European Union Bill

Lord Howell of Guildford Excerpts

Wednesday 25th May 2011 Lords Chamber

[Lord Liddle]

I think we should thank the noble Lord for that, so that we can get on to our quick lunch and then to President Obama.

This debate on sunset clauses has been important. Amendment 63 is in my name. Frankly, I would happily support any of the amendments, because in this long Committee stage the Government have failed to make the case for the detail of the Bill as it stands. Because they have not done so, we are legitimate in proposing a sunset arrangement. Of course, on this side of the House we accept that there is a genuine issue about the popular legitimacy of the European Union. That is a matter for regret from our perspective, but it has to be addressed. The best way in which it could be addressed in this country is by establishing a cross-party consensus in favour of our membership of the European Union and for all parties to speak in that way. I do not think that the Bill is going to do much to establish that cross-party consensus, but it is an opportunity to address anti-Europeanism in our country. The rise of populist parties in other parts of Europe is also a matter of great concern. Britain is not alone in facing this legitimacy question.

We need to do something to strengthen the EU’s legitimacy, but do we need this Bill? There are features of the Bill that the Government have put forward that we are prepared to accept. They represent a strengthening of parliamentary accountability and of the circumstances in which referenda might be held. We now accept, which was not the case when the Lisbon treaty was ratified, that most of the things that come under passerelles and other consequentials of the Lisbon treaty should require a full Act of Parliament. I say to the noble Viscount, Lord Trenchard, that this side supports strengthening parliamentary accountability over what decisions the Government take in Europe. On that, we are agreed. We also accept the codification in statute of the political consensus that we would have to have a referendum to join the euro and that referenda should be considered on issues of major constitutional significance. As I said earlier in Committee, a major constitutional treaty that, for instance, led to the direct election of the president of Europe would be that kind of constitutional change that would require a referendum. There is also a strong case to be considered for referenda should we wish at some stage in our national interest to surrender our border controls or to establish a common defence force. These are very big issues which could be suitable for referenda.

This Bill does not do that. It does not focus on the simple, straightforward case that in most issues you should strengthen parliamentary accountability and then on really big issues you should accommodate the possibility of referenda. Instead, it puts in place multiple referendum locks. We count 56, although I am not quite sure whether that number is right. This is a wholly new constitutional innovation on which many Members on all sides of the Committee have expressed severe reservations. In the course of the Committee, we have tried to reduce the number of referendum locks. We have argued, again with the support of a broad range of opinion in this Committee, that Ministers should be able to exercise judgment about which matters are significant on many of the minor changes and minor treaty revisions on which this Bill imposes a referendum lock. We have argued for a parliamentary process—a Joint Committee of both Houses—to consider where referenda might be necessary. We have supported amendments that would simplify Clause 6 and boil down the number of referendum locks to the really big issues.

We have had no give from the Government on any of those issues through this long Committee. That is why we come back to say that the Government have not been prepared in any way to consider the wide range of opinion in this House that the Bill needs substantial amendment, so it is right to suggest that if it is to stay as it is, the whole thing should be sunsetted. I do not blame the Minister for that; I think he has very little freedom to make concessions in this House. The only time we will get concessions from the Government is if, in voting on Report, we can make changes to the Bill. We have no intention of pressing the issues to a vote today. The whole Bill rests on the misjudgment that the leadership of the coalition has made that Europe is somehow a dead issue in our national politics; that the Lisbon treaty was, as it were, Europe's last gasp in terms of changes in its constitutional architecture; and that the Bill is therefore a cheap bone that can be thrown to the many Eurosceptics on the Benches supporting the coalition in the House of Commons.

