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At this stage, I shall not press the amendment, but I hope that the Minister will look at the matter again and see how much support there has been for such an amendment right across the House. That does not necessarily mean that my wording is perfect and it is the Minister’s Bill and his right to come back with whatever wording he likes. But unless we start hardening up and putting things on the face of this Bill, we are merely using warm words and wasting our time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Waddington moved Amendment No. 30:
(1) An order made under Part 1 containing provision relating to Community Treaties, Community instruments or Community obligations shall, notwithstanding the European Communities Act 1972 (c. 68), be binding in any legal proceedings in the United Kingdom.
The noble Lord said: I had an opportunity of trailing this new clause the other day, so I shall try not to dwell too long on what I said then.
Most of the regulatory burden on business has its origin in Europe, and many may think that a deregulatory initiative that does not recognise that fact is little more than window dressing. The Government said that better and less regulation was a priority of the EU, but the figures that they cite in support of that proposition
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The noble Lord, Lord Bassam, seems reluctant to admit that to the best of my knowledge not one single measure introduced by the Commission over the years has ever been repealed. That is hardly surprising. If you have a system under which only the Commission can introduce legislation, it is only the Commission that can introduce repealing legislation, and it is not in its nature to do so.
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Where does that leave us? Have we just to accept that a burden placed on business is irremovable, and there is nothing to be done about it if that burden has been placed as a result of a decision in Europe? I suggest that if Parliament so wills, there is something we can do about it, and this new clause points the way. If the new clause is accepted, three things will happen. First, it will be plainly stated in legislation—for the first time, I think —that the 1972 Act, although of great importance, is no different from any other Act of Parliament. With the European Communities Act 1972, there was, in the words of the noble and learned Lord, Lord Bridge of Harwich, in the Factortame case, a voluntary surrender of sovereignty. What has been given, however, can be taken away. The Act can be repealed by any other Act, and other legislation can disapply it in specified cases. It is no bad thing for Parliament to assert that fact. If it does not, the time may come when the courts say, “It’s too late to assert that the 1972 Act is like any other Act; too late to ask the courts to affirm a law which contradicts a treaty obligation, even if Parliament states in plain and unambiguous terms that that is the law’s intent”.
I must emphasise that the new clause is not an invitation to the Government to break our EU treaty obligations. It is a reminder that Parliament is sovereign and can, by appropriate legislation, override earlier legislation, none of which is entrenched, and can certainly, if it so wishes, use machinery such as is provided in the Bill to make laws relating to Community obligations. The clause does not attack the 1972 Act, but merely states that, notwithstanding what is contained in the 1972 Act, a Minister may make an order removing or reducing a burden of the type referred to in Clause 1, and we can ensure by the use of clear and unambiguous words that the order is binding in any legal proceedings in the United Kingdom. The new clause is a timely reminder of Parliament’s rights—an assertion of Parliament’s sovereignty.
Secondly, I want to be sure that a Minister is able to make a legally binding and effective deregulation order where the original order was made in purported compliance with the 1972 Act, but in fact went further than was necessary to meet our EU obligations. Surely the Bill should make it clear that a new order could be
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I can give two examples where the new clause might be helpful. One example of how the power might be used is in relation to the droit de suite directive, which gives artists the right to a cut when their works are resold. Although the Government opposed the directive, and it was imposed on us only by majority voting, the Minister did not take what many might have thought was the obvious course of implementing the directive to the letter, but proceeded to enlarge its scope dramatically by applying it to transactions of far less value than those covered by the agreed scheme. This provision could be used to take the regulations back to what is strictly required.
Another example was highlighted by a case in the Court of Appeal the other day. Under the EU regulations, boats less than 10 metres in length do not have to keep records of their fish catches. In Britain there is no such exemption for small boats. In that way Defra makes the common fisheries policy even more onerous than is necessary for many of our fishermen, and ensures, incidentally, not that fish stocks are preserved but that the fish are caught not by British fishermen but by those of other nations.
This new clause is an assertion of sovereignty and would meet the need to ensure that the Bill’s machinery can be used in respect of orders made under the 1972 Act, in particular when an order has gone further than is necessary to meet the Community obligation. Finally, the new clause would enable the Government in an exceptional case, and after appropriate negotiations, to say to our partners in Europe and/or the Commission, that we insist on deregulating on our own terms and propose to make such deregulatory law binding on the judiciary in this country, notwithstanding the 1972 Act. I submit that that is a common-sense approach. It lacks common sense and it is an insult to Parliament to say that what is done in Europe, however absurd it may be, is inevitable and that in no circumstances can Parliament touch it. With that I could never agree. I beg to move.
Lord Willoughby de Broke: I have added my name to the amendment standing in the name of the noble Lord, Lord Waddington, because it fills an extraordinary gap in the Bill. I understand and approve of the value of the Bill to deregulate and to reduce red tape. As the Minister said at Second Reading, the Bill will,
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- “it is of crucial importance for the continued competitiveness of this country that any Government pursue as many measures as possible to ensure that regulation is kept to an absolute minimum so that businesses ... can concentrate their efforts where they add most value”.—[Official Report, 13/06/06; col. 121.]
