European Union Bill

Lord Williamson of Horton Excerpts

Tuesday 17th May 2011 Lords Chamber

[Lord Goodhart]

My Lords, we have now moved on from Clause 6 to Schedule 1. I am speaking to Amendments 45 and 47. I selected them because they are related to law and I am, of course, a lawyer.

Amendment 45 would exclude TEU Article 19(2) from the list of articles where a referendum would be required to approve a treaty which removed the need for unanimity, consensus or common accord with respect to that article. Amendment 47 seeks to exclude TFEU Articles 82(2)(d), 83(1), 86(1), 86(4), 87(3) and 89 from a similar list. None of these articles is remotely appropriate for a referendum.

TEU Article 19(2) is concerned with judges and advocates-general of the European Court of Justice. This subject is miles outside the interests or knowledge of anyone other than a few legal specialists.

TFEU Article 82 deals with the principle of mutual recognition of judgments, with judicial and police co-operation in criminal matters having a cross-border dimension. TFEU Article 83 deals with the establishment of minimum rules concerning the definition of criminal offences in the field of particularly serious crimes with a cross-border dimension. TFEU Article 86 deals with the EPPO, which I discussed in a previous debate and do not need to repeat. TFEU Article 87 deals with police co-operation between states involving the prevention, detection and investigation of criminal offences. TFEU Article 89 concerns conditions under which competent authorities subject to Articles 82 and 87 may operate in agreement with authorities of another member state. These involve cross-border agreements which are a matter of specialist information and would have a minimal effect on any citizen of the United Kingdom.

All these articles are already operative and require unanimity, consensus or common accord. There is nothing in these articles which provides for anything other than unanimity. As I read it, Schedule 1 would apply if—but only if—an amendment to the TEU or the TFEU is in future introduced to allow QMV or other modifications of unanimity. These amendments apply only to judicial and police systems and would have virtually no effect on the United Kingdom judicial or police system.

The circumstances in which a Government might wish to agree to removing the need for unanimity are entirely uncertain and unpredictable. It might be patently in the interests of the United Kingdom to switch to QMV so as to block the future misbehaviour of some other member country. The alteration involved might be trivial. Would it not be better to leave it to the Government of the day to decide whether or not to call a referendum?

Referendums are expensive and time consuming. They should be used only for matters which are of real interest and importance to the community which is called upon to vote. None of the provisions that these two amendments would delete can be said to fall into that category. I beg to move.

[Lord Williamson of Horton]

My Lords, I have waited rather a long time to come into this debate. Having spent 16 years extremely closely involved in the European Union, more so than any other Member of the House, I thought I might come in briefly on this point in particular. We have had a presentation by the noble Lord, Lord Goodhart, which is quite specific to the proposal—a unique experience in some days of this Committee—and therefore we can concentrate on the point specifically, and that is what I would like to do.

We have now come to Schedule 1. The amendments to Schedule 1, which are all grouped together, are what I might call an à la carte menu, in that they all refer to separate issues but are grouped together. The amendments, including the one that has just been moved, would affect Schedule 1 quite substantially. They would have quite different effects but, they would reduce the extremely long list of 40 items in Schedule 1 which would be subject to the referendum block. If we examine them—if these referendums ever happened, which I do not think will be the case—there could be well over 40 referendums as a result of this schedule because some of the points cover various different issues within one article. Let us take it that Schedule 1 provides for 40 potential referendums dealing with issues such as the appointment of judges and other European Court of Justice personnel.

The whole of Part 2 of Schedule 1 would be deleted by Amendment 46. Specified issues relating to criminal procedure are the subject of Amendment 47. We also have the reverse, in that we have a proposal to add to the list in Schedule 1. Of course, we shall then come to whether Schedule 1 stands part. Therefore, the whole of Schedule 1 is in issue here.

The specific points under discussion require examination. This Chamber is the type of body that should look at these things in detail, and we should do that rather than just discuss broad issues about whether we are for or against the European Union. We should look at the proposals in front of us. The possibilities presented here should cause us to reflect on whether it is right to have a single mechanism—that is, a referendum—as the method of dealing with any possible changes in all the articles that are referred to in Schedule 1.

