European Union Bill

Lord Triesman Excerpts

Monday 9th May 2011 Lords Chamber

[Lord Faulks]

My Lords, I rise to comment on the European public prosecutor, the subject of an amendment by my noble friend Lord Goodhart who is not in his place. The potential establishment of the European public prosecutor finds its origins in concerns about budgetary fraud and the improper diversion of grants and aids. The purpose is to improve co-operation and to co-ordinate legal action among member states. It would potentially involve the establishment of a uniform code of criminal offences of fraud against the EC budget applicable in all member states and a uniform set of procedural rules applicable in investigations. Together that would constitute a so-called corpus juris, which would be enforced by the European public prosecutor’s office. I regard this as a significant potential change as a lawyer, but also not as a lawyer.

It seems that the rationale behind the potential establishment of the EPPO ought on the face of it to attract the support of the United Kingdom. Nevertheless, it would amount to a substantial change in criminal jurisdiction. The idea of national prosecutors on secondment from the EPPO in the UK is a significant alteration to our system, which provides that it is for the Crown to prosecute criminal offences. Once established, there would inevitably be steps taken to introduce rules which might not sit easily with our common law systems.

Article 86 provides that an EPP,

“shall exercise the functions of prosecutor in the competent courts of the Member States”.

This means that we would give up control of a fundamental part of our judicial system; namely, the decision on who can be prosecuted for what and, equally important, the decision not to prosecute in some circumstances. It is now the province of the CPS. The EPP will initially be concerned with only crimes affecting the financial interests of the union, although that definition is likely to prove particularly elusive. However, by a passerelle in the treaty, the powers of the EPP can be extended to cover any serious crime with a cross-border dimension, which gives it a potentially very wide remit. One has to think only of the problems with the European arrest warrant, to which my noble friend Lord Lamont referred, and the definition of serious crimes.

The creation of an EPP has not met with much enthusiasm from our friends on the other side of the House. When the matter was discussed at length in 2002 and 2003, Justice said it thought that a European court of criminal justice would have to be established. The Law Society of England and Wales and the Law Society of Scotland did not think a case had been made out for it. The European Union Committee of your Lordships’ House concluded that a European public prosecutor was not a realistic and practical way forward, stating:

“The benefits of creating another body and in particular an EPP, whose existence and processes could cut across national criminal laws and procedure and which might not be accountable to democratically elected representatives, have yet to be clearly and convincingly demonstrated”.

While even the most ardent Eurosceptic would support all reasonable steps to improve the detection and punishment of fraud in relation to grants and aids, surely this can be better achieved by co-operation between member states in the sharing of information and evidence, and access to information, rather than by the creation of a supranational prosecuting body.

It is suggested that there should be harmonisation of criminal procedures if there is to be an EPP office. The problems with harmonising procedures have been confronted by the courts in this country in the context of the ECHR. For example, Articles 5 and 6 of the convention have had to be interpreted by the courts as to whether they respect or are in total harmony with the right to a fair trial and the right to protect suspects. The courts have had considerable difficulty in the attempt to try to harmonise systems with different origins. It is not impossible that there could be a real conflict between the CPS and its view of what is within its province and the national prosecutor for the European public prosecutor trying to do the same thing.

If a future Government want us to join in with the establishment of a new EPP office, I suggest that the case should be made to Parliament and to the British people. It may not be their everyday obsession, but they should and can be educated, and not just by the Daily Express, about the question of a European public prosecutor. It is an important matter that goes to the fundamentals of justice. This amendment seeks to take away the safeguards that are fundamental to the Bill and to the philosophy underlying it.

[Lord Triesman]

My Lords, we on this Bench have a great deal of sympathy with the noble Lords, Lord Kerr and Lord Hannay, and much of what I say will probably reflect some of the arguments they have made. Like many other noble Lords, I have found this grouping about as unhelpful as it could possibly be. It mixes together propositions that would reduce the scope for referenda, propositions that would increase the scope for referenda, and does not deal with any of the principles that might guide a move in either direction. So, as briefly as I can, let me summarise what I think the amendments we are discussing actually are. In the midst of all the Second Reading speeches we have heard, we probably ought to try to focus on the amendments.

