European Union (Amendment) Bill

My Lords, following the remarks of the noble Lord, Lord Howell, one is bound to express some sympathy. It is always very awkward for any Members, particularly those who are proposing amendments, not to have the chance of seeing crucial documents at the right time. I do not seek to interfere or to explain the background because I am not aware of it. However, in contrast to that, throughout our proceedings in Committee and on Report I have found—I think that other noble Lords would echo this—that the Government have been very assiduous and efficient in making sure that Members are well informed in advance on all the modalities and matters to do with any amendments that are tabled and so on. So I repeat my feeling of surprise that that has apparently happened and I, too, look forward to hearing the explanation of Leader of the House in answer to the noble Lord, Lord Howell. I do not wish to embarrass the noble Lord, but I also have some sympathy with him on his initial remarks about Amendment No. 28E. As he said, this refers to Article 352 of the TFEU, which was originally the famous Article 308. Bearing in mind that on the previous amendment my noble friend Lord Wallace said that the noble Lord, Lord Pearson, had apparently gone home, I couple my surprise and sympathy for the noble Lord, Lord Howell, with shock because the noble Lord, Lord Pearson, used regularly to raise the famous Article 308 matters in legislative proposals and in parliamentary Questions. For him to miss this opportunity on such an important matter seems to be surprising. Noble Lords will remember that the famous old Article 308 gave those extra powers to the Union or the Community and the Council of Ministers to make decisions where there was nothing covered in other treaty articles and provisions. The flexibility clause, as it has been named colloquially, gives the Union institutions the ability to adopt measures to achieve one of the objectives set out in the treaties where the treaties themselves do not provide the necessary powers. This means the Council acting by unanimity in adopting the measures and there is, therefore, always the use by member states of the national veto if that is deemed to be necessary. One would expect that to be a very rare occurrence. The flexibility of the clause therefore is more to do with competence and implied powers of the Union rather than the flexibility of either the interpretation of the treaty articles or the flexibility of member states to opt in or opt out of the provisions. The noble Lord, Lord Howell, alluded to a number of changes made to the article. In particular, the phrase, "““the objective of the measure is in relation to the internal market””" has been removed. The original justification for Article 308 was to deal with those matters in the internal market provisions that were not going to be covered by other treaty articles. There was a good deal of United Kingdom sympathy for that, because of our deep affection for the single market and the creation of the internal trading market of the European Union. This contrasted with our objections about extending powers in other areas of the Community’s endeavours in future legislation. The article has since been expanded to state that national parliaments will be informed of the proposals of any measure that will not lead to harmonisation of the laws of the member states. The article cannot serve as a basis for legislation in relation to CFSP. Sometimes there are misunderstandings in these matters. One can range over a number of issues that come up in respect of this article and other examples not related to this. I have—quite legitimately—come into possession of a copy of a recent ministerial letter to a noble Lord. I will not name the Cross-Bench Peer. I tried to find him this evening to ask if I could mention his name. I could not find him and therefore, for what I am sure are understandable reasons, I prefer not to name him. The ministerial reply is dated 29 May. It is from the Government and concerns the anxieties of the noble Lord, Lord X, about whether, if one burned the European Union flag, one could be prosecuted under UK law for stirring up racial hatred or animosity. The ministerial reply states: "““I can confirm that, in itself, burning the European Union flag would not lead to prosecution under racial hatred legislation in the UK. Where the flag belonged to someone other than the individual who set fire to it, it might be possible for the individual to be prosecuted for criminal damage. In addition, if the individual’s behaviour more generally was deemed to stir up hatred or public disorder, their actions might be investigated with a view to prosecution””." It continues: "““If a directive in this area were to be proposed under the Lisbon treaty, the UK opt-out would apply””." Noble Lords getting into such phantasmagorical territory as the voluntary or compulsory burning of the EU flag in order to make a point against the European Union seems to us on these Benches utterly daft. What on earth are people anxious about in the rational development of the modern European Union of 27 countries’ machinery to make the working of the Union effective? One must have that essential machinery: that is what the Lisbon treaty Bill is about. I find the anxieties about Article 352 also to be overstated by people thinking that it is an ““open sesame”” to any agreement on extending powers. After all, it has to be by unanimity—we need to keep reminding ourselves about that. Some noble Lords, because of their original views and antipathy towards the European Community and all its works, get carried away with a lot of nonsense on these occasions. We were reassured on 13 March by the famous Lisbon treaty impact assessment of the EU Select Committee, of which I have the honour to be a member. It stated: "““Article 352(2) of the TFEU, which applies the yellow card procedure expressly to measures under Article 352, (the ‘flexibility clause’ … ) does not add anything of substance. Proposals adopted on the basis of Article 308 are no different from other proposals and fall under the subsidiary monitoring procedures without any special article. … The reformulation of Article 308 to exclude the reference to ‘the operation of the common market’ makes clear that, in future, new Article 352 can be applied to any area of the EU’s activities—except CFSP””." I think it is fair to say that the Committee did not sound worried about that. It seemed to be a common-sense addition, as the growth of the treaty has meant other activities must be covered. As the Lisbon treaty puts it beyond doubt that the Article 308 machinery does not allow the EU to expand or circumvent the limits set by the treaties— "““Measures based on this Article may not entail harmonisation of Member States’ laws or regulations in cases where the [treaties] exclude such harmonisation””—" I am reassured, and I think that Members on these Benches are reassured, by these welcome declarations. The further clarification we have is that not only is CFSP excluded, which has reassured a number of noble Lords in recent debates, but that the consent of the European Parliament is also now required. Personally, I welcome that, but I accept the suggestion of the noble Lord, Lord Howell, that it needs to be explained more thoroughly by the Government. Finally, we have a veto. There is a famous obsession with vetoes, but in this case it might be justified depending on what matter needed to be vetoed in the future. In the mean time, we feel that it is not necessary for the amendment to be pressed tonight.