European Union Bill

Lord Howell of Guildford Excerpts

Wednesday 13th July 2011 Lords Chamber

This is an example of the fact that it is not enough to dismiss the proposals as if they were superficial and politically driven. It is clear in one area after another that the issue of thresholds is alive and relevant, and that already, in other spheres of legislation, there are very strong arguments that thresholds must be seriously considered. I advise the House to be a little careful about simply dismissing the argument for some kind of threshold.

[Lord Howell of Guildford]

My Lords, I hesitate to enter again into the whole great debate on referendums, which really moves us away from the issues of the European Union Bill. My noble friend Lady Williams has again put forward some strong arguments. These are matters that have been debated over the years. When we come to a Bill of this nature, the issues are similar to when one comes to legislation about local elections or elections to the European Parliament. Indeed, I believe there is even a parliamentary election on record in this country where the vote has been below 40 per cent but no one has suggested it should be invalid.

I suspect this debate will continue, but it is the view of the Government that in these circumstances such a threshold would create a charter for the abstentionists. It would be extremely attractive to those who were anxious not to vote and to promote the desire not to vote. It would undermine the whole purpose lying behind the structure of the Bill, which is to check the haemorrhaging of confidence and popular support for the European Union’s development and to reinforce the case for the European Union’s development. That is why I am a little sad to hear those who have dedicated their lives and efforts to promoting an effective and fit for purpose European Union not supporting it. However, I understand the alternative views and I leave the matter there.

[Lord Hannay of Chiswick]

I am grateful to the noble Lord for giving way, but it is a pity that he has to caricature what the original amendment said. It did not suggest that a vote with a turnout under 40 per cent would be invalid. It suggested that it would be advisory and not mandatory—that is completely different. Frankly, some of the arguments that were adduced about the level of participation in the European Parliament elections are not transposable whatever to the area we are currently discussing, which is a national referendum.

[Lord Howell of Guildford]

Perhaps I should have hesitated longer before speaking because we are opening up the whole issue again. The invalidity I am applying is that the referendum would then become advisory, whereas the whole requirement and central thrust of the Bill is that the referendum is mandatory on Governments, not on Parliaments—you cannot be mandatory on Parliaments. That is what I intended to say, so I am sorry if I did not convey it accurately. We have had the debate, so I beg to press the Motion.

Motion agreed.

--- Later in debate ---

[Lord Lamont of Lerwick]

That question was raised by the noble Lord, Lord Taverne, earlier in the debate. The answer is: just as they vote in elections. They have to decide on five or six issues in an election. In the past, there were referendums in other countries on treaties in which they had to decide on a series of questions raised by those treaties. I repeat my point that where a veto exists, it is not necessarily just at Britain's insistence but because other countries, too, wanted it.

Thirdly, I think we will have referendums only where a British Minister agrees with the proposition that will be put to the people of this country, and where the Government believe that they can win the referendum. For that reason, and with great respect, I do not agree with the point made by the noble Lord, Lord Hannay, that our flexibility in negotiations will be impeded because a certain area is covered by the possibility of a referendum being held on it. If a Minister wishes to argue in favour of something, presumably he is confident that he can sell it to the public. If he cannot sell it to the public, and they are going to disagree with it, perhaps he should think carefully about whether it should be advanced at all. Therefore, although I agree with the general proposition that we do not want to go down the road of having a massive extension of plebiscitary democracy, I do not think that that will be the consequence of the Bill. That assertion has been repeated many times, but the argument is not convincing and I urge my noble friend to support the Government on this.

[Lord Howell of Guildford]

My Lords, I hope that I will be forgiven if I say that I have a faint feeling of having been here before—and forgiven also for not responding to every strongly held view and argument put forward in this debate that was put forward again and again in the past. The Government and I regard some of these arguments as deeply flawed and consider that they do not understand or come to grips with the realities of political life today, either here or in the rest of the European Union. I will also deal briefly, as is the custom, with the Motion—it is not the custom to make long second speeches on a Motion—and with the amendment moved by the noble Lord, Lord Liddle, which goes very much further than anything standing against the Government’s Motion that the amendments be resisted.

On the decisions involved in Clause 6, none is in the grey or insignificant category. They are all there for very strongly established reasons that are largely supported by many other countries. Many vetoes are maintained because the signatories to the Lisbon treaty did not want them to go into the QMV category. They are there because their use could only ever provide for a transfer of competence and power from the UK to the European Union—for reasons that we have explained from this Dispatch Box and that many of my noble friends have explained again and again—and so should be subject to the referendum requirement.