The first amendments, from Amendment 30 onwards, which the mover of the amendment did address, discuss the situations under which a referendum and Act are required and seek to limit the issue of whether the UK should adopt the euro as its currency. That is to some extent elaborated in further amendments. From Amendment 32 onwards we see amendments that would remove the requirement for a referendum and an Act on the list of Clause 6 decisions and change them so that they would simply require an Act of Parliament. That is a proposition where this Front Bench also has an amendment, and with which I strongly agree.

Indeed, in some of the discussions, including the one just introduced by the noble Lord, Lord Faulks, I have found it hard to understand the rationale for the proposition that has been made at all. In almost every area that has been described, the Government would plainly have the capacity to say no and to insist on unanimity. If we wished to reject a proposal to change our judicial system, and I can see perfectly well why we should argue that that might be the case, we should—to paraphrase the wife of a recent American president—just say no. It is not hard; it is not a complicated piece of electoral practice. Just say no. There are a number of areas where it is perfectly possible to do so.

[Lord Waddington]

Does not the noble Lord appreciate that there is a very strong feeling in the country that, very often, the Government have not said no and have allowed the transference of power when there was no interest whatever to the people of the country? The most obvious example was the previous Government giving up half the rebate. What conceivable benefit did the people of this country get from that surrender, when it was given on the promise of a reform of the CAP which never took place?

[Lord Triesman]

I appreciate the point that the noble Lord, Lord Waddington, makes, but that was not a surrender of any power or competence. It might be regarded as the wrong judgment to have made about national assets, but it was nothing to do with a power or a competence. It may be felt that past Governments have acceded too willingly to arrangements that they did not like—that point was made very early in the debate this evening—but in almost every one of these areas it is perfectly possible, should this Government wish, simply to say no. They can achieve, without large rafts of legislation, the same result with a word of no more than two letters.

Amendment 40 and subsequent amendments would delete various decisions which would require both an Act and a referendum before a Minister could vote in favour of them. As a result of them, there would be no decisions which required both mechanisms. Our Amendment 40 would delete a number of the paragraphs from Clause 6(5) along with those that others have identified.

We completely agree with the proposition that a referendum would be required in the case of the euro, but we have also previously mentioned other major constitutional reforms as a second possible decision area requiring a referendum. I shall not speak to the amendments in the next group, Amendments 39A and 39B, other than to mention that in them we identify the way in which those issues might be selected as issues for a referendum. It is not a hollow premise; we are testing out ways in which, apart from the euro, other major constitutional changes might also be considered.

We agree entirely with the case for holding a referendum over the euro and we also believe that there are significant constitutional issues—although we know as a result of an earlier debate that they will not include accession of other countries—which might attract a referendum. Indeed, your Lordships’ committee was also clear that this could be appropriate in a number of circumstances. I immediately recognise that somebody will say, “Well, how is it we determine what should count as significant? What will that word mean when the decision is taken?” Looking at the Bill, the mechanism which is currently envisaged seems to me to be wholly inadequate. It has fault lines built into it to the extent that I believe that it will not work. I know that the noble Lord, Lord Howell, and I have not agreed about this; I fear, with the greatest of respect to him, that we will not agree about it this evening. Even as alumni of the same college, we will not find that we achieve agreement this evening, because the decisions which would so limit the role of Parliament extend so widely through this clause that it is very easy to see, in the contemporary political circumstances, how they would give rise to a continuous pattern of dissent which I do not think would make the British people feel any more comfortable that their view was being taken seriously or even sought, as has been suggested.

I make this point because it was clear in the intervention, for example, of the noble Lord, Lord Blackwell, who is not in his place. It was made equally clear by the noble Lord, Lord Pearson, and other noble Lords on our previous day in Committee. Their objections to the development of the European Union have been so profound and so marked that almost any opportunity would give rise to triggering the whole sequence that is contained in the Bill—judicial review at the very least.

