European Union Bill

Lord Kerr of Kinlochard Excerpts

Wednesday 25th May 2011 Lords Chamber

In those circumstances, it seems right—and I use the word right quite deliberately—that at the beginning of the next Parliament this issue should have to be reconsidered. If the experiment has taken place and we have had these referenda on these issues, no doubt we will be in a position to judge whether we need it to continue. If there have not been any referenda, it seems to me that we probably do not need it anyway. In either of those circumstances, a sunset clause is precisely what is needed, and I support the amendments.

[Lord Kerr of Kinlochard]

I support the amendments in the name of the noble Lords, Lord Taverne and Lord Richard, and in the name of the noble Lords, Lord Liddle and Lord Armstrong. The noble Lord, Lord Armstrong, is stern and unbending and I support his Gladstonian position. I will also speak to the amendment that stands in my name and those in the name of the noble and learned Lord, Lord Howe, the noble Baroness, Lady Williams, and the noble Lord, Lord Hurd of Westwell.

When Committee stage started—it seems a very long time ago—I attempted a feeble Shakespearian flourish, but I now realise that it was completely wrong. I had the wrong play; we are in A Midsummer Night’s Dream, or rather nightmare. We are a long way remote from the real world, but there is still perhaps in our debate a role for the rude mechanicals of the Cross Bench, who have a little experience in what actually happens in Brussels.

When we were last in Committee, the noble Lord, Lord Howell of Guildford, quoted from the then head of the Council Legal Service, Jean-Claude Piris. He did so in answer to the noble Lord, Lord Davies of Stamford, who had said that the Bill,

“will be seen by our partners on the continent of Europe and in Ireland as an example of terrible British negativity about the European Union”.

The noble Lord, Lord Howell, replied:

“We have clear indications that there are no difficulties. Jean-Claude Piris, the former head of the Council's legal service in Brussels, has commented that he sees no difficulties with … the thrust of the Bill. We have checked with people around the European Union and we are not getting the picture that the noble Lord talks about”.—[Official Report, 23/5/11; col. 1647.]

The noble Lord, Lord Taverne, quoting Vernon Bogdanor, spoke of Alice in Wonderland. This is what Jean-Claude Piris said in the letter of evidence that he sent to the House of Commons Scrutiny Committee, writing in a personal capacity as he was about to retire at the time. He said that if the other member states,

“were to consider that the national legal constraints of the UK were to lead to the practical impossibility of taking certain steps within the Union which would be perceived as necessary or desirable by many or all other Member States, it could not be ruled out that the compatibility of the referendum requirements with international and EU law might become an issue. Furthermore, if, in a specific case, the requirement to hold a referendum were to result in an impasse in the future, this might lead to the UK being sidelined on certain issues. This is because it could trigger a tendency among other Member States to circumvent this situation, either by engaging in enhanced cooperation among themselves without the participation of the UK, or by concluding intergovernmental agreements outside the framework of the European Union.”

That was the personal opinion of the then counsel to the Council—the legal adviser to the Council of the European Union—on this Bill.

I do not know whom the noble Lord, Lord Howell, talks to. He says that as he goes around Europe he meets nobody with concerns about this Bill. He should get out more. When the Bill is over, I have no doubt that he will be delighted to get out more.

I do not want to exaggerate my point but very few people across the European Union are aware of the extraordinary process that is taking place here, and the reason for that is that very few people in this country are aware. So far as I know, eight days of Committee on the Bill have not earned an inch of space anywhere in the British press, and therefore there has been nothing for the foreign journalists to pick up. As you go down the Champs-Élysées—

[Lord Pearson of Rannoch]

My Lords, perhaps I may refer the noble Lord to the Quentin Letts column in the Daily Mail and to copious inches in the Daily Express.

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[Lord Kerr of Kinlochard]

I stand corrected and congratulate the noble Lord on his close reading of the Daily Mail. As you go down the Champs-Élysées, people are not saying to each other, “Do you know that the British are trying to block action under Articles 333.1 and 333.2, whereby one could have a qualified majority on the implementation of enhanced co-operation?”. No one knows what we are up to in this Parliament. No one in this country knows what we are up to. We are remote—we are in A Midsummer Night’s Dream. This is not the city of Athens; it is somewhere in the thickets of a forest outside.

