other direction—that we will never use it, or that the process of being bound to the mast is not really there and we will sail by without anybody noticing that it is happening—the Government should, out of courtesy to the House, simply make a statement that this is a form of dressing up a political proposal for people who feel disenfranchised in any respect by what has happened in the development of the European Union. They should say that that is what it is for; it is not at all for anything practical. That is really the status of this clause.

[Lord Howell of Guildford]

My Lords, this has been a very wide-ranging debate, covering all these amendments. Some very wise and profound observations have been made. It would be quite wrong not to say that many of the points raised feed into the arguments, the presentation of the Bill and how Ministers should think about it. There are matters on which to reflect, which we will no doubt come back to again and again. Indeed, on the track record so far, we are likely to come round this course several times.

There are still some serious misunderstandings about the nature and purposes of the Bill. It ranges over several extremely complex issues. The whole EU structure and its legislative underpinnings are enormously complex and have grown over decades from a series of legislation, treaty-making and so on. I do not disguise that for a moment. If noble Lords would find it useful, I am willing to put on record that I am very open, as are my colleagues, to any degree of informal discussions to elucidate what is intended by the Bill, since some noble Lords are perhaps, in their own words, still confused about aspects of it. These amendments are wide-ranging but they nearly all have the same broad objective. They are designed to remove requirements for a referendum or Acts of Parliament from the list of decisions in Clause 6. As the noble Lord, Lord Hannay, rightly said, their intention is to shorten the list. I want to explain why we should not shorten the list and to deal particularly with the passerelles.

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[Lord Howell of Guildford]

I accept that. I note that I had already crossed out the words “Act of Parliament” in my notes in anticipating that comment. Unfortunately, in the excitement, I put those words in, so I take them out again. However, when we come to the minutiae, there may be some qualification even to what I am saying.

I want to try to explain why shortening the list is not the right thing to do, and to deal particularly with the passerelle provisions, on which the noble Lord, Lord Kerr, commented with his enormous expertise and hinterland of understanding of these things, having been in at the creation of not all the passerelles—some have existed for many years but never been used—but of those that we dealt with in the Lisbon treaty, which we had first seen given birth to in the constitution, which unfortunately came to a sticky end.

I say as a preliminary that all this discussion about referendum requirements against treaty changes and for certain decisions where no treaty change is required, and for giving up vetoes—in other words, allowing the right to be outvoted on certain issues—takes place against a background of huge areas of existing power and competence in the European Union. When one thinks of the enormous range of areas where the European Union can legislate, and where we can develop all kinds of positive ideas and initiatives to enable it to deal with entirely new global conditions of the 21st century, I am always left a little bewildered that we should come back again and again to the probably, I suspect, fairly marginal areas—these may be very small areas indeed—where there is supposed to be a tremendous yen for new treaties and extending the competences and powers of the European Union. These are areas in the margin of the real world of the European Union, where many of us have been involved over many years, and where enormous tasks have yet to be carried out which do not require yet a further extension of the powers and competences of the European Union. I say that just as background; I want to come back to that point in more detail a little later on.

I turn more specifically to the amendments. Of course I am very pleased that the signatories to the amendment have accepted the principle that a decision on whether to join the euro is of such fundamental importance that the people should decide. I have argued before—Ministers have argued, the Government have argued and the Bill argues—that the referendum requirement is a vital part of rebuilding trust with the British people. We perfectly accept the point made by the Constitution Committee of your Lordships’ House that referenda should not be used, as it put it, as a “tactical device”, and that referenda should, as we argue, be used for more critical issues of fundamental importance. We therefore come down to a central question running through all this debate—what are the critical issues? What are the fundamental problems and matters on which it would be right for people to be consulted before powers are pushed away or—whether through treaties, various procedures, the passerelle device or simply a decision of this Government—they decide to give away a certain power or move in a certain direction?

We begin with a puzzlement as to why the other one-way irreversible decisions in Clause 6 that we are talking about and I shall come to in detail are considered any less important in the minds of noble Lords than the euro. I find it difficult, as do a number of noble Lords who have spoken with great precision and accuracy, to conceive that the monetary independence of the UK should be considered essential to our national identity and economic interest—an argument apparently accepted by the supporters of the amendments—but not the UK’s military independence and commitments to NATO, if it were decided to establish a common EU defence that might well conflict with those commitments. We have held many debates in this House in the past four or five years about the dangers of that.

Why consider just the euro but not the impact that joining the European public prosecutor’s office could have on the UK’s judicial independence, as my noble friend Lord Faulks clearly emphasised. I want to refer to that in much more detail. I note that the previous Government opposed that. The present Government are against it. Many of the Nordic countries think that it is an extremely bad idea. There is very little support at all for the proposition. Yet the suggestion that there should be a safeguard against what would be a major incursion into the criminal justice system in this country is not seen as important. I cannot give all the details, because I know that there are different views on this. What about the UK’s ability to police its own borders? This is a red-hot issue, yet for some reason it is not included in the list.

