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Lord Barnett: My Lords, before the noble Lord sits down, he overlooked telling us how many amendments have been proposed to the draft constitution.

Lord Blackwell: My Lords, I am sure that the Minister will be able to respond to that in due course. However, I believe that more than 1,000 amendments have been proposed. As I believe that many of them would work in opposite directions, I leave it to the noble Lord to imagine how many will be incorporated. My Lords, I beg to move for Papers.

3.35 p.m.

Lord Grenfell: My Lords, I thank the noble Lord, Lord Blackwell, for initiating this debate. He has chosen a very significant subject and it is a good moment to discuss it. I shall be brief because I speak in my capacity as the chairman of the European Union Select Committee. I shall accordingly confine myself in this debate to outlining some of the work that the Select Committee has undertaken on the convention which I hope will be of assistance to your Lordships' House. As chairman of the committee I obviously cannot engage in the more political aspects of this afternoon's debate—although the noble Lord's Motion in other circumstances would have tempted me to do so. Although that self-denying ordinance is almost physically painful, I shall stick to my role as chairman of the committee.

I start by recording my thanks to the members of our Select Committee, its sub-committees and our staff for the extraordinary effort that has been put into keeping the convention issues under review on behalf of your Lordships' House. I also take this opportunity to thank very warmly our two representatives on the convention, the noble Lords, Lord Tomlinson and Lord Maclennan of Rogart—who I am pleased to see in his place on the Front Bench. They have done an enormous amount of hard work on behalf of this House in the convention. I thank them also for the time that they have taken to report back to this House; it has been extremely important and valuable. They have reported to our Select Committee and to the joint committee of the two Houses, and they have also done so less formally. We had an excellent meeting last Monday in the Moses Room, open to all Peers, where our two representatives came and enlightened us on what was going on in the convention. Without that I think that our continuing review of the convention issues would have been far less well informed.

I take the opportunity also, if I may, to thank the noble Baroness, Lady Scotland of Asthal, for her very able work in alternating for the Government's Minister on the convention, Peter Hain, who has also been working assiduously at the convention. I know

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that she has contributed with her usual high level of forensic skill in the convention as she does in other forums.

As I said, I intend only to summarise for your Lordships some of the work that your Select Committee has been undertaking. We published a short report back in July which was debated in your Lordships' Chamber in January. Our recommendations then included noting that this Parliament should have a full opportunity for debate on the convention's work after it was concluded but before the IGC in 2004—that is to say, during the period of reflection. In light of the continuing speculation over the timing of the completion of the convention's work, to which the noble Lord, Lord Blackwell, referred, I hope that the Minister will confirm that that proposal will not be lost from view.

Our work since then has continued. There has been a recent spurt of activity as we published reports on the emerging draft treaty articles and on the reports of the working groups. I commend the commentaries on the treaty articles. In each case we have set out what the Praesidium has proposed and how it relates to the existing treaty. We then offer our own commentary, in some cases noting that what is proposed, however apparently controversial, is in fact already in the treaties—a fact that has often been overlooked—and in other cases we suggest changes to proposed articles or even their outright rejection. I give two illustrative examples: we suggest changes to the proposed extension of co-decision in place of the present legislative procedure; and we suggest deletion of the proposal for the creation of a European public prosecutor.

For the work on the draft treaty articles we are greatly indebted to the House's second counsel, Dr Chris Kerse, who is legal adviser to the Select Committee. He has performed a formidable task with both skill and speed.

We have also produced a short report on the protocols on national parliaments and subsidiarity. In it we have suggested strengthening the scrutiny role of national parliaments to bring it more into line with the proposals from the working groups than those in the Praesidium's own text. In addition to supporting the proposed "yellow card" on subsidiarity—by which a number of national parliaments could together force the Commission to reconsider a proposed piece of legislation on subsidiarity grounds—we have also supported the "red card" proposal put forward by Praesidium member Gisela Stuart of another place. We tackled head on the arguments that that would delay the legislative process or weaken the Commission's right of initiative. We concluded as follows:

    "The successful marshalling of the necessary majority to activate the 'red card' will, in our view, be a very rare event. The fact that so many national parliaments were concerned about a proposal might well reveal a serious concern that would need addressing. Any effective early warning system would of course require an effective mechanism to allow national parliaments to exchange information".

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We also agree with the working group that it is important that national parliaments should have the possibility of challenging a measure in the Court of Justice on subsidiarity grounds. The proposed protocol accordingly needs strengthening, as Gisela Stuart proposed, to give national parliaments the right to bring proceedings for violation of the principles of subsidiarity and proportionality.

