European Union (Amendment) Bill

My Lords, first, may I say to the noble Lord, Lord Hunt of Wirral, how much I have missed him? For what may be the only time in our deliberations, I agree with him that the array of knowledge, experience and talent that has come together demonstrates again that your Lordships know very well how to have an 11-hour debate, end up quite exhausted, but end up very determined. I look around at so many noble Lords who have contributed and think that this is a debate par excellence. I feel very privileged to be here. I took on this responsibility very willingly and I am delighted that I did so. In the time that I think I can safely allocate myself without causing too many concerns, I shall try to deal with some of the comments that have been made, with the inevitable apology that I shall do little justice to our deliberations at this stage, but that I hope to make up for that as we progress with this Bill through your Lordships’ House. The award for passionate contributions goes to the noble Lord, Lord McNally, with close seconds to the noble Lords, Lord Maclennan of Rogart and Lord Forsyth, and my noble friend Lady Symons. We would have been poorer without their contributions for sure. Early on in his contribution, I think that I heard the noble Lord, Lord Forsyth, say that I dazzled him. I am very impressed with that. I of course agree with the noble Lord, Lord Hunt of Wirral, on the maiden speech. I give the award for the maiden speech made in a highly controversial debate, but made extremely well, to the right reverend Prelate the Bishop of Chichester. He followed admirably in the footsteps of his predecessor George Bell. I agree with him, and the quoted President Sarkozy, that it is time to move on from institutional change to doing what is needed. I agree wholeheartedly with the right reverend Prelate and I thank him for his support. I enjoyed the speech made by the noble Viscount, Lord Falkland. I am pleased to see that the power of speeches to make effective change still exists. As the noble Earl, Lord Ferrers, said, I hope that the second half of the debate did not change his mind back again. On opening this debate, I paid tribute to the work of the members of the European Union Committee, but I clearly was not alone. To the noble Lord, Lord Grenfell, I say, ““Feel the love””. As every noble Lord who has commented on the report has said, this was a remarkable piece of work. Sadly, as my noble friend Lady Symons said, it was not picked up by the media, for the reasons that she gave. The noble Lord, Lord Grenfell, asked particularly about the comments on page 246 of the report on how your Lordships’ House would deal with the consequences of the treaty in terms of procedure. I very much look forward to talking with the noble Lord, Lord Grenfell, and to my noble friend Lord Harrison, who made a great speech. I also would be grateful for the views of other members of the committee. Perhaps we can begin those dialogues very soon, for I appreciate that that is important. To the noble Lord, Lord Goodlad, I offer many accolades for the work of the Constitution Committee. We will look carefully at its report and at the comments made by the noble Lord today. I shall try really hard not to trade quotes with the noble Lord, Lord Howell. I have here the quotes that perhaps I could have used. I agree with the noble Lord, Lord Goodlad, although I know that he was pained when he made the comment that we should rest on the merits of the argument. I appreciate that point and agree that that is what we should do. I ask noble Lords who have not yet had the chance to look carefully at the reports in this House and another place to rely on them in their entirety and not necessarily on the selectivity of individual quotes. It is very important that we do that, particularly because I was struck as I watched my honourable friend Mr Connarty talk about what had happened to some of the quotes from the committee’s report in the other place. He was particularly concerned about how the report was used, which is relevant to some of the comments made by the noble Lords, Lord Renwick, Lord Burnett and Lord Moran. He was worried about halves or quarters of sentences being used. The relevant example that he gave—noble Lords have raised this—was that the Scrutiny Committee had said that the reform treaty was substantially equivalent to the EU constitution. That is not what was said in the report: what was actually said was completely different. What matters is whether the new treaty produces an effect which is substantially equivalent to the constitutional treaty. Those who took the last part of the sentence and presented it as fact should note that the report went on to say that for countries that did not have opt-outs and derogations, the treaty was substantially the same, but that was not the case for the UK. I agree with my noble friend Lord Gilbert about the noble Lord, Lord Williamson. He made a balanced, sensible speech and one that was right. I am grateful to the noble Lord for his contribution. I was worried that my noble friend Lord Gilbert might go a little over the top, but thankfully he did not. I agree with what he said, particularly about