Allow me to elaborate on some of my remarks. A decision on whether to join a common EU defence is fundamental, as it could result in a common EU army—the noble Lord, Lord Kerr, said that that may not happen immediately; but it could happen—and in giving the EU the power and legal right to decide on the deployment of UK civilian and military assets in a way that is not the case with NATO. It is of course perfectly true that operational command is under an American supreme commander, and that on the battlefield decisions and powers may be taken that can subordinate British forces to others. However, the suggestion that we should move in a new direction and be aligned with some of the European Union’s ideas is a new departure. These would be huge decisions on which the British people should decide that are discussed on the doorstep.

It is reasonable to suggest that Parliament and the people are entitled to ask what extra benefit would be bought by moves of that kind. The UK has long valued its NATO membership and key bilateral defence relationships within Europe, of which the treaty with France announced last summer is one. The UK also values existing mechanisms for security and defence co-operation within the EU. Bilateral and multilateral co-operation is an essential part of our approach in the UK and to wider international defence—as has recently been shown in Libya and earlier off the coast of Somalia, through Operation Atalanta. All that is going on; all that is thoroughly sensible; all that is within the operational activities of the European Union and I find it hard to see why an advance into a completely new area of power delegation and power transfer should be brushed aside. It would be a major development.

I turn to the issue of the public prosecutor, because a good many comments were made on that. It is coalition policy that we will not participate in the establishment of any European public prosecutor. We know that it is a sensitive issue, as was recorded by the House of Lords Select Committee on the European Union in its 16th report seven years ago. It is perfectly true—the noble Lord, Lord Goodhart, spoke with great expertise on this—that Article 86(2) provides only for the European public prosecutor to combat crimes affecting the financial interests of the Union. Although that is so, the participation of the UK in a European public prosecutor would mean giving up control of a fundamental part of our judicial system: the decision on who can be brought for prosecution in this country. That is not a small matter. That is a vital principle. As Article 86(2) states, a European public prosecutor,

“shall exercise the functions of prosecutor in the competence courts of the member states”.

In other words, a European public prosecutor would have power to prosecute in those member states within the prosecutor’s jurisdiction.

In England and Wales, it is the responsibility of the Crown Prosecution Service to decide whether to prosecute and whether to take over any private prosecution, so powers granted to a European public prosecutor would cut across that well-established principle. As the noble Lord, Lord West of Spithead, when a Minister in the previous Government, informed this House:

“The Government have consistently opposed the creation of an EPP”.—[Official Report, 1/3/10; col. WA325.]

[Lord Kerr of Kinlochard]

I agree with everything that the noble Lord, Faulks, said on the European public prosecutor. It seems to me highly unlikely ever to be suitable to a common-law country such as us or the Irish. I am delighted to hear the Minister say that it is coalition policy is to play no part in that. It was precisely because of such considerations that the article in the treaty specifically provides for a group of nine or more to go off to do their own thing, so we are in a rather unlikely scenario here when we come to the point on which a referendum requirement is imposed. That is the question of whether the European public prosecutor’s office, set up to look after the financial interests of the Union and prosecute fraud against the Community budget—and unsuitable in this country as a vehicle for doing that—should extend its role to cross-border crime—human trafficking or whatever. That is a really unlikely contingency, because we will not be in the thing anyway. Surely, if we had an issue for a referendum, it should be: should we have common procedures for prosecuting people who traffick children? That issue is referendable. The issue of whether the European public prosecutor's office, in which we will be playing no part, should have its role extended into that area is a very rum one to choose to block. That is why the noble Lord, Lord Goodhart, was absolutely right to say that this provision in Clause 6 is completely inappropriate, although I agree with the noble Lord, Faulks, on the substance of the EPPO.

[Lord Howell of Guildford]

All these issues are interconnected. In Clause 6 there are two concerns about the surrender of our veto, and therefore the opportunity for others to outvote us on those matters and the agreement to go along with the public prosecutor proposal, which is, of course, already in the treaty. One is joining up with and adopting the European public prosecutor proposal; the other is the extension of the public prosecutor's competencies and the regime which might follow.

Therefore, those are both areas where, because successive Governments have set themselves against them, one hopes that the matter will not arise. However, it is one of the issues involving big decisions—and they are big decisions; there are five such issues and I shall come to them in due course—where there would not be a treaty change but where, as Clause 6 suggests, the British Government should put the matter to the people in a referendum, and the public prosecution proposal is certainly one of them. Perhaps I may mention the big five issues. I do not want to take an unlimited amount of time over them, difficult as it is to cover all the issues.

