European Union (Amendment) Bill

My Lords, it is a great privilege to follow the noble Baroness, Lady Williams of Crosby, but, as we are at the start of a long journey on the Bill today, I should make clear at the outset that I do not share her assessment. I believe that this is a bad Bill for Britain and a bad treaty for Europe. This is not because I do not value our relationship with Europe but because I believe that this treaty takes us further in the direction of previous treaties towards a more centralised, more inward-looking and more bureaucratic Europe, rather than towards the more flexible, outward-looking Europe that we need for the 21st century. Following the powerful speech by my noble friend Lord Forsyth, I shall not dwell on the issues around a referendum. However, like him I am sad that we still have to address the fundamental question being raised of whether the treaty of Lisbon is or is not the same as the constitution in form. In my left hand, I have a copy of the constitutional treaty, published by the Government in 2004, whose introduction by the then Foreign Secretary sets out in clear terms that most of the treaty is the existing treaties reformulated, with the changes from the constitutional convention incorporated. In my right hand, I have the Government’s published consolidated treaties post-Lisbon, which makes it clear that most of it is existing treaties with the changes from the Lisbon treaty incorporated. The two texts are virtually identical; in fact, if I put them side by side, as the Government have studiously avoided doing, I can find only two articles in the constitutional treaty that have not been translated in whole or part into the Lisbon treaty’s consolidated text. One of those deals with the anthem and the flag and the other is the article—wholly unnecessary, as it turns out—asserting the primacy of European law. So these documents are the same in form and substance, and the arguments that we should treat them as different just because one treaty only set out the changes whereas the other incorporated and printed the whole text, or because one still leaves two treaties whereas the other renumbered the pages and put them in one treaty, would not stand up in a school debating society and are unworthy of this House. I move on to address the substance of the treaty. Like other noble Lords, I will draw on the work of the House of Lords committee under the patient chairmanship of the noble Lord, Lord Grenfell, of which I was privileged to be a member. Like the noble Lord, I shall draw selectively on some of the conclusions—and like him I should make it clear that the committee as a whole reached no overall conclusion either on the treaty or on any of the red lines or other issues of debate. Let me start with the extension of the EU competency in the area of freedom, security and justice, where the report notes: "““The merging of the Pillars””—" that is, the first and third pillars— "““will have the effect of bringing criminal law and policing within the new … framework. This is clearly a significant change””." It also concludes that the move to QMV in all areas of freedom, security and justice is a significant change. The UK has the right not to opt in to new measures, but we will not have a veto on amendments to existing legislation to which we are already a party. Hence the report notes: "““In some areas of criminal law and policing, a dramatic change during negotiations may permit the UK to use the emergency brake … In other cases, the UK may end up bound by a measure with which it does not fully agree; this is the nature of QMV””." If we do chose to opt out of existing areas to which we have previously signed up, we could be faced with a range of overt and covert pressures under the treaty to keep us in line, including the imposition of financial penalties. In addition, the House of Lords report notes that the increase in jurisdiction of the European Court of Justice is a significant development. It says: "““For the first time, Member States will be able to be taken to the Court for failure to implement properly EU legislation in the area of criminal law and policing””." These are significant changes to our constitutional practice and our democratic control of UK criminal justice. On foreign policy, the treaty also envisages a much increased role for the European Union, with the employment of an EU Foreign Minister, the creation of an external action service and the clear intent to adopt common EU policies wherever possible. As a result, the Government’s freedom of action will inevitably be constrained. The report notes that that need not always be by unanimity. It says: "““This new procedure allows for decisions defining an EU action or position on a proposal from the High Representative to be adopted by qualified majority voting””." Although the European Council must unanimously agree to request such a proposal, it would be remarkable if we were always completely satisfied with the proposal that emerges. In many cases, as is often the case at European Councils, we will find ourselves bound into a compromise text with which we grudgingly agree but whose presentation is in someone else’s hands. Under this treaty, once a common position has been agreed, we are duty-bound to support it. I am not sure—perhaps the noble Baroness the Leader of the House can respond to this in her summing up—where that would leave a new UK Government who might come in with a fundamentally different view of foreign policy from its predecessor. Furthermore, the report notes that at the United Nations, where the European Union has a common position, "““the UK will be required to request that the High Representative present that position””." He will be required to request. While that, as the report makes clear, does not displace the UK's right to speak and vote, in practice we must recognise that it would be very difficult for the UK then to represent a different emphasis or to decide to change its own position as a result of the debate at the United Nations. Overall, therefore, while we have obviously retained an independent foreign policy in those areas where the EU has no common position, as the House of Lords report acknowledges, our freedom will be constrained in the increasing number of areas where the EU does define a common policy. I now turn briefly to other areas. The Charter of Fundamental Rights, as we have heard, is now given legal status equivalent to the treaties. The House of Lords report notes: "““The [UK] protocol is not an opt-out from the Charter””." It continues, "““The Protocol should not lead to a different application of the Charter in the United Kingdom and Poland when compared with the rest of the Member States””." More generally, the report also notes that: "““The extension of the use of qualified majority voting (QMV) to more than 40 new areas is a significant change. Qualified majority voting becomes the default voting method in the Council of Ministers””." That is not just streamlining. One such critical area moved to QMV is decisions on energy policy, which could hardly be closer to our vital national interests, in addition to those areas I have already referred to in foreign policy and justice and home affairs. We need to look beyond these individual additions to EU powers and competences to understand the full impact of this treaty. Despite assurances from the noble Lord, Lord Hannay, under this treaty the balance of power shifts significantly from the nation states to the EU institutions. The Commission gains an increased role in both criminal justice and foreign affairs, where the high representative is a member of the Commission. The president of the Council, instead of being a rotating representative of the nation states, becomes a full-time paid EU leader, which the House of Lords report notes is a ““significant move””, and one that is likely to result in more active EU agenda. As for the European Parliament, the report notes: "““The Lisbon Treaty considerably increases the powers of the European Parliament … to the extent that the European Parliament will become co-legislator for most European laws””." That reflects the sentiment and statements in the treaty that the Union is founded no longer on nation states but on, representative democracy, where EU citizens, "““are directly represented at Union level in the European Parliament””." Finally, the House of Lords report notes that: "““The Treaty significantly expands the role of the ECJ””," including, as we have seen, its new jurisdiction in criminal justice and policing. By contrast, the role of member states in the Council of Ministers is downgraded from an intergovernmental gathering to an EU institution that, like the states in the US Senate, can express their views on most issues only through majority voting, which, as I have said, becomes the default decision-making process. The European Council moves from being the guiding voice of the nation states sitting above the European Union to become just another part of the EU's formal institutional framework and expressly subject for the first time to the jurisdiction of the European Court—something that the House of Lords report describes as ““highly significant””. It is difficult to imagine a set of proposals that are a clearer description of a constitutional shift from a Europe of nation states to a European Union which claims its own direct and independent democratic mandate from the European citizens. That is why it was originally and correctly termed, a Constitution for Europe. Noble Lords in this House may applaud that and many of the constitution’s architects on the continent certainly do. I disagree because I believe that this attempt to build a large, centralised pan-European power block is out of step with the decentralised, networked and fast moving world of the 21st century. We need a looser relationship with Europe and not one that locks us in to a central bureaucracy. But what no one should be allowed to say to the British people is that this treaty is not important or that the decision on it is not important. That is why in its passage through this House, as other noble Lords have said, whatever our views on the treaty, we must come together to insist that the Government honour their pledge to give the people of this country their say in a referendum.