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Lord Pearson of Rannoch moved Amendment No. 13:
The noble Lord said: Amendment No. 13, and Amendment No. 50 which is grouped with it, stand also in the names of the noble Lords, Lord Stoddart of
Amendment No. 13 would exclude a new article, an article which by coincidence and not, presumably, by diabolic intervention, is also numbered new Article 13 in the proposed Amsterdam amendments to the treaty establishing the European Community. New Article 13 extends the competence of the EU to allow the Council, acting unanimously to,
Amendment No. 50 would subject the old Article 6, now Article 12 of the Treaty establishing the European Community, to a report from the Government setting out its implications for the United Kingdom, such a report to be approved by both Houses of Parliament. New Article 12 prohibits discrimination on grounds of nationality.
To take Amendment No. 13 first, which refers to new Article 13 of the treaty, one has to acknowledge with as much gratitude as one can muster--that may not be much--that the extension of the EU's powers to allow it to join forces in this country with those armies of political correctitude of the sex, race and class brigade, is at least subject to unanimity in the Council--in other words, we could veto any action which the rest of the Council might wish to take but which we do not, although our veto would be subject to all the usual horse-trading which goes on in Europe.
Nevertheless, it is yet another glaring example of the way in which the EU machine advances step by step into areas which were before subject only to our national jurisdiction, and which should remain so. It is yet another example of the working of the "salami slicer" of my noble friend Lord Tebbit. Incidentally, I am still waiting from our earlier debates in Committee for the Government to give us any examples of where power has been returned to national parliaments in contradiction of the doctrine of the acquis communautaire. No doubt we shall come back to that question when we reach our old friend subsidiarity in the group of amendments which begins with Amendment No. 26 on the Marshalled List, but perhaps I may mention it again in this context. Perhaps the answer is that that is just not how salami slicers or the EU work, which may be why the analogy chosen by my noble friend Lord Tebbit is so accurate. Once another juicy slice of national sovereignty has been severed, they are not capable of putting it back again, even if they wanted to do so which, of course, they do not.
I trust that your Lordships will forgive me if this all seems very obvious. It would be nice to hear just a few examples from the Government, compared to all the thousands which go the other way, which might go to show that the sovereignty of the United Kingdom is not on a salami slicer after all. If they cannot do that--I am pretty sure that they cannot--perhaps they would at least admit it. Then we shall know where we stand and openly acknowledge the true nature of the Treaty of Rome.
This is not a particular criticism of the present Government. The problem was exactly the same with the Single European Act and the Treaty of Maastricht. Indeed, in 1993 some of us posed exactly the same question to the previous government in our debate on the Treaty of Maastricht, without the vestige of a satisfactory answer. Instead, we were told that subsidiarity would be our shield of defence against the further erosion of national sovereignty which of course it has not been, nor could it be.
I come to the detail of new Article 13, from which I have quoted. I should like to ask the Government a few questions. First, why have they felt it necessary to allow the European Community to extend its competence into these areas? For instance, what is wrong with our own Race Relations Act or similar legislation? Is it in any way inadequate? If so, could it not be easily amended in this Parliament? For instance, is it felt that we do not do enough about ageism? For those noble Lords who may not be familiar with that expression from the vocabulary of the politically correct, it means that we should not be discriminated against just because we are getting on a bit. I am sure that a number of noble Lords, myself included, would support something along those lines, but do we need Europe to do it for us?
What does this article actually mean? What did the Government believe that it meant when they signed up to it? Can the Minister be so good as to tell the Committee exactly in what kind of "appropriate action" the Government foresaw themselves joining forces with other members of the Community to combat all of these evils? What would be an "appropriate action", and why could not each of us take it on our own if we wanted to? Can the Minister explain to the Committee exactly what is the difference between a religion and a belief? Have the Government thought through some of the possible ramifications of this dilemma? For instance, if one is a well-known Christian evangelical will one be able to sue the national council of atheistic marxists if it refuses to give one a job as membership secretary? Who will decide whether the Moonies or other less desirable sects deserve Europe-wide protection under this clause? What about witchcraft? Can the Minister tell the Committee what are the bounds of decency, and therefore presumably of protection under this provision, of sexual orientation?
I hope that the noble Minister will forgive me but I am trying to understand what this clause may come to mean. I do so against the background of one of the good things that the present Government seek to do in the field of education. One of those good things appears to be an appreciation of how much damage the
I understand that part of the inspiration for new Article 13 may be a response by the Community to the so-called Kilanker case in Germany which overthrew an attempt to put into law positive discrimination in favour of women; in other words, we may be looking at an attempt by the EU to start to enshrine positive discrimination in favour of certain groups taking precedence eventually over the existing national legal order. Can the Minister assure the Committee that this is not part of the intention behind the article?
When the Minister comes to consider his answer will he remember that, although the new article is protected by unanimous voting, already Directive No. 7605/97 aims to combat gender discrimination in the workplace? Such directives can already be passed by qualified majority voting under the social chapter, which I fear the Government may one day regret having signed. Directive No. 7605/97 (if I am not mistaken) enshrines the principle, contrary to British law and natural justice, that the burden of proof is to be divided between plaintiff and defendant. It also introduces into our law the rather woolly concept of indirect discrimination. My noble friend Lord Moynihan alluded to that kind of legislation in his speech on the previous group of amendments.