the death penalty, and of course about the importance of European Union enlargement into eastern Europe. When I was a justice Minister I had the pleasure of meeting colleagues in Romania, Bulgaria, Poland and Lithuania, where I travelled on a number of occasions to work with them and support what they were doing both prior to accession in the case of Romania and Bulgaria, and post-accession in the case of all four countries. It was a deeply privileging experience and extremely important as we began to work together on areas of justice. I would say to the noble Lord, Lord Monson, that the bus driver directive he mentioned is completely untrue, and I shall have to look at all the others he cited. At one point I thought that the banana directive would rear its head, but I am pleased to say that it did not. In response to the words of the noble Lord, Lord Goodhart, I will try to demonstrate that not everything that is important needs to be boring, something my children tell me I have pretty much failed at for the whole of my life. My noble friend Lord Giddens was right to say that what we have is where successive governments have sought to get us: to an open, flexible and enlarged European Union. We are at a very important point in our history as a part of Europe. The noble Lord, Lord Kerr, and my noble friend Lord Kinnock said that the purpose of this treaty lay in having to think about how to deal with a European Union that was no longer made up of six, 12 or 15 nations, but 27. Its institutions and modus operandi needed to reflect that. Some of the frustrations described by my noble friend Lady Symons when she was a Minister working in Europe I shared on the Justice and Home Affairs Council, and I believe, as I know she does, that changes are important. But changes are needed, as the noble and learned Lord, Lord Howe of Aberavon, pointed out, in order to enhance British influence, or as the noble Lord, Lord Kerr, said, to have a cohesive and coherent European Council with influence in the wider world. I agree with the noble Baroness, Lady Northover, about how differently the next generation views the world it has grown up in, and I appreciate the sporting analogy she made. But I have to say to the noble Lord, Lord Kerr, that I think it has been more Arsenal than Derby County tonight, which is the highest accolade I can give when living in an Arsenal household and being a Liverpool supporter. We need to make changes while protecting British interests and enhancing British prosperity. I agree with the noble Lord, Lord Rodgers, that the EU has been good for our prosperity. The free market of capital and the measures on competition mentioned by the noble Lord, Lord Jay, will make a big difference. I leave both noble Lords to try to reassure the noble Lord, Lord Pearson of Rannoch, about employment. I have failed completely every time I have answered Questions on this subject, but perhaps with the help of the noble Lords, Lord Jay and Lord Rodgers, we may be able to achieve more. The noble Lord, Lord Pearson, shakes his head, and that is probably the way it is. The noble Lord, Lord Tugendhat, said to nods of agreement from some noble Lords, particularly on the Liberal Democrat Benches, and support from the noble Lord, Lord Bowness, that he feared that the Government had been defensive rather than positive in promoting the treaty. I have thought about it quite a lot over these hours, so as I turn to the issues that have been raised, let me see if I can truly defend and promote this Bill to the noble Lord’s satisfaction. I agree again with the noble Baroness, Lady Northover, that there is nothing frightening in what we want to achieve here. I turn to the relationship between the treaty and the constitution. I have said already on a number of occasions in your Lordships’ House that they are not the same, and I shall quote from a document: "““One of the most important aspects of the Constitutional process and the one that fundamentally differentiates the Treaty of Lisbon from the Draft Constitution is that the Constitution repealed the existing Treaties and replaced them with a single text. In so doing the Constitution would have created a new European Union that would have replaced and succeeded the existing Union””." I am quoting from The Treaty of Lisbon in Perspective, my new blue book. I want to thank the noble Lords, Lord Pearson, Lord Stoddart and Lord Willoughby de Broke, who bought it for me saying that I might find it useful; indeed, they have inscribed it for me. I have found it useful because I have just quoted from it. Noble Lords know that there are other differences between the constitution and the treaty. The primacy of European Union law is removed from the main text and included as a declaration, and the symbols are removed; the Charter of Fundamental Rights is removed from the text to a separate document and the changes are highlighted; the Protocol on the charter with nothing extended; the ability of any court, European or domestic, to strike down UK law; the common foreign and security policy in a separate treaty, nothing affecting the existing powers of member states; opt-ins additionally in criminal law and police co-operation; the