In a separate Select Committee report entitled Review of Scrutiny of European Legislation which will be debated in the near future, we have also proposed that the powers of the European Parliament over comitology matters should be strengthened. I should be grateful for the Government's latest view on how that idea is running in the convention.

More generally, we have supported greater openness in the Council—that is an extraordinarily important issue—when legislating, and better provision of information to national parliaments (including by electronic means in the interest of speed and efficiency), although managing that information may well require the House to provide greater resources, and I hope that it will.

We have also continued to press the Government on the thorny question of the so-called "provisional agreements". This, however, is more properly a matter for our separate debate on the scrutiny review, so we shall return to it in due course.

More Select Committee reports on the convention were agreed in our committee last week: on a social Europe; on defence and external action; and on freedom, security and justice. There is more to come over the coming months as the convention's work unfolds.

It should therefore be clear that there is a great wealth of information now available to the House on convention issues. I therefore earnestly hope that the House can always debate these issues in an informed way. It would ill behove your Lordships' House, endowed as it is with Members of great expertise and justly proud of its role as an effective scrutinising Chamber, to discuss such significant issues with inadequate recourse to the facts. I believe that we need to set an example for public debate on matters which so profoundly affect our nation and our people. If we cannot, or will not, hold a truly informed debate here, how can we expect the country to do so?

I therefore hope that the House, and those outside it who share our concerns and our interest in these matters, will enjoy the fruits of our labours, both in this and in other debates and in the work of our committees, all of which, I emphasise, are freely available on our Parliament's website. I look forward eagerly to the rest of the debate.

3.44 p.m.

Lord Howell of Guildford: My Lords, I rise early in what will be a very interesting debate not just to congratulate my noble friend Lord Blackwell both on initiating the debate and on his excellent speech with which I very largely concur but also to congratulate the

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noble Lord, Lord Grenfell, on the superb work which the European Union Committee does in keeping us abreast of the unfolding stream of proposals from the convention praesidium on the European constitution and other matters.

I wish particularly to emphasise the extreme importance that we on this side of the House attach to this whole issue, which we believe to be one of national and constitutional significance. Frankly, I believe that issues of this kind at this level of constitutional importance should be debated in government time. I hope that they always will be in the future. As it is such a large issue we shall return to it again and again and there will be a lot more to discuss, and probably very soon too, but time is not with us. I hope that it will be useful if I try to set out the views of some of us on this side of the House about the whole matter.

First, we are told—my noble friend Lord Blackwell touched on this—that this is just another treaty in line with the various treaties amending the original Treaty of Rome, and therefore that it should be dealt with in the way that other treaties have been dealt with by normal procedures and decided by Royal prerogative and so on. That is not correct. The proposed constitutional treaty, however it is amended, will be a blockbuster. It will replace all previous European Union and EC treaties from the Treaty of Rome onwards. So, it is not just another treaty amending existing EU legislation. It will be much the most important and far-reaching piece of EU legislation ever to come before us, giving the EU institutions a new source of legitimacy—this goes beyond the Treaty of Rome—above the nation states.

My noble friend Lord Blackwell mentioned turning things upside down. The proposed constitutional treaty turns upside down the whole assumption that the democracy and legitimacy of the European Union institutions come from below and are ceded to them and gives a new legitimacy imposed from above. The draft constitution is a vastly comprehensive document—although we have not seen all of it yet—including a massive new charter of social rights—which we were told would not be grafted on to it, but will be—and just about everything else except God and space. Perhaps space has got into it now but I think that, so far, God has not.

The Government say not only that it is just another treaty but also that we need not worry ourselves because it is all yet to be decided. That is not correct either. As my noble friend Lord Blackwell rightly made clear, many of the key issues appear to have been agreed by the Government and are government policy. The Prime Minister called for a proper constitution in his Cardiff speech. The Foreign Secretary says that he wants one and even the noble Baroness, if I may say so, has confirmed that the Government want an EU constitutional treaty provided—I believe she said—that it is a clear text and a reference document for the public—something which I am afraid she will not get if we are to believe the excellent Gisela Stuart who has been trying to get such a thing but has concluded that what is coming will be more complex and more remote.

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In short, let us hear no more of the point about the future. This area of the EU constitution is already government policy and we should debate it as such. It is fast setting in concrete. We have only a few weeks left on the present timetable before the matter will be put to the intergovernmental council. As the noble Lord, Lord Grenfell, mentioned, it could be postponed. It would be interesting to be told before the end of the debate whether there will be a postponement and what that will do, if the matter is postponed until the autumn or even until next year, to the whole enlargement timetable and to the interests of all the applicant states who are watching this matter very closely.