Therefore, I feel that the Government’s principal argument—the noble Lord, Lord Taverne, spoke elegantly to it a moment ago—about the purpose of the Bill being to deal with mistrust and distrust is a little absurd. When these provisions are on the statute book, they will generate as little interest in the country as their passage, despite all our eloquence in this Chamber. There is no knowledge of these provisions outside and therefore no knowledge of the argument about distrust. It is possible that over time Jean-Claude Piris, counsel to the Council of the European Union, will prove to be more right in his prediction than even the noble Lord, Lord Howell of Guildford. It is possible, and it seems to me plausible, that there will be a chilling effect on UK negotiators in Brussels as a result of these provisions. We know that there are going to be no referenda in this Parliament. We know that because, as the noble Lord, Lord Taverne, reminded us, the Government have said that they are not going to agree to any of these things being covered in the Bill anyway. I do not think that that is a big deal in Brussels and I do not want to exaggerate but, over time, it could become quite a big deal.

We have created an extraordinarily rigid structure with this Bill. Flexibility will be necessary—or most people will think that. The UK negotiator will be unable to agree to propositions which are in the UK interest because they would require a referendum in this country, and the Prime Minister will say to him, “We don’t want a referendum, so you have to block it. You can’t agree. Sorry, go away”. That is likely to happen over time and the result of that might be, as predicted by Jean-Claude Piris, that the others will say, “We’re stuck. The British won’t agree so we’ll go off and do it amongst ourselves”. Some, possibly the noble Lord, Lord Pearson of Rannoch, would consider that that was a very good thing, and in some cases it is conceivable that it would be a good thing. Others might want to do things in which we might not want to take part. However, there may be a measure in which we wanted to take part but the others felt that they could not include us because we had our referendum requirement. I speak as a rude mechanical who has spent a lot of time building things in Brussels.

I add a small very rude mechanical’s point. When the noble Lord, Lord Pearson of Rannoch, elegantly argued that we had not said anything in this debate about the euro, he was not strictly accurate. I hope that there is an outstanding point in the Minister’s mind, which is the reference in Clause 6(5)(e) to the euro. That, read with Clause 5(1), seems to me to mean that we would be submitting the wrong question to an Act of Parliament and referendum. The issue would be the rate at which the UK joined the euro, not whether the UK should join the euro. It seems to me that there is a little bit of overspecification in the drafting. The noble Lord, Lord Hannay, made the big point—nobody in this Chamber, so far as I know, and no amendment on the Marshalled List argues that there should not be an Act of Parliament and a referendum on joining the euro. Mine is a rude mechanical’s point—we have overspecified the decision which would be put to our Parliament and to a referendum.

We will move into a different kind of Shakespearean play on Report. I hope that the Government will reflect on some of the points which have been registered—some of them were very mechanical points, for which I apologise, but some of them were very big political points and were eloquently put from all sides of the House. I hope that we will see some changes proposed by the Government before we come back to this. We have spent far too long in the enchanted forest of A Midsummer Night’s Dream. I wish that I were able to make the last speech in Committee, having made the first. Unfortunately, I think that I will have to cede that role to the noble Lord, Lord Liddle. I draw his attention to how Puck ends A Midsummer Night’s Dream. He states:

“If we shadows have offended,

Think but this, and all is mended,

That you have but slumber'd here …

And this weak and idle theme,

No more yielding but a dream”.

I wish that it were.

[Lord Flight]

My Lords, I apologise for not being present at the start of the debate as I had problems parking my bicycle on arriving at the House.

It seems to me that there is a perfectly fair debate to be had on what items should or should not be covered by referenda, but that there is no real case for treating this Bill as though it were in the same category as the counterterrorism legislation, and for arguing that it is suitable for a sunset clause. Once it becomes an Act—assuming it becomes an Act—it will not essentially be any different from other legislation in this country. It is, of course, perfectly straightforward for a Government to get elected on a manifesto that they will revoke this legislation, and so to do, but I do not believe that those supporting these amendments have made a proper case as to why the Bill should be treated any differently from other legislation. We have a perfectly established democratic process for removing legislation when a new Government are elected, if that is the will of the people. But the requirement would be for an incoming Government to have the will of the people to revoke this legislation. Secondly, if there were some automatic process of cancellation, a great legal hole would be left, unless the automatic sunset clause revoking the legislation were accompanied by fresh legislation at the same time to plug the many holes that need to be plugged that the Bill addresses.

The amendments are little more than an excuse to put the pro-EU cause and the anti-argument for this Government, who are quite rightly addressing the concerns of UK citizens. I sit down by making the comment that I feel uncomfortable that those who are opposed to the Bill seem to have the view that those British citizens—potentially the majority—who have become increasingly critical of the EU should be silenced in the interests of advocating the great EU cause. That is profoundly undemocratic in principle. Certainly, on this issue, a sunset clause would be wholly unsuitable.