strengthen, break and veto power in social security; for the first time confirming that national security is the responsibility of member states—which is an important aspect, as noble Lords will appreciate; and, as the noble Lord, Lord Hannay, said, moving away from the centralising tendencies of the past. Am I going to convince some noble Lords opposite and on other Benches about this? I am not. Although I have learnt much about fishing from the noble Lord, Lord Forsyth, I fear I will never convince him on this. The debate about differences is, in a sense, the debate about the referendum, and that owes much to party politics. Whatever the noble Lord, Lord Hunt of Wirral, says, I believe that the once great Conservative Party is in a difficult position in Europe, isolated as it is from those with whom it should naturally be in concert as it moves forward in Europe. On the referendum, the noble and learned Lord, Lord Howe of Aberavon, said that referenda are a gamble on issues like this. The noble Lord, Lord Rodgers of Quarry Bank, with his £165 win, knows much about gambling. I will begin my comments by citing a remarkable speech in 1975 when the question of a referendum was being considered. Making points about parliamentary strength and collective responsibility, the noble Baroness, Lady Thatcher—then Mrs Thatcher—said: "““The third point I want to make is the effect of a referendum on representative Government … our system, which has been copied all over the world, is one of representative Government under which those who do not have the time to look into every detail of this or that Bill choose people who are honourable and with whose opinions they are in harmony to discuss these matters. That has been our system of Government for many years, representative Government in which the representatives consider and discuss all the points in detail””." I was thinking of that when the noble Earl, Lord Ferrers, described his concerns about the weight, literally, of the documentation and the detail with which he felt he could not get to grips without being a lawyer. There are real issues when one considers the use of referenda. We are trying in this Parliament and through the deliberations in your Lordships’ House to give the level of detail that representative Governments and Parliaments should do to make sure that the people of this country can trust, to go back to the word of the noble Lord, Lord Hunt of Wirral, this Parliament to make those decisions. I do not expect an answer tonight, but a question that has been around for some time is what would happen if the Conservative Party were to come back into power. What would it do if the Bill is ratified, as I trust it will be? What would be its position? It is very important not only for this Parliament to know but for Europe to know. Again I go back to the words of the then Mrs Thatcher. She describes the situation thus. She said: "““The treaty has been in operation for over two years. I know of no country in the Western World in which a referendum has been used to override a treaty obligation which had been through all its parliamentary stages and had been in operation for two years. Such a step would have a damaging effect on Britain’s standing in the world””.—[Official Report, Commons, 11/3/75; cols. 313-14.]" I therefore hope that during the course of our discussions and deliberations, just as the noble Lords opposite expect me to deal with all of these issues, I expect them to tell us what they plan to do should the treaty be ratified, placed on the statute book and they, at some time in the future, come back into power. Noble Lords referred also to some of the local referenda and the figures that have been given by that campaign. I dealt with this in another debate. The figures from the We Want a Referendum campaign—not my figures—show that 62 per cent of the electorate in each area were given a ballot paper; 23 per cent of the electorate sent it back. Those in favour of a referendum, therefore, represented 19.8 per cent of the electorate. That is the figure we need to look at, not at what was the percentage of those who bothered to return the ballot paper because that does not tell us anything. What matters is what percentage of the electorate who had been given a ballot paper responded. We have to be very clear about that. The noble Lord, Lord Leach, asked whether the pledge of a referendum would have had any effect on candidates. I bothered to ring up a person who might know about the information from polling. We cannot see any effect that it would have on Labour or Liberal Democrat candidates, so I do not accept the assertion. We are clear that the treaty is not a constitution. The Government believe that, as in all previous treaties, it is for Parliament to decide. As the noble Lord, Lord Maclennan, said, we are acting entirely appropriately. For some noble Lords, the issue is not about a referendum; it is about the European Union itself and its future. Noble Lords were frank, open and honest about that and I respect them enormously. Some noble Lords would be supportive should there be a referendum. Others would argue not to sign up to the treaty and some would argue further than that, that we