It is difficult to accept that any of the decisions in Clause 6 would not be significant in constitutional or economic terms. Those who say that it stretches their imagination to understand the significance of the measures listed in Clause 6, or Schedule 1, which springs from it, surprise me. Surely a decision on whether to give up our vetoes on, for instance, the multiannual financial framework, border controls or joining the single currency—I refer now to the amendment of the noble Lords, Lord Liddle and Lord Triesman, not to the main one that accepts them—would all fall, under Amendment 13B, into the bracket of something that had to be judged according to whether or not it was significant. This is a completely unnecessary process. Clearly they are of the most profound significance.

I know that the shadow Minister for Europe said on Monday that he considered other items in Clause 6 to be not so important. He exempted the important three—border controls, the European currency and one other—but dismissed the others as paperclips and minutiae. We do not accept that analysis. We firmly believe that the other issues are also of great significance and, when understood in terms of their impact on jobs, work and the processes by which our law system operates, certainly could be subjects of conversation in the pub in Burton-on-Trent, where the noble Lord, Lord Lea, has been listening to conversations.

On the European public prosecutor, I know that it is regarded by some of my noble friends, and by some noble Lords opposite, as not being of constitutional or economic significance. However, it is because it involves affording a supranational body the ability to prosecute citizens of this country within the scope of its own criminal justice system in respect of alleged crimes affecting the EU's financial interests. Someone must decide what that financial interest is and whether the crime has been committed. Is that a paperclip or minutiae issue?

What about the vetoes listed in Schedule 1? Why are they not significant when they all relate—that is why they are there—to the red lines adopted by successive Governments, fought for very hard by the previous Government and sustained by this Government, covering foreign affairs, security and defence policy, economic and tax policy, including issues of the EU's budget, which all of us admit is a red-hot issue, social security, employment policy, justice and home affairs policy, and citizenship and elections? Are these all minutiae, paperclip decisions and things that are never discussed in any pub? I have to ask where some of my noble friends, and some noble Lords, have been if they think that these matters are of no significance, because they include not only domestic issues, where after all Parliament can make and unmake laws, but transfers of power, sovereignty and competence that would almost certainly be irrevocable—in fact, they would be irrevocable.

The amendment before us would, for instance, allow the British Government to relinquish their veto over decisions relating to the multiannual financial framework without first getting the consent of the British people. That is a hugely important decision that Members in the other place were particularly concerned with, and rightly so. The Minister for Europe rightly pointed out that the forthcoming decision on that framework will in effect set budgetary decisions and ceilings for the next five to seven years of the EU's life and development. Are these minutiae, paperclip decisions or matters that people will not understand? I ask my noble friends and noble Lords who think that these matters are insignificant to think again. Their significance is obvious.

It is vital that these matters remain subject to unanimity and that whichever British Government are in office—this matter should be above party—continue to have the right of veto. Similar views are taken in almost every other country in the European Union. We all know what happens when one gets casual about the veto and lets it go. This was the case in the surrender of the veto on Article 122 of the TFEU, which opened the way to fearsome, huge and titanic new financial commitments to the funding of Europe in its present financial difficulties.

The amendment before us would reduce precisely the clarity that we all seek. It would also risk the possibility of judicial review on a decision by the Minister not to consider one of these clear-cut decisions to be significant. The so-called pragmatic flexibility that the noble Lord, Lord Liddle, keeps reminding us about and seeks could well be impeded by his own amendment. He would end up in a quagmire of pragmatic flexibility of his own making. It was too much of this pragmatic flexibility approach in the past that caused antagonism—the turn-off, if you like, of popular support for the European Union and for Ministers’ actions. The ministerial discretion that some of my noble friends and noble Lords call for has become the ministerial indiscretion and undermining of trust and support for the European Union that we are trying to correct.

[Lord Goodhart]

Would my noble friend accept that it is impossible for a court to make decisions on what is done in the Houses of Parliament? If the Minister declares, therefore, that he believes something to be—or not to be—a matter of importance, it is not a matter that could then go to the courts. It would be settled by the House itself.

[Lord Howell of Guildford]

Ministerial decisions are open to judicial review. That is not a matter that we discussed much in Committee or one that we would necessarily want to see operate very fully in this or any other area of ministerial decisions on any aspect of policy. However, judicial review is there and ministerial decisions can be challenged.

The House of Commons has twice approved the scope and operation of Clause 6 following a clear exposition from the shadow Europe minister and his views on party policy on Amendments 6 to 13.

I do not want to take further time meeting the marginalisation argument. Frankly, it is a chestnut, as there is absolutely no impact on Ministers’ discretion and flexibility merely because they have sanctions behind them. Most European member states’ Ministers have sanctions of various sorts lying behind them on the decisions that they reach.