[Lord Radice]

The noble Lord may be right in what he has said—in fact, I think that he is—but there is a very simple answer. Cannot the Government just say no if they do not want any of these things to happen? That is surely the point.

[Lord Howell of Guildford]

It is not the point because, as your Lordships have been reminded in the debate in the past half hour, the proposition has been fundamentally questioned that the Government and even our parliamentary institution are always going to be the safeguard, ensuring that unconstitutional changes are not ceded and that powers and competence do not slip away, or creep away as some have said. Today, a majority in this country, so it seems—although we cannot be sure about the opinion polls—wish to have a greater say in these matters. It is not just a question of leaving it to the Government to say no.

I shall finish on the public prosecutor issue by saying that I continue to find it extremely difficult to understand why noble Lords opposite would wish to deny the British people the right to be consulted before any future Government decided to take such a sensitive and important decision on creating or extending—that is my point to the noble Lord, Lord Kerr—the powers of the European public prosecutor’s office.

I was about to elaborate on what I call the big five issues—I shall come to some of the other veto issues in Clause 6—on all of which I think it would be perfectly reasonable to have a referendum. They are: UK agreement for the EU to move to a common EU defence; UK participation in the European public prosecutor, as we are currently discussing, and extending the powers of the public prosecutor, which we shall talk more about; the UK joining the euro, which does not appear in the amendment because noble Lords feel that that one is okay; and abolishing UK border controls under Schengen. These are vital, red-hot issues, all bound up with talk of red lines, which have been mentioned in the debate, and it is almost incomprehensible that noble Lords should suggest that they are not important, critical or fundamental. Of course they are.

Because of the time and the fact that we have been debating this matter for some hours, I shall not elaborate on why the Schengen issues would also be very important and justify a referendum. However, we think that they would, and we believe that it is part of a need to restore trust that that should be on the statute book. If decisions are taken in this area by the British Government, there should be a referendum on them.

[Baroness Williams of Crosby]

I apologise for interrupting the Minister and shall be very brief. Given that a large part of his argument rested on the case that these were very important—in fact, he used the word “red-hot”—issues, can he say how we would sustain the argument that the referendum exercise would be inappropriate for important and red-hot domestic issues, such as council tax or taxation, because it would be for Parliament to make those decisions and not for a referendum of the people?

[Lord Howell of Guildford]

I can make the oversimple point that referenda have been used rather frequently, including by the previous Government and from the days of Harold Wilson onwards, as we heard. They have been used in this country and increasingly in other countries far more frequently than here. There is a more general point behind my noble friend’s intervention which is that we now live in the internet age. We live in an era in which people still admire, despite its many faults, and still support the principle of parliamentary government, as I most certainly do. There is a constant pressure for wider consultation and empowerment. Sixty-three per cent of people in this country are on the web every morning. People want a say. There is greater pressure coming for referenda. We heard from my noble friend Lord Deben that he does not like referenda. I think that several of my noble friends do not and I suspect that many throughout your Lordships’ House are not very happy about referenda. It is a question of balance and the balance has shifted. The shift is in the direction of a greater demand that fundamentally important issues, five of which I have just outlined—not one, but five—should be put to referenda.

I want to come in particular to the other items in Clause 6. There are six very important areas where noble Lords ask why they are there as they are issues that if decisions gave rise to treaty changes, they would be caught under Clauses 2 and 3. They are in Clause 6 because under the passerelle provisions, on which the noble Lord, Lord Kerr, is undoubtedly the leading expert, vetoes could be given up in those areas as well. The Government believe that the surrender of those vetoes would be transfers of power and that again there needs to be fundamental reassurance under this Bill and the beginnings of some kind of reconnection and support that there will be no further extensive and sometimes rather furtive concessions of powers and competences. We believe that these two should not be barred. The passerelle system should not be barred in any way, but if we look on it as a possible window for quicker procedures—I would question the quickness, incidentally, as I have some figures showing that it is very far from being quick—nevertheless one should put a lock on that window. That is all we are saying. We are not saying that the passerelle system should not be used but that there should be a lock to ensure that it does not provide the opportunity for power and competences to seep away. I add the point about the length of time taken. Passerelles are not the quick fix that some people suggest. In all the cases that one looks at about the future—of course, there is very little to look at in the past as most of these passerelles have never been used, which is for good reason—the evidence is that they would take six months or a year. They would have to clog up national Parliaments and would not be the easy way of getting round the issue of giving up vetoes.