should not continue in Europe. We have to consider the implications of that very carefully. My noble friend Lord Clinton-Davis said that the route being prescribed is misconceived and could be damaging. My noble friend Lord Tomlinson asked what happens if this Bill falls. Is what is being sought the status quo or is it a retreat? How would we deal with the issues of an enlarged European Union and the institutional changes that are necessary? As any noble Lord knows who has ever been involved in an organisation that grows, one has to decide the rules to make sure that they are appropriate for the organisation. The noble Lord, Lord Garel-Jones, said that the Government backed off from a referendum because we thought we would lose it. There is no evidence from referendums anywhere that Governments lose because they do not put their energy into it. Our record on referendums suggests that the chances are very high that the Government would win it, not least because the constitution, had we gone down that route, was what we believed in. As I said, there is a substantive and important difference between what was proposed then and what is proposed now. There was no fear of that on this side of the House. The noble Lord, Lord Teverson, suggested that we could have a Europe-wide referendum. That was rather a brave thought, but I am not sure that any of us is ready to go down that road. The noble Lord, Lord Stoddart, asked particularly about the UK and the Commonwealth. Noble Lords also asked about the euro. Government policy is that we would not go into the euro without a referendum. The Government continue to believe very strongly in the importance to the UK of the Commonwealth. Membership of the European Union is not to the detriment of membership of the Commonwealth. It is not an either/or issue. The Commonwealth is an extraordinary network of countries, big and small, rich and poor, that represent more than a quarter of the world’s population. It has great potential, as many noble Lords will know. The noble Lord, Lord Howell, is a passionate advocate of our relationship with the Commonwealth. We are by far the largest contributor to it. I can also say that the Queen’s position is completely unchanged by the treaty. The noble Lord, Lord Howell, was worried about the parliamentary scrutiny in another place. We gave 11 full days in Committee in the Commons. Noble Lords might not have liked the fact that we discussed issues of justice and home affairs, energy, human rights, the single market, foreign policy and defence, but these are substantive and very important parts of what we are seeking to achieve and why Europe and this treaty are so important. There were 45 Divisions, with healthy majorities on each. The majority in favour of the Bill on Third Reading was 140. There were 315 amendments, of which 279 were Conservative amendments—Mr Cash had 154 of them. There were 20 Labour amendments, 14 Liberal Democrat and two SNP. There will now, quite rightly, be proper, detailed scrutiny in your Lordships’ House. We will no doubt deliberate the Bill properly and appropriately, as your Lordships would wish to do. The noble Lord, Lord Lawson, asked about the competencies. It is very important that the treaty sets out for the first time what the competencies are. Articles 2, 3 and 4 talk about what is exclusive, what is shared and where the role of the European Union is to support and co-ordinate member states. This is the first time that that appears and I think it is important. The noble Lord, Lord Goodhart, to whom I pay tribute for his work on the Delegated Powers Committee and with Justice, described admirably what we call pillar collapse. I am grateful to him. I shall not comment further because he did it so well. I wanted to clarify to the noble Baroness, Lady Hanham, about the opt-in. The current system, which is replicated but extended in terms of what we can do, says that opt-in is available at the beginning and the end of the process. I know that because there were a number of civil justice issues where I did not opt in at the beginning, but we participated throughout. The working groups got our views across and we ended up in one particular case with a position where we felt so comfortable with what we had achieved that we were able to opt in. That is an important element of this. It is not a question of not being able to opt in at the beginning; therefore you cannot opt in at all. Paragraph 5 of Article 63A, which the noble Baroness quoted, states that individual states control the admission to their country, not the European Union. I hope that the noble Baroness would welcome that. She also asked me about control over our borders. The existing frontiers protocol, which makes it clear that the UK has the right to maintain its own border controls, is indeed carried over to the Lisbon treaty. She asked about Frontex. It is a Schengen-building measure. Only the countries who participate in Schengen and in the acquis can be part of Frontex. However, the UK has chosen not to participate in the underlying Schengen acquis. That is why we are not participating at this point in Schengen. The noble Lord, Lord Waddington, asked when the opt-outs were negotiated. The