There is another argument; namely, that we are wrong to be concerned because the measure will clarify the roles of the nation states and entrench them and that, anyway, foreign and security policy, as very important national areas, will not be encroached upon by the Community structure. But the convention and the draft as they stand do just that. As David Heathcoat-Amory MP, who is on the convention, has pointed out again and again, they raise important new doubts about the national role in a range of shared competences, as mentioned by the noble Lord, Lord Blackwell, including security policy, transport, social policy, energy and many others. Far from decentralising power, clarifying the role of nation states and bringing Europe nearer to the citizen—all reasons that we were told as to why the convention had to go forward with the constitution—it appears that the draft at any rate is bringing massive new powers to the centre.

For instance, we were told in Article 13 that the Union shall co-ordinate economic policies. That goes far further than the previous commitment by the Union to taxation, budgets and so on. We are told that subsidiarity will save us. The noble Lord, Lord Grenfell, touched on that issue with great expertise. In fact, what has come up so far is not what Gisela Stuart and other Members of Parliament argued for with heroic vigour, which was the power of our national parliaments to reject the competences and demands of the Union when it is felt that they intrude on the national scene. Instead, there is simply a procedure for delaying the process and putting the whole matter back to the Commission for review, which when held can simply allow it to go on as before.

Then there are new categories that noble Lords will have to get their minds around in due course if they have not already, such as the proposed "non-legislative" Acts. What are they? How does one have a non-legislative Act? According to the draft constitution, those are apparently to be issued by the Council or the Commission in the exercise of their executive powers. There is not much decentralisation with that.

As has been mentioned, at the centre there is to be a single pillar for everything. Justice and home affairs—freedom, security and justice, as it is now called—foreign policy and defence policy will all be under a single pillar. All will presumably—we need clarification on the subject—be under the jurisdiction

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of the European Court of Justice. It is goodbye to a separate intergovernmental pillar. That is proposed to go, and has apparently been agreed to go. If there is any doubt about the centralising effects on the foreign policy side, we have the agreement and support of the Prime Minister for foreign policy unification, carried forward under a new euro-Minister of foreign affairs who would report to and be involved with both the Council and the Commission. That would bring the Commission into the heart of foreign affairs business.

There are many other aspects of centralisation including the commitment—again, this has been agreed all round; it is policy—for a single legal personality for the European Union. As the noble Lord, Lord Blackwell, said, that makes the European Union "sovereign" and gives it a place or the right to a place in all international organisations, presumably including the United Nations. Before anyone says that that is a fantastic proposition, I shall quote in aid the leader of the Liberal Democrats in the European Parliament, Mr Watson, who tells us that Europe needs only one seat at the UN, so that,

    "Europe's world view would prevail",

whatever that is.

There is to be a European Union justice and interior Ministry and a European Union attorney-general. The noble and learned Lord, Lord Goldsmith, had better look out for his job. Finally, although it is quite true—the noble Baroness reminded me of it the other day—that the superiority of Community laws is of course already established by treaty and court rulings, it will now be imposed from above by the new European Union constitution. That is a new and quite different proposition.

We on these Benches therefore believe that if the constitution idea in anything like its present form is backed by the Council of Ministers next June—it may be later; we do not know—the Government should indicate now that if necessary they would be prepared to use their veto. If they none the less let it all slip through, a referendum in the United Kingdom on the proposed constitution is absolutely essential. Indeed, a referendum will be available to several other members of the Community, so it should be available in this country as well.

As we know, the constitution is a core part of a predominantly French-influenced plan to make the European Union a counterweight to the United States of America. As we have seen in recent days, it is plainly inspired by feelings of rivalry and, I am afraid, anti Iraq war thinking on a very intense level. If it were in place today, the UK's position on Iraq could well be declared illegal under European law. It will certainly make the whole question of repairing the trans-Atlantic alliance infinitely harder. There will be no American alliance with a France-dominated old Europe of this kind. New bridges will have to be built. I believe that the Prime Minister himself recognises that.

Jack Straw implied this morning that we must forgive and forget the French and German antagonism of recent days. About the forgiving, I totally agree. Of course we should forgive. They are

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great nations and we should understand their fears. However, we should be much more cautious on forgetting. What we have here is a reassertion of centralised old-European thinking. In taking up the stance that they have, I believe that France and Germany, great nations as they are, have made a huge geo-political mistake which will damage not only them but us all. Indeed, it is already doing so.

The concept of a fixed, written constitution is anyway a fossilised and fossilising idea. It is trying to give fixity to what is fluid and ever-changing, more so than ever in the network age in which we now live, in the relationships between nations. As the great constitutionalist Sidney Low long ago pointed out, the essence of the British constitution has always been that it is in a constant state of development, which would be frozen by the kind of proposals now being aired at the convention. We should fight against this power-seeking, rigid, European construct and, in case we are accused of being negative, fight for a democratic Europe of nation states—nation states on which the entire international order, when it is restored more properly than at present, ultimately rests and always will.