In that sort of scenario I very much doubt that the British people would understand why they would be asked for their views on whether or not to give up the British veto on, for instance, common foreign and security policy by virtue of a treaty change but be not asked for their say before the British Government could do exactly the same thing through the passerelle procedure. That is why there is concern and why these matters are in Clause 6. I mentioned common foreign and security policy but there is a whole social policy area where there are very serious issues and the surrender of a veto would be a major surrender of power. The environment passerelle has been there since 1987. It has never been used, for the very good reason that countries do not want to use it because it takes time, is complicated and blocks up national parliamentary procedures throughout the European Union. The European Union's multiannual financial frameworks, introduced by the Lisbon treaty, are neither unimportant nor casual. They are highly important and giving up the veto over them would be a considerable departure and concession of power. The remaining vetoes concern not enhanced co-operation itself—which does not affect competence at all because it is not allowed to—but situations where, once we were in an enhanced co-operation operation, there might be pressure for it to go to QMV. All these areas are vital, not trivial. They are critical areas, in the language of the noble Lord, Lord Triesman, and there must be reassurance that they will not be, by a tick of a box, by launching into a long and complicated treaty procedure, or even by an Act of Parliament, simply turned into major concessions of power and competence.

I have not begun to answer every question and I will be happy to write to noble Lords about some of the very interesting amendments they tabled. I have in mind in particular the observations of my noble friend Lord Flight. As he said, they did not quite fit into the main thrust of many amendments from noble Lords opposite, but they were very interesting and raised important issues.

We have debated these matters very thoroughly and I will end by saying this. If one believes that the EU has enough competences and powers to proceed and to succeed, and that this is the context in which the UK can take the lead; that, far from being marginalised, we can continue to shape and be decisive in the European Union; and if one recognises that other countries are just as opposed to QMV and the moot case of passerelles—I mentioned Sweden, Spain, Ireland and Estonia, and there could be many others—one will see the case for the Bill. If noble Lords believe that all members of the EU are itching to bring forward new treaties, take new powers and extend competences, despite the fact that that would be a very slow and unpopular process in many countries and would clog up 27 national Parliaments, they will obviously disagree and there is nothing that I can do to persuade them otherwise.

If that is the way they see the future of Europe, and the future development of a successful and popular European Union that attracts and merits the public consensus in a way that it is not doing today, clearly they will also see the prospect of an endless treaty trickle that in my view would be a major contribution not to encouraging trust and support for a successful European Union but to undermining it. To noble Lords who insist on that view, there is nothing more than I can say, except that, in the view of the Government, such a procedure in future—a pattern that would come up against the proposals in the Bill if there were endless treaty changes appearing at all times—would be guaranteed to alienate people even more than they have been already, and would be profoundly hostile and not helpful to sound EU development.

Some noble Lords believe the opposite. The noble Lord, Lord Tomlinson, believes the opposite with great force and vigour. I always admire his energies, but I believe that his proposition that the Bill would somehow simultaneously weaken popular support for the European Union and respect for Parliament is 180 degrees wrong. The Bill points the way to much greater public confidence in Parliament and public commitment to the benefits of the European Union, and our role in it, in a completely changed world and international landscape. That is why I strongly urge noble Lords not to press their amendments, which do not add to the aims and goals of the Bill, or the aims and goals of a better and stronger European Union.

[Lord Kerr of Kinlochard]

I thank the Minister for his disarming response to the debate. It was an interesting debate. I am a little sorry that the Front Bench has not associated itself with the defence of the ECJ that I rather inadequately attempted.

[Lord Howell of Guildford]

Much of what the noble Lord said on that matter is correct. There is no question of challenging the integrity of the very senior legal figures who have served their country and Europe very well, and I associate myself with some of the noble Lord’s remarks, although some decisions coming out of the ECJ and the European Court of Human Rights are a different matter, and I would question them very strongly. However, I would not question that the personnel involved are men and women of integrity, uprightness and skill.

[Lord Kerr of Kinlochard]

I am grateful to the Minister. The most endearing feature of the debate was that it was the first of our debates in Committee where we all agreed on something. We all agreed that the grouping was insane. The Opposition Front Bench said that the grouping was insane, and the Minister said that the grouping was unfortunate. One wonders where the grouping comes from. Clearly nobody in the Chamber was in any way responsible for it. It came down from above. Perhaps it came out of Brussels or some dreadful place like that.

It was a difficult debate because of the amendments seeking to subtract, the amendments seeking to add and the amendments of very different weights. At the end of the previous short debate, there was, as the noble Lord, Lord Tomlinson, pointed out, a very significant move by the noble Lord, Lord Wallace of Saltaire, who indicated that he might be prepared to go away and think about something said in the debate. I urge the coalition to share this insight.

It would be extremely good if the Minister too would consider at the end of these debates whether there might not be something that he would be prepared to think about further. He has very kindly said that he would be happy to explain, meet informally and discuss, but that had slightly the ring of the schoolmaster: “If you guys only do your homework, you will in the end understand the wisdom of the Government’s Bill”. I am not sure that that is quite going to do the trick. I think it will be necessary to come back at a later stage to the scope of Clause 6, but for the moment, I withdraw the amendment.