four red lines were agreed in principle at the June 2007 European Council meeting where all 27 member states agreed a mandate, and the detail was agreed later at the intergovernmental conference and concluded in December 2007. The noble Lord, Lord Blackwell, asked about fines; that word is not used anywhere in the treaty. Where the UK decides that it will not participate and where that non-participation—and this is important—renders the measure inoperable, the European Union can decide that it does not want the UK to be involved because it does not work. Where it does not work and therefore everything has to be redone, there is a provision that says that we will pay the consequential costs. That is a reasonable measure to have in place bearing in mind what we would be asking them to do, which is to move out of something, make it inoperable and for them to have to put it together again. I want to talk about the common foreign and security policy briefly. I begin with the EU Committee report which says: "““The Treaty will not change the scope of the CFSP or transfer any additional powers to the EU in this area””." My noble friend Lady Symons and the noble Lord, Lord Kerr, pointed to the importance of the high representative who will be selected by the Council and answerable to member states. The noble Lord, Lord Astor, was worried about that. It is an important role in our view, but there is a clear responsibility as well. The noble and learned Lord, Lord Howe of Aberavon, and my noble friend Lady Symons said that British foreign policy is not diminished. I completely agree. This is not about the EU getting a seat at the Security Council and we will certainly not give up ours, whatever the French decide to do. The noble Lords, Lord Hannay and Lord Roper, referred to the External Action Service formed from the relevant Council secretariat and the Commission services with secondees, we trust, from national diplomatic services. It does not replace the Diplomatic Service of the UK. It will co-operate but not replace. I say to the noble Lord, Lord Roper, that there are 133, I am told, not 128 Commission delegations covering all the countries where the UK has important relationships, not least in providing support on development. The noble Lord, Lord Plumb, spoke very movingly about what he saw in war-torn countries such as Rwanda. Like him, I am proud when I see on my television screen—as opposed to what the noble Lord saw in person—EU tents. The noble Lord, Lord Astor of Hever, was worried about the role of NATO. As the treaty says, NATO, "““remains the foundation of their collective defence and the forum for its implementation””—" that refers to member states. It retains the current language and the character of security and defence policy. The Lisbon treaty is supported by the United States of America and other NATO members, as I indicated in my opening remarks. The noble Lord, Lord Owen, was particularly concerned about whether the President of the European Council could be the high representative, so let me be clear. The treaty of Lisbon creates a full-time President for two and a half years as opposed to a rotating President every six months. Those of us who have been involved in the presidency—noble Lords who have been there themselves will remember—know that just as one gets into chairing the committee it is gone and you have to move on. There is logic in 27 countries having this appointment for a longer term, but working for and at the behest of the member states. The treaty says that the postholder could not be President of the European Commission. The Lisbon treaty makes it clear that members of the Commission may not, during their term of office, engage in any other occupation and shall neither seek nor take instructions from any Government or from any other bodies. Of course the high representative is a vice-chair of the Commission, so they will be covered by the same thing. I hope that allays the noble Lord’s concern. The noble Lord was concerned, too, about the role of the European Court of Justice asserting jurisdiction over the common foreign and security policy. No, the Lisbon treaty contains, for the first time, explicit exclusion of the Court’s jurisdiction over the foreign and security policy. That is important. I say to the noble Lords, Lord Howell and Lord Waddington, that the European Court of Justice is an important aspect of the European Union. The European Union is a rules-based organisation, which is what makes it successful. Without an effective European Court you cannot enforce the rules. It is in our interests. As my noble friend Lord Kinnock said, its role is to ensure that in the interpretation and application of EU treaties European law is observed. Member states make the rules through the treaties, not through the European Court of Justice. There are lots of examples where the European Court of Justice has ruled in favour of the UK. Passerelle clauses have been described as ratchet clauses. Passerelle does not mean ratchet; it means footbridge. As the noble Lord, Lord Lawson, will know, passerelles are not new; the concept was first introduced by the Single European Act when he was a Cabinet Minister, and the new