In this Bill we have the potential to make sure that widespread and protracted campaigning will take place on every issue, not because a practical issue is always involved but because that is the way in which it is possible to organise resistance to the change. It may be that the change merits resistance. I am not arguing that that will never be the case, but it is simply an armoury of tactical approaches that become available for anybody who wants to slow down or block any kind of change at all. If I were of the same mind as some of those noble Lords, I would say “fair enough”. Give me those tactical options and I would probably choose to use them, and of course they will be used in that way.

The practical route seems to be where a degree of independence is possible in determining what is a significant issue so that those issues can be put through the whole process, including a referendum. In Amendments 39A and 39B, we canvassed those possibilities—either a Joint Committee of both Houses or an independent review commission. We would then begin to reach some kind of reality about what it is sensible to do or not to do outside the remit of Parliament itself.

I have listened intently to all that has been said about the role of Parliament as contrasted with the role that might be taken in the conduct of referendums and I find myself in agreement essentially with the proposition of the noble Lord, Lord Dykes, about the diminution of the role of Parliament. I will come back to the point about reconnection with the electorate because it is important. However, as the noble Lord, Lord Kerr, said in his opening speech, we will see changes taking place or being suggested in small amounts and pretty much continuously as adjustments of this variable architecture become possible. I acknowledge that that is what many people have objected to.

Parliament, apparently, would gain the confidence of the electorate if it ceased to do the job that it had been elected to do. How that will achieve greater confidence in Parliament completely bemuses me. I have to acknowledge that. There may be many criticisms of Parliament and parliamentarians, but the one criticism that I doubt we will hear anywhere is that people believe that we should give up doing the job that we are expected to do and franchise it to somebody else.

[Lord Waddington]

Does not the noble Lord agree that Members of Parliament are elected to exercise the powers that they have inherited, not to give away those powers in perpetuity?

[Lord Triesman]

My Lords, I broadly do agree, but that does not alter the general proposition that MPs are expected to take a dynamic and full political role in determining the outcomes of debates in these areas. Whether the determination goes in the direction of giving away no more powers or giving away more powers, that is the job of a sovereign Parliament and people working in a sovereign Parliament.

[Lord Radice]

Does my noble friend think it is because they do not really trust themselves to be parliamentarians? They want to bind themselves—it is the Odysseus complex, or whatever it is—because they do not really trust themselves. Does he think that that could be what it is all about?

[Lord Triesman]

My Lords, that may be one explanation. The other may well be that they do not have the courage to do it on all occasions and they are afraid of the kicking that they will get from much of the media if they actually fight the case out. That is very much more likely to happen, I am afraid.

[Lord Flight]

I think it was one of the noble Lord’s colleagues who made the point that it was the Wilson Government who first used the vehicle of the referendum because they were unable to take the decision themselves. I just make the point that as a young person who participated in it at that time I thought that it was absolutely correct. The fact that it may have been born of weak political circumstances was irrelevant. I grew up thinking that it was a crucial constitutional matter and the sort of issue that ordinary people should have a chance to have a direct say in.

[Lord Triesman]

I could not agree more with the noble Lord, Lord Flight. I took part in that referendum as a young activist in the Labour Party who believed strongly that we should retain our relationship with Europe. Many of my colleagues were not only in disagreement with me but in pretty hostile disagreement with me. The thing that I remember most about that, apart from the dissent that it opened up—our problem, our party—was that it was a fundamental and critical constitutional issue for the United Kingdom and exactly the sort of thing that I would have believed would be defined as significant in the sense that I have tried to present to your Lordships' House this evening.

[Lord Tomlinson]

There is an important further point to be made. This big, important constitutional issue was devised by those who opposed our membership of the European Union in order to be able to vent all their feelings. It was going to resolve the question. Was it not the fact that the same people who lost in the referendum came back within a few years trying to get a different result?

[Lord Triesman]

My Lords, it is of course entirely true. That is the other conclusion that one should draw from some referenda—that whatever the decision of the British people taken in a sovereign way, it does not stop anybody from coming back on future occasions.

[Lord Flight]

My Lords—

[Lord Triesman]

I should really try to make some progress, if I may.

