European Union (Amendment) Bill

My Lords, I should declare an interest as chairman of Open Europe, which from time to time has submitted evidence to Parliament on European affairs. The Government say that the constitutional concept has been abandoned with the Lisbon treaty. It is an impressive phrase, but I am unable to attach much meaning to it, as almost everyone who has studied the treaty has concluded that in substance it is the same as the constitution. The authors of the constitution, Giscard and Giuliano Amato, have both been astonishingly frank: they have told us in terms that the treaty’s unreadability is nothing more than a device to disguise the identity of the two documents. The Government’s fallback argument is that our ““red lines”” make the treaty different for us, but that does not stand up to scrutiny either. Those safeguards are little changed from the ones that we had already on the constitution. Some of them have even been weakened. They are, I am afraid, also destined to be ineffective. In John Major’s day, the European Court got around our working time directive opt-out by using health and safety law instead. Exactly the same will happen to our partial and curiously worded opt-out from bits of the Charter of Fundamental Rights; it is wide open to judicial circumvention. There are Members of Parliament in Westminster who would not be there but for the promise of a referendum in their party manifesto. That promise has now become inconvenient, but it is a bit late to take a high moral tone about the virtues of representative democracy. It is no use claiming that the public’s frustration is all based on myths got up by Rupert Murdoch; he did not write the Liberal Party manifesto and the two-thirds of voters in the other 26 member states who tell pollsters that they, too, want their say on Europe’s future have never read one word of the Sun. Only one thing has changed since the referendum promises were made: Tony Blair thought that he could talk the people into supporting the constitution but Gordon Brown does not. The irony is that they may both be right about their own persuasive powers. A freely offered vote might indeed have been won by the ““yes”” side, but the fear of losing a painfully extracted vote is not by any stretch of the imagination a moral justification for going back on the pledge that got you elected. It is said—I have heard it here—that Lisbon is just a streamlining treaty; Maastricht was more important, and we were not given a referendum on that. Well, perhaps we should have held one. Our failure to do so may be one of the reasons why the public feel so alienated and so impotent on Europe. Instead, we got something else: an opt-out on its main feature, the single currency. This later developed into a promise of a referendum, a promise that holds good today. I hope that it has a better fate than other promises. The other outstanding feature of Maastricht was the division of powers between nation states and the European Union, the co-called pillars. Defence and foreign affairs were to be matters of co-operation but essentially left to national Governments, as were justice and home affairs. Trade, which needs an international legal and administrative system to resolve disputes and function properly, would of course remain under European law. The public at the time were suspicious about whether that division of powers was for real and whether it was as reliable as it seemed. They were told that it was the high watermark of integration, but they wondered. If it was genuine, they approved of it. Criminal law, social policy, security and defence affect their lives directly in a very personal way. If these are determined in languages that they do not understand by remote judges and unelected bureaucrats or by unknown politicians behind locked doors, citizens lose the sense of ownership; they no longer feel that they belong. So, on the surface, Maastricht reflected the British preference for a liberal unified trading Europe and a co-operating, rather than unified, political Europe. There was a lot of talk at the time about subsidiarity, with the suggestion, which was later repeated in the Laeken declaration, that some powers might even be returned, in the name of subsidiarity, to member states. That, too, was reassuring for the public. Unfortunately, it did not work out as the optimists expected. It was the suspicious ones who were right; they had understood better the incremental nature of European treaties. What started in Paris in 1951 as a treaty to reconcile France and Germany and to control the war industries became an economic community six years later at Rome and in 1983 turned into the single market. Eight years after that, it took an openly political dimension with Maastricht. Since then, we have had two more modestly centralising treaties. Now, with the Lisbon treaty, just as with the constitution, the formal division of powers that Britain has always championed is to be completely dismantled. When people ask for a referendum on this treaty, it is not so much because of its specific individual content but because it is the cumulation of seven major treaties, each marking a further uncertain step towards an elitist political Europe—a process completely different from the transparent, measured and democratic process that gave rise to the American constitution. In Britain, we inherited from the 17th century a balance of constitutional power between the monarch, the Lords and the Commons. Democracy has now replaced kingship as the ultimate source of political legitimacy. What is new and different today is that, through the internet and other 21st-century technology, voters can obtain information and exchange ideas on a previously unheard-of scale. It would be possible to engage them regularly in political dialogue if we wanted to. The evidence of referendums elsewhere from the past 50 years shows them to be a remarkably thoughtful and productive way of resolving difficult issues. In practice, however, under our system the British people’s ability to exercise their balancing power is limited to once every four or five years. With the diminished role left to us in this House, we have a special responsibility to defend the people’s known will between elections, otherwise we will effectively be condoning, or accepting, the fact that the sole trustee of the nation’s deepest purpose and settled intent is the Government of the day—in this case, a Government put in power by less than 25 per cent of the electorate. With all the deference of a relative newcomer to your Lordships’ House, I suggest that, as we go through the Bill line by line, we should not hesitate, if we think fit, to send back constructive amendments to the other place for it to think again about clauses that the Government once swore that they would never sign and to revisit the pledge of a referendum made by all three parties. Parliament’s reputation with voters is not high; that would go a long way towards restoring it.