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[Baroness Nicholson of Winterbourne]

I follow the noble Lord with further comment about the applicability of a sunset clause for this type of Bill at all. We must provide certainty for the British public, which as a former Member of the European Parliament I must say is sadly lacking for them at the moment because of the way in which European Union business has previously been dealt with by the British Parliament and Governments. The sunset clause, which would in effect kill the Bill, would take away that certainty, and I wonder whether it is an applicable mechanism for this sort of Bill.

The sunset clause was, of course, introduced by the Counter-Terrorism Bill on the basis that that Bill introduced extraordinary measures in keeping with the UK's liberal values in an emergency, but that is not the case with the European Union Bill. This is not an emergency and the Bill does not reflect a short-term measure. It is a long-term policy shared by all sides, except I think by the minority, with even the Opposition accepting that there should be a referendum for big treaty changes under the ordinary revision procedure for issues such as the euro. I am one of those who believe profoundly that in order to reconnect with the public we need more possibilities for referenda, as those outlined in Schedule 1 inform us. However, the Public Bodies Bill, which also has a sunset clause, is tasked with a specific programme for a specific time. Let me suggest that as this Bill is for the long term, this is no different from any other legislation that your Lordships’ House passes. For example, privatisation did not have a sunset clause. It was, we believe, the right thing to do to react to new circumstances.

[Lord Kerr of Kinlochard]

As the noble Baroness continues to distinguish this Bill from other Bills, would she like to distinguish it from the Fixed-term Parliaments Bill, in which subsection (4) of Clause 7 headed, “Final provisions” is almost precisely the same as the one proposed in the amendment in my name and supported by my noble friend Lord Williamson?

[Baroness Nicholson of Winterbourne]

I thank the noble Lord very much. Perhaps I may continue. The day a Government believe this Bill should be changed, they can do exactly that through the proper mechanisms; they can repeal the Acts that introduced them. However, repealing the Bill and giving discretion back to Ministers is not the answer as it is with the other Bills that I have quoted. As I recall from my time in the House of Commons, a sunset clause is traditionally used to delegate authority for a temporary period upwards to the Executive. This Bill delegates downwards, which is why I suggest that a sunset clause is not relevant for this Bill.

I recall that Parliament defines a sunset clause as a provision in a Bill that gives it an expiry date once it has passed into law. Sunset clauses are included in legislation when it is felt that Parliament should have the chance to decide on its merits again after a fixed period. This sunset clause kills the Bill at the end of this Parliament, thus destroying the whole purpose of the Bill, which is to give the British people a say at last in what is happening in their name in ever-increasing EU legislation. However, it even gives it back to Ministers and not to Parliament. This is simply out of line with Parliament’s definition of sunset clauses.

The noble Lord, Lord Kerr, has spoken quite a lot. I give way again.

[Lord Kerr of Kinlochard]

I am very grateful to the noble Baroness. Coming back to the Fixed-term Parliaments Bill, I hope she will explain why the provision for which this House voted, which is in that Bill now, is inappropriate to the Bill we are looking at today.

[Baroness Nicholson of Winterbourne]

The sunset clause is inappropriate because, as I have said, this Bill attempts to do something quite unusual with regard to EU legislation and successive British Parliaments and Governments. Traditionally, British Governments, and to a lesser extent British Parliaments, had not involved themselves in EU legislation. Your Lordships’ House is very different from the other place. I am pleased to see that the noble Lord, Lord Roper, is in his usual place. It is known in the European Union—in the European Parliament particularly—that the reports from your Lordships’ House are unique, wonderful and vastly helpful. However, the fact is that given our particular position in this House—we are not elected and primacy rests with the other place—it is the other place that has let down the British people. EU Standing Committees A and B are deficient in their grasp of what is going through under EU legislation. They have not been briefed by successive Governments, which is why I believe that these referenda potentially give the British Parliament the opportunity to grasp again the power that somehow it has let slip.

It is all too true that there is an assumption now that EU legislation has primacy over the British Parliament. That is not the case. Parliament has let slip so much EU legislation in past decades that there is now an assumption that the primacy of European Union legislation overrules the primacy of what is passed through the British Parliament. It was not until I sat in the European Parliament that I realised that other Parliaments have not behaved like this. Other Members of the European Parliament from different member states did not have that perception. In other words, I am suggesting that we have undervalued the British Parliament’s authority over all EU legislation. That is because the British Parliament, particularly in the other place, has allowed so much legislation to slip by that an assumption has arisen that somehow we no longer control it. By we, I mean British parliamentarians. Therefore, I suggest that referenda offer one window into closing this gap of communication with the British public.

