European Union (Amendment) Bill

My Lords, when the so-called European Union constitutional treaty was rejected by the people of France and the Netherlands three years ago, the response of the member Governments was to announce a pause for reflection. It has to be said that the reflection was not particularly profound. The predictable conclusion that they reached was that the people of Europe were wrong and that they should simply be presented with the same treaty with a different form and under a different name. Nevertheless, the pause has served a useful purpose, for it has demonstrated that the argument that the treaty was necessary to cope with EU enlargement was without foundation. It is now four years since the welcome and very successful enlargement of the European Union to embrace the countries of central Europe. The treaty has been shown to be completely unnecessary, a finding recently endorsed in an important study by Professor Wallace, the distinguished wife of the noble Lord, Lord Wallace of Saltaire, whom I am sorry to see is not in his place today. I therefore hope that this reflection may be of some assistance to those noble Lords who, when we come at a later stage to the important question of the referendum on the treaty, will have to make an agonising choice between the value they attach to the treaty and the value they attach to political integrity. This is not the time to go in any detail into the question of a referendum that constitutional propriety and—I repeat—political integrity both require, although I must say that I reject the argument of my noble and learned friend Lord Howe that constitutional innovation should not be put to the people in a referendum. At this stage, I will make just two points. First, the least we can do is invoke la fraternité franco-anglaise, which President Sarkozy so charmingly called for when he spoke to us last week. In the treaty’s first coming it was the people of France who were given the opportunity to reject it, and in its second coming it is only right that we should take the baton from France and give the British people the same opportunity. Secondly, if the British people were to take that opportunity—I have no idea whether or not they would—it would be an excellent day for Europe. Let me say why. Unlike many of my colleagues on these Benches, I have long believed that the European Union badly needs a constitution, particularly to set out very clearly, as does the constitution of the United States, which matters are within the competence of the Union and which remain within the competence of the member states. There is obviously room for disagreement as to precisely where the line should be drawn. For my part, I very much agree with the conclusion of the European Union Committee of this House a couple of years ago that the common agricultural policy should go and that the responsibility for farm support, to the extent that it exists at all, should be repatriated to the individual member states. Whether or not that is so, it is essential that that clear line is drawn. That does not mean that any such constitution should be incapable of amendment, but again, as in the case of the United States constitution, amendment needs to be made a deliberately difficult process. Only in this way can the European Union achieve the stability which it so badly needs and for which the peoples of Europe, and not just of this country, yearn. We have before us today, as we had the first time around, a constitutional treaty in the sense that it makes important constitutional changes, but it is not a constitution; it is its very antithesis—an anti-constitution. In an interesting book of essays, which was published only the other day with a foreword by my noble and learned friend Lord Howe, Dr Henry Kissinger wrote these rather tired words: "““In Europe the nation-state is in the process of being diminished. The European Union is supposed to replace it; but the reality is that Europe is in transition between a past that it has rejected and a future which it has not yet reached””." This profound misunderstanding lies at the very heart of the present treaty, the main purpose of which is to speed the transition to which Dr Kissinger referred—a transition to an unknown destination of which the people of Europe are rightly deeply suspicious. Far from entrenching the competence of the Union, and thus the competence of the member states, and erecting proper constitutional hurdles in any future rearrangement, the most important innovation of the present treaty, which needless to say was copied verbatim from the treaty that had earlier bit the dust, is a mechanism for facilitating future constitutional change by bypassing the normal processes of treaty amendment. What is envisaged is largely a one-way street: moving matters from the competence of the member states to the competence of the Union, and from the requirement of unanimity to decision by majority vote. As the House will be aware, I refer of course to the notorious passerelle clauses, which the Government vainly objected to when they were first proposed but now untruthfully claim are nothing new. It is true that there has always been a very limited passerelle clause in the treaty—Article 235 of the original Rome treaty and Article 308 of the treaty currently in force—but this was strictly constrained by the need for it to be demonstrated that the transfer was necessary for the operation of the Common Market—dear old-fashioned words—and was eminently justiciable, as at least one judgment of the European Court has demonstrated. It also applied to only the European Economic Community and not to the European Union as such, which was explicit. By contrast, the new-style passerelle clauses in effect apply to whatever the European Council at any point in time decides it wants to do, with defence and foreign policy alone being excluded. This is a massive change. Of course, if there had not been the intention to make this change, the new clauses would never have been introduced. That is what this treaty is about, which is why it is wholly objectionable. On a number of occasions recently, my noble and learned friend Lord Howe has eloquently made the case that what we need in this country is not the Maoist-style permanent revolution to which the present Government appear to be addicted, but the essential stability provided by a firm constitutional framework. Precisely the same applies at the European level—indeed, it would be bizarre and self-contradictory were it not to be so. I believe that we can best serve the peoples of Europe by enabling the people of Britain to reject this misguided treaty, just as our good friends and neighbours did three years ago, and by calling on our partners in Europe explicitly—I stress the word ““explicitly””—to reject the dream of the United States of Europe, which the peoples of Europe do not want; nor would they feel any sense of allegiance to it were it to arise. We can then set about drawing up a true European constitution to provide the firm constitutional framework that alone can end the debilitating mutual distrust which at present exists between the Union and the peoples of Europe, which this treaty before us manifestly fails to do.