I have intervened only once to pose a question to the Minister. I do not think he actually replied but he is reflecting on it, no doubt. I will put the question again. Will the Minister consider, between now and Report, whether there are any items in Schedule 1 which could be removed from it and treated in the traditional manner in which we deal with issues in our system, namely by an Act of Parliament? We will come on later to articles where there are decisions to move by Act of Parliament, to which the Minister has already referred. It is our duty as a revising Chamber to decide whether all the items in Schedule 1 should remain there or whether some of them could be dealt with, as was recommended by the noble Lord, Lord Goodhart, by the traditional method. That is an issue which should not just be put aside but should be reflected upon and referred to again on Report to see whether any changes should be made there.

I have one other point. Irrespective of the disagreements that we have seen demonstrated in this Committee about whether we are for the membership of the Union or wish to leave, or at least wish to have a public opinion on that point, we need to look at these quite specific points. When you look at the scale of this schedule, we are taking what I think is really a step change in the way in which we deal with issues by referendum or by parliamentary discussion and parliamentary Act. This is a really enormous change. It goes beyond the scope of this Bill, in my view. To tell the British public that we are presenting and perhaps passing a Bill which has the potential to give rise to 40 or 50 referendums on issues which a large number of people think are not very important is in fact quite an important issue.

I am sure that in future years people will say, “Well, we’ve moved over quite a bit towards a system of operating by referendum, so why do we not have referenda on other important things that involve our resources going outside the country?”. A good example would be international aid, which would be quite an interesting choice of the sort of issue that is being dealt with in the Government’s proposal in this Bill. We could have one on immigration or quite a lot of other things. In my view, there will be pressure in future years for more referenda on many of these issues because, by taking this Bill through, we will have accepted that we are abandoning the system of decision by Acts of Parliament on a large number of issues. We are accepting that and changing very basically how we do things. We may think that we are just dealing with this Bill; in my view, we are dealing not just with this Bill but with an important precedent for the use of referenda elsewhere.

I would like to make that point because it is customary in the Committee stage of this Bill to make points that go rather wider than the immediate issues. I thought I should like to have my chance to do that before we come to the seventh, or possibly eighth day, of Committee. I welcome what the noble Lord, Lord Goodhart, said on the specific amendment.

[Lord Flight]

My Lords, I congratulate the noble Lord, Lord Williamson, on his summing up of Schedule 1 from where he stands. As noble Lords will be aware, there are very much opposing amendments within the amendments that have been grouped together for Schedule 1. I have tabled Amendment 47A, which is really at the other side of the table from Amendments 45, 46 and 47, which I do not support.

Amendments 45 and 47 seek to remove JHA vetoes, including on police co-operation and the EPP and the veto on the appointment of judges, which I would argue are precisely the type of treaty changes that would extend competence from the UK to the EU in sensitive areas and which actually warrant a referendum. Amendment 46 removes all vetoes in TFEU from the referendum lock covering sensitive areas such as social security, social policy, employment policy, justice, home affairs and some tax and defence issues.

Amendment 47A, to which I am speaking, raises a further area of potential transfer of powers from the UK to the EU and proposes the requirement for a referendum which has not been included in the Bill. This is really an illustration that the Bill has not, as some have argued, covered every conceivable territory of transfer of powers but aims to pitch the requirement for a referendum on what the Government perceive as major red line areas.

As noble Lords will be aware, few aspects of trade agreements are now subject to unanimity post-Lisbon. The norm is now a majority. Amendment 47A would subject to a referendum an amending treaty or Article 48(7) TEU ratchet decision, which abolished the veto over negotiation and conclusion of EU trade agreements with non-EU countries and international organisations in the three main areas that were exemptions in Lisbon and covered sensitive issues and thus remained subject to unanimity. First there are the agreements which cover trade in services, the commercial aspects of intellectual property or foreign direct investment, where the agreements include provisions for which unanimity would be required for the adoption of equivalent internal EU rules. That is the most important of the three. Secondly, there are the agreements covering trade in cultural or audiovisual services that,

“risk prejudicing the Union’s cultural and linguistic diversity”.

Thirdly, there are agreements covering trade and social, education or health services that risk seriously disrupting the national organisation of such services and prejudicing the responsibility of member states to deliver them.

EU international trade agreements are binding on member states. The removal of the national veto in some or all of these areas would represent a transfer of power from the UK to the EU in politically sensitive and economically important territories.