[Lord Stoddart of Swindon]

My Lords—

[Lord Triesman]

As it is you, David, how could I refuse?

[Lord Stoddart of Swindon]

I was one of those who was never in favour of joining the common market and opposed it during the referendum. In relation to the intervention from the noble Lord, Lord Tomlinson, the reason why there has been continuous opposition is that the story has changed. As the European Union has become more powerful, the greater the resistance has been from those who originally opposed it and, indeed, a hell of a lot more who now oppose it.

[Lord Triesman]

I suspect that the noble Lord has a slightly different experience of political life to mine, if that is the conclusion that he draws. My conclusion is that you can fight either side in a referendum and find that within a short period you did not like the result, whether things have changed or not, and the opportunity to fight it again will occur. It may very well be, for example, that some of those people who thought that the proposal to change the electoral system should not have been defeated as heavily as it fortunately was last Thursday will come back and conclude that they should have another go on another occasion. I shall not be wholly surprised if they decide that that is what they are going to do, even at the cost of having the experience repeated.

The point about reconnecting with the electorate is very critical. The electorate is dismayed with Parliament and parliamentarians on occasions, for a raft of reasons, and I shall not bore your Lordships by going through all those reasons in the recent past. As I said earlier, I do not think that a feeling of greater warmth towards parliamentarians will be achieved by parliamentarians giving up work in some of the areas that would be regarded as being the nitty gritty, not the big constitutional issues at all. I have looked through the list in Clause 6(5)—paragraphs (c), (d), (f), (g) and (h). I mention those because I am an inveterate campaigner on behalf of all sorts of causes, including those of the party I have the privilege to represent. I have thought hard about having any one of those paragraphs, let alone any combination of them, about how the campaign on them would be fought and what the doorstep would be like as you went around trying to do that kind of political work. It is not because of the ignorance or foolishness of the electorate; that is not the reason at all. Yet there is an expectation that many of those issues will have so much fine-grained detail within them that the electorate expects someone to have done a lot of this work, especially if they have elected those people to come here and do it. In our case, we are not elected but they nonetheless have a healthy respect for the work that this House can do because of the knowledge and expertise that we know is in it.

I suspect that, on most of those issues, you would get far greater traction on the doorstep by discussing the Eurovision Song Contest than you would ever get by a serious attempt to discuss some of these issues in detail. As most noble Lords who have campaigned in politics will know, I know that the kinds of discussions you have on the doorstep are real ones: about wider economic issues and a wide variety of issues. However, it is not typically the case that people want to get into a large number of sub-clauses under the arrangements of Article 312(2) of the European constitution. In fact, to my dismay, I have never had that raised with me anywhere. I look forward to the occasion when it might be.

[Lord Pearson of Rannoch]

My Lords—

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[Lord Pearson of Rannoch]

Including myself? That is very generous. The mistake is in taking the line, “Really, the people won’t be interested in this. They shouldn’t be troubled with this as they won’t understand it”. Yet if you take almost any referendum on anything to do with the European public prosecutor's office, that will be of considerable interest to the British people. They do not like it and do not want it in any form whatever. The turnout on the most supremely boring of any imaginable subject—the recent AV referendum—was 43 per cent, which really surprised people. I have to put it to the noble Lord that the British people may not only be fed up with their political class but be beginning to have doubt in our system of representative parliamentary democracy. They may want a much greater say on matters in future, like the Swiss have, for example. What is wrong with that system to reconnect the people? That is the system to reconnect them and not, I am afraid, the approach of the noble Lord.

[Lord Triesman]

It is terribly tempting to go into experiences of Swiss referenda in the cantons. Sadly for the House, I have some experience of them. That is what tells me that I should not retell it here because it is not exactly what the noble Lord, Lord Pearson, thinks it might be. I hope that the House is not misunderstanding my point, which is not that people are unable to grasp complex ideas or are uninterested in them. It is that, in general, I believe they have a sentiment which suggests that the really critical things should be put before them but that there is also a responsibility on parliamentarians to do a high level of detailed work and to get some of that work done.