That is a great shame for a couple of reasons. First, as the noble Lord, Lord Kerr, said, no one can precisely foretell now how the European Union might have to adapt in future. Therefore, the warning of the Council’s former legal adviser, Jean-Claude Piris, that Britain might find that others go ahead and Britain is marginalised, is likely to prove correct were the Bill to last for the longer term. It could have that very damaging long-term effect on Britain's position in Europe. That is a shame, because the coalition Government, in their day-to-day policy on Europe, are trying to be positive. They present the Janus-faced stance of appealing to the anti-Europeans with this disgraceful piece of legislation on the one hand; and yet, when they go to Brussels, they try to present a positive picture of Britain's role in Europe. They signed up for the defence treaty with France. They have argued for deepening the single market. I would not disagree with a word of the speech to be made today by David Lidington, the Europe Minister, which was trailed in the Financial Times this morning. The Government are being positive, but the truth is that, were the coalition to stay in power—of course I would not wish for that—or the Conservatives to be in power for the longer term, if they wish to pursue a positive European policy, because there will need to be adjustments to the rules over time as well as to decisions, they will find their Bill increasingly an albatross. I think that it was my noble friend Lord Davies who described it as the handcuffs of the multiple referenda.

That is a great pity, because far from Europe being a dead issue, we are at a turning point in our national affairs where, in economics, we have in this country to search for a new economic model. We have to rebalance our economy, which can be done only through rebuilding our export strength. Nothing is more important for that than our full engagement in the European single market, and therefore we have to be as co-operative and positive as we can. In terms of our role in the world, we should heed what the noble and learned Lord, Lord Howe, said in his speeches both today and a couple of days ago. As Asia emerges ever stronger, Britain is more dependent on the influence it can multiply through the European Union to have a role in the world. These are big reasons for showing our full commitment to Europe and why we have to be prepared to be flexible in our dealings with our partners rather than lock ourselves out, which is what the impact of this Bill will be.

In conclusion, like the noble Lord, Lord Kerr, who quoted from A Midsummer Night’s Dream, on this side of the Chamber we believe that the European Union is a lasting dream, but this Bill is a nightmare and should be sunsetted at the Report stage.

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

My Lords, I thank all noble Lords who have participated in this debate, sometimes colourfully. There have been a lot of references to William Shakespeare, which I was rather glad about, having spent many years as a director of the Globe Theatre. I have sat through some Shakespeare which, frankly, I could not understand, but in other plays I have heard some wonderful, inner-illuminating phrases, so I am glad they have come into our debate. The noble Lord, Lord Kerr, has led the way in that. As to whether he is Prospero doing such things as cannot be described, whether he is King Lear, or whether he remains in his midsummer night’s dream, I do not know. Perhaps I should leave Shakespeare there.

I thank the noble Lord, Lord Liddle, for his presentation of his party’s position. I listened carefully to him, and if I may put this in a non-derogatory way, I would say that his speech was constructive in parts. He is right that we are at a turning point in the European Union. Indeed, one of my criticisms of some of the comments made during this long Committee stage is that we seem to be discussing the EU of yesteryear, a sort of pre-Lisbon world. Not only are we in a post-Lisbon world, we are moving into an entirely new international landscape where power is distributed in different ways. We have all said this to each other, and I know that your Lordships are acutely aware of it, possibly more than other bodies are.

There is a new international scene that requires new policies and approaches by both the member states and the European Union itself. The noble Lord was therefore right to say that we need to build a new consensus in support of the European Union and our role in it, but I must say that he has failed utterly to convince me in his various interventions, including this one, that the flexibility which Her Majesty’s Opposition seem so keen on and so anxious to see, would not turn out to fill the Bill with holes and undermine all our efforts to create consensus and restore the confidence and trust of the people so that they do not feel that the political class—Governments and Parliament—was not undermining their position in a stealthy way. This seems to me to be a contradiction that is not yet clear.

We will come to Report after the Recess. A great many wise and useful things have been said by Members on all sides in our Committee debates, and of course the Government will consider everything that has been said. My colleagues and I shall certainly do so before we reach the next stage. That almost goes without saying. For the moment, however, I must address the amendments before us, all four of them, about the idea of a sunset clause. It will not be much of a surprise to your Lordships when I say that the coalition Government, for which I am the mouthpiece today, oppose the proposal for a sunset clause. Although I know I shall not get full agreement, I shall try to set out as precisely and as clearly as I can why we do so.