The Minister went on to trumpet the fact that the UK was rated the second most competitive economy in the EU, which is rather like boasting that you are the second most successful penalty taker in the English football team—it really is not terribly relevant. We are competing not just in the EU but globally, and our global competitiveness is being eroded by the torrent of EU legislation that is brought forward without, as my noble friend Lord Waddington said, our apparently being able to change a single syllable of it, even where we disagree with it. It is important that the amendment is considered seriously in the light of the fact that between 50 per cent and 75 per cent—estimates vary—of our business legislation is imported from the EU. I believe that the Government said that the figure was 50 per cent in an Answer to my noble friendLord Pearson, while the German Government have said that 80 per cent of their laws and burdens on business come from the EU.
The think tank Open Europe has produced a study which found that EU legislation has been responsible for 77 per cent of the costs of regulations on UK businesses since 1998, at a cost of £30 billion to the UK economy. But none of those regulations, as my noble friend Lord Waddington pointed out, can apparently be touched by Parliament. Neither the other place nor this place can change a single syllable of any EU regulation. It simply has to be rubber-stamped and I do not believe that that is at all helpful when it comes to lessening the burden of deregulation, as this Bill is purported to do.
Perhaps I could give a few examples from the coalface of the cost and burden of these regulations. I am a farmer and just a few of the regulations that I have to face are as follows. I begin with the 18 cross-compliance directives which govern our payments through the rural Payments Agency from the European Union. We have the fallen stock directive, which is an expensive scheme to stop us disposing of fallen stock on our own farms. “Fallen stock” does not refer to the FTSE index but to animals that die on farms. We have the horse passports directive, which is totally unnecessary and completely unacceptable. It is just to prevent food from those who eat horse flesh on the Continent being affected by exports from this country. We have the waste disposal directive, which is adding costs by the day to agriculture; the work at height directive, also known as the “how many men does it take to change a light bulb?” directive; the temperature at work directive; the veterinary medicines directive; and the waste of water framework directive, which I am struggling with at the moment. For some obscure reason it requires all farmers and rural businesses to put non-return valves on every single tap on their farm and to make sure that they cannot be used to hose anything down. The reason for this, apparently, is that there may be some danger, however remote, of contaminating the mains water supply. I wrote to our enforcing agency through
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If this Bill is to be effective, it has to deal with EU legislation, as well as home-cooked legislation. Therefore, I hope that the Committee will listen very carefully and take on board the import of this amendment.
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Lord Stoddart of Swindon: I too have signed this amendment, so shall speak to it. I remind the Committee of the 1972 Act and the debates which we had in Parliament at that time. As I was a Member of the House of Commons and took part in those debates, I have a memory of what was said about the impact that the 1972 Act would have on British life. We were assured when we were giving away the right to make our own rules that we had the veto. There was the “empty chair” situation, whereby nothing really mattered because if things affected us adversely, we could veto them. But times have changed. Gradually, over a period of time, ratchet by ratchet, treaty by treaty, the veto has been virtually taken away. Now, it almost no longer exists and everything is done by qualified majority. When regulations and directives are made, the United Kingdom has an influence on those decisions of only about 8.5 per cent. One could say that 55 per cent or 60 per cent, or whatever, of our laws are not being made here in Westminster, but that they are being made in Brussels by 24 countries, including ourselves, on the basis of qualified majority voting, and that decisions that are inimical to our own interests may very well be made.
The amendment tabled by the noble Lord, Lord Waddington, attempts to deal with this and I hope that it would deal with the matter if it were accepted. It makes the assertion that British sovereignty remains completely intact, given that all appearances suggest that it does not. In Committee, the noble Lord, Lord Bassam, stated:
“We want open markets—that is what the single European market is about”.—[Official Report, 3/7/06; col. 44.]
But, of course, we are not simply talking about the single European market; and, in any event, only10 per cent of our GDP is involved in such trade, which is a point that the noble Lord, Lord Pearson, would have made had he not had to visit his physician today. However, the regulations that come from Brussels affect the whole of British industry, not just the 10 per cent of it that is involved with the European Community. Regulations are being placed on areas of our industrial and, indeed, our national and political life, that are completely unnecessary for operations in this country and are sometimes not necessary in respect of the European Union, either.
In addition, because we are part of the EC and the European single market, we are not allowed to decide what our trading policy should be. The results of that have been seen just recently, when the European Union placed tariffs on shoes coming from China and Vietnam. Perhaps people think that that does not matter, but it does. It will certainly matter to people with children,
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The other point I wish to make is that we are not really in a European Union market that believes in free trade, which I thought Her Majesty's Government, the Opposition and everyone else believed in. In fact, the single market is a closed market and access to it is only by agreement and is not open in the true sense of the word. So, again I say that the amendment is important.
Once a regulation has been made, as noble Lords will know, it is incumbent on this country to put it into operation, whether it is gold-plated or not. Once a regulation is made by the Council of Ministers and once qualified majority voting is applied, it is incumbent on this country to put it into operation and there is nothing we can do to alter it.