The plebiscitary democracy issue, frankly, belongs to the pre-internet age, before the web and the internet system. We see all around the world the wider public’s insistence on having a say where major issues about the transfers of power and competence away from their sovereign control are involved. That is exactly what would happen here. The idea that there would be 56 different referenda coming along is pure fantasy and does not relate to the actual way in which these issues would arise. There would be no great frequency of referenda; this is not the pattern for the future. It will not be the result of this Bill and it certainly would not be the outcome of the way in which the European Union has operated, is operating, or is likely to operate in the future. It is not in the interests of the 27—maybe soon 28—members to proceed in that way.

I think that the noble Lord would be wise to accept the Motion and the view taken in the other place. He would be wise to reject the amendment and therefore I ask him to withdraw it and accept the Motion so ably moved by my noble friend.

[Lord Liddle]

My Lords, we have had a full debate, and I do not want to take up the time of the House. I just want to make one comment on what the Minister has said. As you know, I believe in the noble Lord’s integrity in putting this Bill forward. I do not believe he is putting it forward for anti-European reasons. I do not think that that is what he thinks, but the truth is that the list of referendum locks contained in this Bill far exceed any reasonable person’s definition of issues of fundamental constitutional significance. On that basis, I would like to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Howell of Guildford]

That this House do not insist on its Amendment 15 to which the Commons have disagreed for their Reason 15A.

15A: Because Part 1 and Schedule 1 are not provisions to which it is appropriate to apply a sunset provision.

[Lord Howell of Guildford]

This is the issue of the sunset clause. I believe there is another amendment to be moved which is related but with a slightly different emphasis. We debated this proposition at considerable length throughout your Lordships’ consideration of the legislation. We know there are a number of sunset clauses in a number of pieces of legislation, for the most part for specific operational reasons. The Lords has expressed concern over the granting of new extraordinary powers for the Executive, such as in response to the firefighters’ dispute eight years ago. In all these sorts of cases, Parliament has sought to ensure that these powers were retained for only as long as was necessary.

With the Bill there has been a rather different line of argument. There are those who have a general dislike of the Bill, which they are perfectly entitled to have, and there have been arguments put forward in favour of a sunset clause because, it is claimed, this legislation seeks to bind future Parliaments. I repeat what was observed in another place—I perhaps have not comprehended the value of any counterarguments to it—that all legislation by a Government can bind future Governments, and maybe the Government of the day wish it would. All legislation is reversible. The need for additional provisions in the Bill seems weak.

Instead of repeating my arguments, I will simply quote from the European Scrutiny Committee, which put the matter very clearly:

“All Parliaments legislate for the future. Laws passed by one Parliament do not contain a sunset clause at the Dissolution. The real point is whether a government can, in law, make it difficult for a future Parliament to amend or repeal the legislation it has passed; in our view it cannot. Our conclusion therefore is straightforward—that an Act of Parliament applies until it is repealed”.

Again and again there has been the proposition that somehow this type of legislation weakens Parliament, but Parliament remains central to the whole pattern of agreeing by Act of Parliament whether there should be referenda. The argument for the sunset clause is that each Parliament should be given the chance to decide whether its sovereignty has been curtailed by the Bill. We do not accept that case. As the Minister for Europe said in another place:

“The Bill does not substitute the British people for Parliament, for Parliament will continue to have a central and strengthened role”. —[Official Report, Commons, 11/7/11; col. 74.]

Parliament would have the opportunity on each occasion to approve a transfer of competence or power and to approve the holding of a referendum. In contrast this provision would actually reduce the control that Parliament would have on treaty changes and passerelles until the Government of the day decided whether to revive Part 1 of and Schedule 1 to the Bill. It would actually have the counter-effect of that, which I believe is the intention of those who put it forward. In any case, we have a system that is designed precisely to review how all Acts of Parliament are used once they are enacted. The previous Government introduced a system of post-legislative scrutiny. Well done them, because under that the Government of the day are required to publish a memorandum to Parliament on the operation of each Act of Parliament up to five years after the commencement of the Act. This is considered by relevant parliamentary committees, which can decide whether to conduct a detailed examination of that legislation. I ask again: what is the point of this additional proposed provision?

I am happy to repeat the commitment of my friend the Minister for Europe and say that this Government agree that this system is a useful tool that should be exploited and that a future Government must publish a full report on how the Bill has been used within five years of this legislation becoming law. This will result in the clarity and the reflection that colleagues in the other place rightly seek, but without arbitrarily depriving the British people of their say at the end of this Parliament.

This has now been considered by the other place, which has disagreed with your Lordships’ amendment by a very substantial majority of 89 votes. Therefore, it falls to your Lordships’ House to consider whether to insist on the amendment or accept the clear and considered view of the other place; and whether to accept, in the light of what I have said, that this is a necessary amendment or challenge to the Government’s Motion that needs go forward. I personally doubt that it need go forward and I urge your Lordships to let the Motion stand.