Let us start with the general proposition of including a sunset clause, and why it would be absolutely unprecedented and extraordinary to include one in this kind of legislation, which is constitutional legislation—there is no disguising that—and intended to build a consensus to improve and enlarge our democracy in the modern world, in the midst of this informational revolution that has transformed the whole nature of public domain and decision-making, and to give the British people a greater say, which they clearly want, over important decisions on the future direction of the EU.

I do not at all share the view that these are obscure and arcane issues that no one discusses. On the contrary, particularly the much-maligned Schedule 1 issues, and indeed many others in Clause 6, are highly contentious so-called red-line issues which both Parliament and the public have stormed over—and the media have often joined in in ways that some of us find unattractive and not suitably calibrated. However, these are red-hot issues. The idea that they are not absolutely central to the concerns of the British people—to how we govern ourselves, position ourselves in the European Union and conduct our domestic affairs—seems to me not to be of the real world.

These are very serious and central issues. The truth is that a sunset clause of the kind proposed—we are dealing with a number of different aspects, which of course I want to come to—would seriously undermine our attempts to reconnect the British people with the European Union in its changing form and the decisions taken in their name. Here I would say that I do not think that the noble Lord, Lord Pearson, will accept—but I ask him to accept—that I am very tempted to have a lovely debate on the eurozone in all its aspects, but I do not think that this is quite the opportunity or even the time to do so.

Let me return to this general idea that there should be a sunset clause in a Bill such as this. There were no sunset clauses, of course, in the Constitutional Reform and Governance Act 2010 or, indeed, the European Communities Act 1972, and there is a very good reason for that. Such clauses would be a recipe for uncertainty where certainty is most needed, namely in the framework by which our democracy works. This Bill belongs to the family of certainty-building and not to the family of those who wish to experiment and say, “Let’s just try this measure once and then close it down again”. It would hamper our efforts to rebuild the trust of the people that has been lost in recent years. Why? It would hamper them because we as a Parliament, and the Government as well, would be saying to the British people, “You can have a say on future transfers of competence or power from Britain to the EU, but sorry, it’s only for a limited period unless the Government decide in their wisdom that the right should continue”. That seems to me to be completely the wrong way to go about the purposes, which even the noble Lord, Lord Liddle, seemed to share to some extent, behind the Bill. It would of course also absolutely guarantee the further alienation of Government and Parliament from the people whom we are supposed to serve and whose support and understanding of the values of our effective membership of the European Union we want to increase. It would be a retrograde step in the whole battle—

[Baroness Falkner of Margravine]

Given the time, I am sure that the noble Lord is keen to get under way, and I will not intervene again. Perhaps I may just put to him the simple proposition that if he is concerned about uncertainty at the same time as being concerned that the Bill’s fundamental purpose is to reconnect with the voters, the ideal solution would be to have a sunset clause sometime in the future with a general election in the middle, allowing the voters to express in that general election their view one way or another on how the Bill has panned out.

[Lord Howell of Guildford]

What parties put in their manifestos is certainly not within my control or that of anyone else in Parliament. The parties can make their own decisions. I respect very much what my noble friend and her colleagues are saying and the nature of their amendment, and I want to consider it in considerable detail in the time left. I consider that a very important thing to do.

I was just saying that if the pattern I have described is the right one, the measure would be a retrograde step in an age when the British people have come to expect more of a say than ever before in a wider range of issues. We might not like it, but that is the reality. That applies not just to the British people, of course, but to electorates throughout the entire planet, of which one-third are now on the worldwide web with their linkages and networks expressing their views. Therefore, this measure would do nothing whatever in our view to help to demonstrate to the British people why our continued membership of the European Union is in the interests of everyone in this country and in our national interest. That is something in which this Government believe, although it is not a view that is shared by all noble Lords.

We would be taking power away not only from the British people but from Parliament, because what this Bill does in part, as the noble Lord, Lord Hannay, and others have reminded us, is to enhance the power both of Parliament and the people. We would be promising Parliament more control over decisions taken by the Government at the EU level only to take it away again. Weakening parliamentary control in this way would run contrary to the key principle of the Bill. That principle, incidentally, has been welcomed by the Constitution Committee of this House and by a number of noble Lords in debate.