[Lord Lamont of Lerwick]

The noble Lord says that he has never been asked on the doorstep about Article 312(2). Of course not, but if he called it the European budget people would understand exactly what he was talking about. Is it not the case that subsection (5) refers to all these different provisions in the TFEU by their complicated numbers but they actually come down to about five or six simple areas that are perfectly comprehensible, like a European army, a public prosecutor and our borders? If the noble Lord thinks that it is appropriate to have a referendum on a complicated issue like the single currency, why can we not have one on the European army?

[Lord Triesman]

That may well be one of the substantive issues that people might concede was necessary, but it is also true—and I was grateful to the noble Lord, Lord Ahmad, when he made the point about the interest that we rightly take in the defence of this country—that we already undertake a great deal of what we do in the defence of this country inside alliances about which the British people are not asked at all other than in general elections. They are certainly asked in the context of whether we are willing to sustain an independent nuclear deterrent—another issue that had ramifications inside the Labour Party, I readily acknowledge—

[Baroness Nicholson of Winterbourne]

I—

[Lord Triesman]

Let me try to finish my sentence. Generally speaking, we have undertaken our defence, either in NATO or in NATO plus one or two others, often under the command of Americans or of others, quite frequently these days with people drawn from the Nordic countries in military command. We have developed alliances, I should add, often in circumstances that are stressful and rapidly moving, when UN decisions have required it and when there have been potential massive attacks on civilians. In those sorts of circumstances and against the economic background in which we are all living at the moment, I did not take huge umbrage when the Prime Minister, Mr Cameron, suggested that the United Kingdom and France might co-operate on the use of aircraft carriers. I did not think that that was a terrible threat to the UK’s security.

[Baroness Nicholson of Winterbourne]

Does the noble Lord agree, when he makes a comparison between the United Kingdom exercising a great deal of authority inside other alliances, that there is a bit of a difference between, say, NATO or the UN and the European Union? None of the other alliances of which we are an important member has the acquis communautaire, and none therefore binds us so tightly into legal provisions that we accept and implement. It is therefore a different story with the EU, and that is what the Bill addresses.

--- Later in debate ---

[Lord Stoddart of Swindon]

Order. You cannot intervene on an intervention.

[Lord Triesman]

I have a feeling that I am going to give way instantly.

[Lord Kerr of Kinlochard]

I cannot let the noble Baroness get away with that. The North Atlantic treaty says that when we go to war, our forces will be under foreign command. The supreme commander is an American general. That is fact. The Western European Union treaty, the revised Brussels treaty, says that when any of the parties to the treaty is attacked, we are all at war. These are huge transfers of sovereignty that were done, of course, without a referendum—quite rightly.

The noble Lord, Lord Lamont, talks about a European army but that is not what the treaty says. It might in the end be what someone comes up with, but the treaty talks about a European defence force; the noble Baroness, Lady Nicholson, correctly read out the treaty passage. It seems almost inconceivable to me, though I would like it very much if it were true, that non-aligned and neutral countries—the Irish, the Austrians, the Swedes, the Finns—would wish to get into any kind of binding defence arrangement remotely like the ones that we are already a member of, the Western European Union and NATO. We are dealing with a very remote contingency here. It would be a momentous national decision for us.

[Lord Triesman]

My Lords, that makes the point that I wished to make about the character of the alliances, even in an area that is as sensitive for us as defence. I suspect that most people would conclude that our membership of those alliances has been absolutely fundamental to the security of our country and would not wish to see them shaken. Were there to be some absolutely massive change in the architecture of defence, it might be so substantive as to require a mechanism that is contained in an amendment and has been in past undertakings that we have made. However, it would be a fairly extraordinary event that looked as though it were even more significant than the arrangements that we have under the provisions of the NATO treaty.

[Lord Pearson of Rannoch]

Surely the noble Lord must agree that, as the noble Baroness, Lady Nicholson, said, these other organisations do not make our law. We can leave them tomorrow if we want, with far greater ease than we can leave the European Union. The EU makes our law, which is a difference. We would be in a very different position with an EU army from the one we are in with NATO.

[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.