What are the consequences of that? I have been questioning the Government about a recent consequence which arises from the hazardous waste directive. The directive affects the use of lead and some other metals in electrical and electronic goods, and it will affect industries in this country to a large degree. It will put up their costs and, indeed, will put some companies out of business. I have tabled Questions to the Government about this, to which the Answer has been, “Well, we can't do anything about it, and it's in the best interests of the single market that we can't.” So, once a regulation is made, it does not matter how much it costs industry in this country, it has to be imposed and there is nothing that our Government can do about it. The cost of the directive throughout Europe will be about £44 billion, yet it is imposed on individual countries and there is nothing that they can do to protect their industries from possible bankruptcy. One could give all sorts of examples of the way in which the regulation operates in the European Union.
At Question Time today, the Lord Chancellor accused me of being anti-European. That simply is not true. I am not anti-European: I am simply anti-European Union and anti the impositions that it makes on our sovereignty and on our industry and national life. It affects not only our trade but virtually everything, and we are not the only ones involved. The other day, the Bavarian environment Minister, Werner Schnappauf, talking about European over-regulation, said that in the 1990s the German regions had to comply with 90 regulations a year but that now the figure is closer to 500 a year. If that is happening in Germany, it must also be happening in this country. Thus, there has been a five-and-a-half-fold increase in the number of regulations since the 1990s, and that is an enormous burden on our industry and on the country generally.
I have spoken for long enough—I am sure that some people think that I have spoken for too long—but I feel very strongly about the way that we are governed by regulations from the EU, which, in the context of the United Kingdom, have no real relevance. I believe that, by agreeing to the amendment, something could be done to mitigate the baleful effects which I fear come from our membership of the European Union and the way that it is operated.
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Lord Goodhart: Three of the four usual suspects who put their names to this amendment have spoken and the fourth, the noble Lord, Lord Pearson of Rannoch, is not in his place today. I shall be very brief.
Lord Stoddart of Swindon: In response to the noble Lord’s remarks about the noble Lord, Lord Pearson of Rannoch, earlier I said to the Committee that he regrets not being here but he had an important appointment with his doctor.
Lord Goodhart: I had assumed that something important had kept him from this debate. I certainly do not intend to cast any aspersions on the assiduity with which he pursues this cause.
There is a short answer to this amendment. Any attempt to use the procedure in the Bill to override European legislation would plainly be highly controversial and inappropriate. It would have to be dealt with by primary legislation and primary legislation alone. On gold-plating, nothing in the Bill makes this amendment necessary or would prevent the use of this procedure to remove the gold-plating element in any secondary legislation that was introduced under the European Communities Act.
Lord Jenkin of Roding: I support my noble friend's amendment. I speak with a very clear memory of having taken the financial resolution to the European Communities Bill, as it then was, through the House of Commons. It was an extremely unusual procedure because an entire day was given to debating the financial resolution in contra-distinction to the normal maximum of one and a half hours. In those days, I was a very firm supporter of British membership of the European Union, or the Common Market, as it was then called. I wrote an article, which was quoted in a number of places, called Integration or Isolation—the title speaks for itself. However, my experience since then has shown that that has altogether got out of control; it has gone too far. Although I do not for one moment go the whole way with the noble Lord, Lord Stoddart of Swindon, the amendment moved by my noble friend and the very measured terms in which he moved it are far short of the apocalyptic wishes of the noble Lord, Lord Stoddart of Swindon.
My noble friend made three points. The first was that it is important that the British Parliament should assert what has been at the heart of our jurisprudence over centuries: the supremacy of Parliament. I could quote a number of statements by prominent jurists to make it clear that, as is always said, no Parliament can bind its successor and that the courts have an inalienable duty to apply the law as propounded by Parliament. I believe that we are in danger of allowing the 1972 Act somehow to become part of a constitution that cannot be amended by the British Parliament. My noble friend has stated that as his first reason for his amendment and I think he is right.
His second reason was his clear assertion—here he is at one with Ministers—of the wish to avoid the charge of gold-plating. It seems to me that, in these circumstances, it is entirely right that when an order
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When my noble friend came to his third point, on which such emphasis was laid by the noble Lord, Lord Stoddart of Swindon, he was extremely careful to say that this would have to be only at the end of extremely careful diplomatic discussion. It could not simply be a question of kicking sand in the commissioners’ faces, but there would be a case in those circumstances for saying, “Look, I am afraid we must ask for a derogation”. To secure that, they would need the power to implement the order differently from how the Commission had perhaps assumed.
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That does not seem to go against this country’s obligations, particularly under the 1972 Act, to the European Union in any way, but provides the Government with an avenue of escape. The noble Lord, Lord Goodhart, said it would clearly be controversial and entirely wrong to do it as an order under the Bill. But the point is that this Bill will be an Act, and the Government would clearly only do it if it had wide support in the country. They would say “We are not going to do it as the Europeans apparently expect; we have negotiated that, it has been agreed, and we now have the power to do it differently”. In those circumstances, I see my noble friend’s amendment as restating an important principle—the sovereignty of Parliament—in a way that gives the Government avenues of escape, so that we can avoid some of the absurdities which have landed burdens on industry and others in the country.
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