The noble Lord, Lord Taverne, spoke with great fluency and feeling on whether the Bill binds future Parliaments. Given his remarkable career, he has been at the centre of how the EU should develop and how Britain should work within it, so I totally respect his comments. However, this Bill does not attempt to bind future Parliaments. That is not its intention and it is not the way in which it works. It is open to this and to future Parliaments to repeal, disapply or amend this legislation, once it has been enacted, as Parliament can do with all legislation. The Bill does not alter this fundamental tenet of parliamentary sovereignty, and nor should it. I pray in aid here an interesting remark of Edward Short, a man for whom I had great admiration although he was not on my side politically. When he was Leader of the House of Commons, he said during consideration of the Referendum Act 1975, which my noble and learned friend Lord Howe remembers so well:

“Although one would not expect hon. Members to go against the wishes of the people, they will remain free to do so”.—[Official Report, Commons, 11/3/1975; col. 293.]

Rather than binding future Parliaments, this Bill is an attempt to engage and guide this and future Governments—not Parliaments—and to bind them to seek the views of Parliament, and where necessary the British people, before signing up to any further transfers of power over and above the powers and competences that the European Union has. I have argued throughout Committee that those powers and competences are ample—some would say they are more than ample—to perform all the tasks that we want to see performed in the upgrading, development and strengthening of the European Union as it adjusts to 21st century conditions. It is our wish and our intention that this Bill should become a settled part of this country’s constitutional furniture. If people say, “You should not say that”, my answer is that any Government wish to see their architecture—their longer-term aims and hopes—last into the future and be adopted by the next Government.

One makes no secret of the fact that where we are talking about architecture rather than a one-off task, it is natural that we should want the following Government to pursue it. I recall being a member of a Government some decades ago who promoted the dreaded phrase “privatisation”. In fact, the noble and learned Lord, Lord Howe, did me the honour of suggesting that I had invented that word, adding that it was a particularly ugly one and everyone wanted to get rid of it. However, privatisation came in with a range of laws. We hoped and prayed then that successor Governments would not repeal those laws and renationalise everything. Our hopes were fulfilled. The successor Governments to the Conservative Governments of those days kept the balance of the private and public sectors; indeed, they enlarged the private sector. We did not say that we would bind the next Government; we merely hoped that that architecture would stay in place. It did, and exactly the same issues apply now.

I made the point a moment ago that the Bill seeks to bind future Governments. All Governments, when they put long-term measures in place, do not want to see future Governments just chuck them out. This Government said in the coalition agreement that they would not agree to any further transfer of competence or power from the UK to the EU in this Parliament, nor do they intend to do so. We think that the European Union has enough competences and powers and we see no great need or pressure for expansion or for the flexibility about which the noble Lord spoke from the opposition Front Bench. Of course, the Bill, from the very moment it becomes an Act—if it does—applies to this Government as much as to future Governments; I cannot see anyone suggesting otherwise.

Any treaty change would still need a statement from the Government and an Act of Parliament; any passerelle would still require parliamentary approval. It may be—for nothing is certain in the future—that for whatever reason, however unlikely it is and however much it goes against our firm coalition commitment, a need emerges to agree some great treaty change that would transfer competence or power during this Parliament. As the noble Lord, Lord Taverne, said, we cannot be sure. That is all the more reason for having this Bill in place.

If such things appear, and if they fulfil the conditions described in the Bill and relate to very serious issues—I think noble Lords underestimate how serious many of these issues are, particularly those listed in Schedule 1—there would be a referendum. That makes it all the more important that the Bill be in place, to govern, reinforce and consolidate the political commitment of this Government with a legal undertaking, and we hope to guide future Governments along exactly the same path.

Your Lordships are of course aware that this Government have a policy to ensure that, where new regulations on businesses can have a time limit put on them, then they should. That is quite different; that is for a specific operational reason—to ensure that businesses are not overburdened by bureaucracy. There are other areas where the sunset idea is valid. The Prevention of Terrorism Act 2005 allowed for an annual review of extended detention periods for terrorist suspects. There was good reason for that, since severe forms of control order require a derogation from Article 5 of European Convention on Human Rights legislation before they can be implemented.