That is the kind of legislation, is it not, that gives rise to the recent case in this country of a pregnant woman who applied for a job which she knew that she could not do because it required her to lift heavy loads? The employer was as a result forced to pay compensation for not giving her the job. The Minister may recall that that case has been raised in Written Questions by my noble friend Lord Vinson, from which it appears clear cut and apparently true. Does the Minister agree that that is the kind of case which must make us very worried about new Article 13 and that therefore Amendment No. 13 is reasonable in seeking to exclude it from the treaty?
I turn to Amendment No. 50. This deals with the previous article in the treaty, Article 12, by making it subject to a resolution of both Houses of Parliament. The article simply prohibits any discrimination on grounds of nationality:
The first matter that we must look at is the procedure to be followed under new Article 251. That article turns out to be our old friend Article 189b in the Treaty of Maastricht which sets out what is known as the co-decision procedure, except that the procedure has been slightly speeded up in the Amsterdam amendments. The co-decision procedure is not the innocent creature that many people suppose it to be. In effect, it allows the Council acting by qualified majority vote to pass into nationally binding law any Act with which the European Parliament agrees. It is only if the European Parliament does not agree with a law or Act supported by qualified majority vote in the Council that the so-called common position procedure is then adopted.
The common position procedure is just about the silliest way of taking a decision or not (as the case may be) that has yet been devised by mankind, as far as I can see. But I need not weary the Committee with it now. The danger to the United Kingdom in Article 251 lies in the stark fact that we can be out-voted in the Council, as we often are, and then our only protection is the possibility that the European Parliament may agree with us against the majority of the Council who have voted against us. I would have thought that that eventuality was so unlikely as to provide very little protection. Therefore, for practical purposes I fear that we must accept that Article 251, which governs Article 12 of the treaty, subjects us to a qualified majority vote in Council; in other words, no veto.
One then must look pretty carefully at what Article 12 may really come to mean. What it says is fairly stark:
the Council shall prohibit any discrimination on grounds of nationality. To boil it right down, the Council must prohibit all discrimination on grounds of nationality, unless there is something in the treaty which says that it need not do so. What does this mean? Of course, we must look to the Minister to enlighten us. I appreciate that this was largely the version of the Treaty of Rome which predated the amendments agreed at Amsterdam, although that does not give comfort to many of us.
I give the noble Lord an example of what it may mean as far as I can see. Might it mean that in future there is to be no difference between Spanish, Dutch or English fishermen under the common fisheries policy? If it does not mean that, can I ask the noble Lord why it could not do so? If it does mean that there will be no such difference, it would of course be very serious and would make the CFP even more of a free-for-all for those who cheat, and a shambles, than it is at the moment.
In asking that question, I refer to a Written Answer that I received from the noble Lord, Lord Donoughue, on 24th April. He said that the legal basis for the CFP was to be found in Article 3 of the EC treaty, which merely states:
Page 1, line 13, after ("2") insert (", other than paragraph 7 (provisions of the Treaty establishing the European Community relating to combatting discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation),").
"take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation".
"The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination".
27 Apr 1998 : Column 50
Article 251 is also without prejudice to other special provisions in the treaty.
"Within the scope of [this] Treaty, and without prejudice to any special provisions contained therein",
"The activities of the Community shall include a common policy in the sphere of agriculture and fisheries".
27 Apr 1998 : Column 51
I would of course be grateful if the Minister would care to comment on that point. But whatever the answer is--it may have great significance for the legality of the CFP--that is not strictly the subject of the amendment. The noble Lord, Lord Donoughue, then said that the rest of the legal basis for the CFP is to be found in Articles 39 to 47 of the EC treaty. Members of the Committee will understand that I am looking through these articles, trying to find some special provision in the treaty which will exclude the extinction of nationality under the CFP.
I have read through the articles and can see no mention of nationality. Indeed, the words "fish" or "fisheries" do not seem to appear in them at all. Even in Article 38, which the Minister did not mention in his Answer as forming part of the legal basis for the CFP, the word "fisheries" occurs somewhat obliquely as part of the meaning of the expression "agricultural products". In fact, one is left wondering whether the CFP does indeed have a legal basis in the Treaty of Rome.
The question for the Minister when replying to this amendment, however, is whether Article 12, potentially, or indeed actually, removes the distinction of European nationality under the CFP, or has the capacity to do so. I am aware that the CFP is labouring under a derogation at the moment, but surely that cannot for long override the clarity and authority of Article 12. If the Minister can assure us that I am wrong about the specific example of the CFP, that would of course be good news, but, if so, can he assure the Committee that this article will not come to have other similar disadvantages for our national identity and for our national independence in the future?
In other words, is it possible that Article 12 may pave the way for the virtual disappearance of European nationalities in the Treaty of Rome? Until we hear the Minister's answer, I have to hope that the Committee will support the amendment. I beg to move.
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