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[Viscount Trenchard]

My Lords, I hesitate to intervene at this late stage in the debate, especially as I was unable to participate in the Second Reading and earlier Committee debates. However, I feel that I want very much to intervene in the debate now, and I especially felt that on Monday. The noble Lord, Lord Hannay, pointed out that no support on these Benches had been given to the Bill during the debate. I wanted to say that that was because the people who were moving amendments were those who wanted to change the Bill as it stood, whereas those of us who were silent could well have been silent because we supported the Bill as put before your Lordships’ House.

The Bill is intended to enhance transparency and accountability through greater public and parliamentary control over government decision-making and to increase the trust and engagement of the British people in the EU, which is very necessary.

The noble Lord, Lord Kerr, remarked earlier in his eloquent speech that we are fortunate to have on the Cross Benches of your Lordships’ House people who still live in the real world. I should like to ask the noble Lord where he thinks the real world is, because it seems to me that the real world for any of us is where we happen to be at any particular time. I do not have the same experience as the noble Lord of life in Brussels, but I spent one very enjoyable year there in 2006. I suspect that if I had spent a great many more years there, it is quite possible that my feelings towards the European Union’s institutions would have changed.

I have spent considerably more years in Japan, which is very different. Therefore I have seen the evolution of the European Union, and the United Kingdom’s place within it, from very different circumstances and a different country. That has led me to hold different views on our country’s bilateral relationships with other countries. I do not disagree for one moment that there are matters on which it is right to pool our powers with our European partners in order to exercise more influence. Equally, there is a great need also to draw a line in the sand. When I am in the real world outside this House, in the country or in other countries, I find that people want to know who is making their laws. I think that they feel cheated that there was no referendum on the Lisbon treaty. I am not sure that we should be proud as a Parliament to have provided a referendum only on AV and not on the Lisbon treaty, for it seems to me that the one, the Lisbon treaty, is much more important than the other.

Several noble Lords have suggested that we are changing into a plebiscitary democracy. There is a danger that we could have too many referendums; I am not in favour of having a great number of them. However, in matters which fundamentally change the way in which laws are made in this country, and where this Parliament decides to hand over, to all intents and purposes permanently, powers to the European Union, I think that most people think that they should have a say. So they definitely feel cheated.

I have enormous respect for my noble and learned friend Lord Howe. I listened with great respect to his eloquent speech in which he said that it would be better if we all concentrated on making the European project work rather than argued about this type of legislation. I remember voting in the referendum in 1975 to endorse the decision to join the European Community, as it then was. During many years in Japan, I extolled the virtues of the single market and tried to persuade Japanese companies to list their shares on the London Stock Exchange because of its access to it. I tried to persuade companies to come and invest in this country because it would give them access to a single market of 300 million people or whatever it was. However, at that time it was not envisaged that the European Union would extend itself into so many areas of legislation affecting our national life. A great deal was said about subsidiarity: in other words, where it is necessary to combine at European Union level, we should freely do so, but where it is possible and appropriate that national Parliaments should continue to decide things in the interests of their citizens who have elected representatives to those Parliaments, subsidiarity should apply. We hear very little about subsidiarity today.

The noble Lord, Lord Taverne, made a very eloquent speech in moving his amendment. He said that yesterday he heard that the City was very concerned about European financial regulations, and that therefore we should be very careful because a Bill such as this would reduce our ability to participate properly in formulating appropriate financial regulations. I feel that the noble Lord is seeing this from the wrong angle. It is increasingly difficult for our own regulators, who have far greater experience of financial markets, to make any regulations at all. The chief executive of the FSA told me fully a year ago that he can make no regulation now that is not agreed by the other 27 members, many of whom have very little experience in financial markets. Perhaps many of the other 27 feel that London has too large a share and would like to see some of that share go to other financial markets in the European Union. It is very important that we continue to defend the City and argue for the maximum say in these matters for our national regulators.

[Lord Kerr of Kinlochard]

Has the noble Viscount noticed, as I have with approval, Mr Lidington’s plan to make a speech today at the Mansion House saying that he will be relentless in dispelling the myth of Anglo-Saxon isolationism? This seems to me to be an excellent thing to do. Does he feel that this Bill in any way helps to remove from the continent the myth of Anglo-Saxon isolationism, and will he address the question of sunset clauses?

[Viscount Trenchard]

I thank the noble Lord for his intervention. Like him, I welcome the speech to be made by Mr Lidington. I do not wish the United Kingdom to be isolated in Europe—not for one minute. I believe that the Bill should help the United Kingdom to participate in decision-making in the European Union in matters where it is appropriate that we should do things together. It is necessary that we should make it clear where this country and this Parliament stand. We need this in order to define again the relationship of this country with the European Union. The people do not want to see more powers transferred to Brussels without their agreement.