More recently, the Public Bodies Bill contains a sunset clause—which has been described as a “use it or lose it” clause and makes perfectly good sense—to allow a fixed time for the Government to introduce desired reforms through provisions that would then expire. The noble Lord, Lord Kerr, raised the question of the sunset amendment to the Fixed-term Parliaments Bill—that was not a government amendment but was inserted by your Lordships in their wisdom. As was explained in the debate, one can see perfectly well why. The coalition exists, and I hope that it continues to exist in strong fine form during this fixed-term Parliament, but after that we have a new landscape. Who knows who will govern? Who knows what the pattern will be? It made perfectly good sense for that legislation to have a limited life before coming to be re-examined.

These examples and others have been in cases where power has been given to the Executive on a given issue for a given period of time. The contrast with this Bill is total. This Bill seeks to devolve power from the Executive to Parliament and the British people. I am afraid that the amendments would take away that devolving effect and, in effect, give it back to the Executive. As my noble friend Lady Nicholson said, matters would again be left purely in the hands of Ministers.

Furthermore, and I say this particularly to my noble friends who suggested that in Amendment 64 one might have a middle way—a little bit of sunsetting, but not too much—a system of post-legislative scrutiny is in place for all legislation, not just the legislation before us today. If people are surprised to learn that, I tell them that in March 2008—this is an inheritance from the previous Government—Ministers put in place a systematic process whereby, between three and five years following Royal Assent to an Act, the Government must submit a memorandum to the relevant departmental Select Committee comprising an assessment of the operation of the Act relative to the objectives of the legislation. The relevant committee can then decide whether it wishes to conduct a more extensive scrutiny of the operation of that Act. That is what will happen anyway. I think that noble Lords will agree that it is a bit of a contrast to the idea in Amendment 64 that if the Bill expired at a certain time, new legislation would be needed to restore the role of Parliament, and would take it back even to the 2008 position, let alone the position that I think all parties want today. Such matters will still be decided by Ministers. Although I can see that the amendment is meant to be a pragmatic solution, it would not actually solve—in fact it would dissolve—the requirement for more trust.

Our sincere hope in government is that future Governments will not cut the cord of returning trust, which the Bill provides for, and that they will not take this step back in time to the age of suspicion over the European Union and its direction that we knew in the past. There is nothing in this legislation that binds Parliament, because one cannot do that.

I have outlined powerful reasons for the Bill—not least the need to meet effectively the legitimate expectations of the British people for a say in whether or not to transfer further powers to the European Union, which is not necessary at all at the moment; and not least the need to align our country with the movement throughout Europe for a greater democratic say by the people. That is an attitude that my honourable friend the Minister for Europe has encountered as he has visited every Government and talked to a vast range of Ministers and public opinion formers throughout all member states. He has never found the ideas and proposals of the coalition in the Bill any problem at all. I say that to the noble Lord, Lord Kerr, who suggested that I should do a bit more travelling. I should quite like to do a bit of travelling, but my duties nowadays frequently seem to be here. Perhaps I will be released over the next few days for a little travelling. Indeed, I intend to head off to the Middle East almost as soon as these debates are over.

Those are the reasons why, with the best will in the world, the idea of sunsetting or expiring legislation that can be renewed in some way by a future Secretary of State does not belong to this kind of legislation. This legislation is intended to be the architecture for a better and more settled relationship between this country and the European Union, by our exertions, and one hopes in the European Union generally, by our example. That is the possibility of the future. It does not to any degree tie Ministers’ hands in the way that has been dramatically asserted, just as the negotiating positions of other Ministers in other countries with similar restrictions—sometimes by referenda or complicated mandates agreed with other parties in their Parliaments—are not tied but strengthened.

All of that is a fear of hobgoblins that I suggest my noble friends should dismiss. There is nothing in this that weakens our position, but there is a great deal that strengthens it. There is a great deal of hope for the future in better and settled relationships with the European Union, with popular support. That is why, for the time being and as an enduring fact, I have to say that sunset clauses do not, alas, fit the purpose of the Bill. I ask the noble Lords who have suggested them to withdraw them.