provisions have been introduced in every amending treaty. But for the first time since the passerelles allowed moves to qualified majority voting, which was introduced in 1986, Parliament will have the final say over their use. I hope the noble Lord will welcome that. As the noble Lord, Lord Grenfell, said, qualified majority voting can be a positive force. As my noble friend Lord Radice said, if you are ever going to change the common agricultural policy, the route may well be through qualified majority voting. I say to my noble friend Lady Turner that I hope she will be able to look at what has been said by my noble friend Lord Kinnock and others and find that her issues have been addressed appropriately. I go back to the noble Baroness, Lady Thatcher, and her speech in 1993. We would never have got the single market without an extension of majority voting. We wanted a single market and we had to have some majority voting. That is right. But my right honourable friend the Prime Minister has made perfectly clear his commitment: "““To ensure that no Government can agree without Parliament’s approval to any change in European rules that could, in any way, alter the constitutional balance of power between Britain and the European Union, we will make a provision in the Bill that any proposal to activate the mechanisms in the treaty that provide for further moves to QMV, but which require unanimity of member states, will have to be subject to a prior vote by this House””.—[Official Report, Commons, 22/10/07; col. 22.]" I cannot be clearer than that. The noble Lord, Lord Owen, was worried about whether we should have an Act of Parliament for these. I think that a resolution in both Houses is the way to go forward. My noble friend Lady Turner worried about what happened in terms of UK citizens and rights. There is no question of fewer rights. All the social and labour provisions are either existing rights in United Kingdom law or are guiding principles. We are bound by the same rules on working conditions as other European Union states. There is no effect on the current rights of children in the Bill. My noble friend was worried about migrant children. As for new powers for Parliament, the noble Lord, Lord Hannay, and the noble Baroness, Lady Williams, talked about the importance of national parliaments having a direct say in making European laws. Although the noble Lord, Lord Teverson, was not enthusiastic about yellow and orange cards, I think they are very important. My noble friend Lord Haskel welcomed them. The real issue is what we do together as part of the European Union. The noble Baroness, Lady Williams, and the noble Lord, Lord Jay, talked about the spread of human rights and democracy. My noble friend Lady Quin talked about the relevance and importance for new member states; the noble Lord, Lord Goodhart, about justice and home affairs; my noble friend Lord Harrison about mental health and the benefits to Liverpool, for example, as the City of Culture this year; the noble Lord, Lord Maclennan, about climate change and trade; the noble Lord, Lord Plumb, about environmental protection; my noble friend Lord Sewel about agriculture. The noble Lord, Lord Hannay, said that if we act alone we cannot solve our problems. I agree, and I agree with my noble friend Lord Kinnock that the Bill will strengthen democracy, and I agree on the importance of competition in so doing. The noble Earl, Lord Sandwich, made a very important speech about development. It is not about downgrading through the high representative the role of international development. It will be his responsibility to ensure that there is coherence of action. It makes clear through the Lisbon treaty that, for the first time, the primary objective of development is poverty reduction. I will respond in more detail to the noble Earl but I can say that I know he is worried about EuropeAid. There have not been further discussions about it yet. Of course, trade and the links that the noble Earl referred to are important as well. The CBI has said how important it believes this is, but, more importantly, that we need to get on with the differences that will be made. I agree with those noble Lords, including my noble friend Lady Quin, on the need to think about information. Somebody said: "““Our duty is to be resolute, to hold on to our red lines, to engage and participate, standing together in Europe, otherwise we shall in the end hang separately””.—[Official Report, 5/12/07; col. 1794.]" That was the most reverend Primate the Archbishop of York, who sadly is not in his place this evening. The noble and learned Lord, Lord Howe of Aberavon, said that democracy requires leadership. We have to lead on this: we have to lead as a Parliament and as a Government. I say to the noble Lord, Lord Garel-Jones, that we should do the right thing, which is to ratify the treaty in the right way—that is by Parliament—and for the right reasons. That is because it matters to the citizens of this country that we do so, in order that they have their opportunities enhanced. I hope that the House will agree to give the Bill a second reading. On Question, Bill read a second time, and committed to a Committee of the Whole House.