We want a place at the table in Europe, but it must become a table where, instead of constantly trailing behind other big countries' conceptions and agendas and too often losing out, we make the running at last with our ideas and initiatives for the Union's further evolution, in very close concert with all the smaller and newer states—which incidentally have rightly refused to keep silent during the debate. That is the essence of the new Europe. Perhaps at last the time has come to make a reality of that far better vision.

3.58 p.m.

Lord Maclennan of Rogart: My Lords, I join the noble Lord, Lord Howell of Guildford, in expressing warm appreciation to the noble Lord, Lord Blackwell, for initiating such an important debate at an extremely appropriate time. I also thank the noble Lord, Lord Grenfell, and the European Union Committee. I do so not only on my own behalf and that of my colleague in the convention, the noble Lord, Lord Tomlinson, but on behalf of the wider House and the wider Community.

In particular, I single out the work of the Select Committee's Sub-Committee E for the extraordinarily helpful analysis of the draft articles of the convention which is being brought forward with a speed that shows great dedication. It is widely appreciated inside the convention, before which the noble Lord, Lord Tomlinson, and I have placed the documents as they have appeared. The work of the Select Committee obviates the necessity for me to make a speech in explication of the draft articles of the proposed constitutional treaty. That has been done with an authority and sense that will commend itself to all Members, whatever their point of view.

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It is worth recalling at this stage the mood of the 15 member governments when the Convention on the Future of Europe was set up. In the Laeken declaration of December 2001, they said:

    "The Union stands at a crossroads, a defining moment in its existence. The unification of Europe is near. The Union is about to expand to bring in more than ten new member states . . . thereby finally closing one of the darkest chapters in European history".

It may be difficult to keep a sense of that perspective as we survey the present disarray of the European Union in the face of the Iraq war. It is, however, the duty of those engaged in the work of the convention not to be blown off course by those events. I do not believe that we shall be.

The chairman of the convention has sensibly postponed until May the publication and discussion of the draft articles on the CFSP and defence. By then, the problems will not have gone away, but cooler calculation may be more possible than it is today. Yesterday, under the ESDP, the Union took over responsibility for the policing of Macedonia. Preparations for Bosnia next year are now in train. The work to which we have set our hand must go on.

Not much more than two months is left of the time allotted to the convention to complete its work. The chairman has expressed concern about slippage and time. In my judgment, it would be unwise for the convention to go beyond the summer break. The issues to be decided have been well opened up. Conclusions would not be assisted by the availability of more time for debate. The convention has acquired its own momentum which should not be dissipated.

Although today we are debating work in progress—and what is yet to be proposed is certainly as important as what is now on the table—the shape of what is to come is, I believe, already clear. What is most striking is how closely the convention has attempted to follow the Laeken lead given by member governments. The mandate set out there had four broad heads: to attempt a better division and definition of competence in the European Union; to simplify the Union's instruments; to strengthen democracy, transparency and efficiency in the European Union; and to consider the basic features which might be adopted as a constitutional text for the Union.

It would be premature to predict how each of those challenges will finally be met. We shall not know until May how the praesidium of the convention will respond to the many amendments—more than 2,000 now—proposed to its initial draft articles. But it is not too soon to point out some striking areas of agreement.

In the division of competences, the fundamental principle of conferral is adopted in draft Article 8.2. I quote:

    "The Union shall act within the limits of the competences conferred upon it by the Constitution to attain the objectives the Constitution sets out. Competences not conferred upon the Union by the Constitution remain with the member states".

On the issue of the flexibility clause to which the noble Lord, Lord Blackwell, sensibly drew our attention, I say in passing that there is already a flexibility clause

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in the existing treaty—Article 308—which, in many respects, is more defective than the one before the convention.

Simplification would be assisted by reducing the legal instruments used by the Union from 15 to five, dropping, for example, in the field of justice and home affairs the use of the "convention"—a clumsy and largely ineffective instrument.

We await the praesidium's draft articles for the reform of the Union's institutional architecture. But already there are pointers within the convention as to how the challenges of democracy, transparency and efficiency may be addressed. For example, the European Parliament's right to "call back" delegated legislation is likely to be secured. The requirement that when the Council is acting in a legislative capacity its proceedings should be in public, as called for frequently over the years, is likely to be strengthened. The efficiency of the Union's actions is likely to be enhanced by the more general use of co-decision with qualified majority voting.

The basic shape of the constitutional arrangements is more advanced than might have seemed possible a year ago. The charter of rights will be incorporated with safeguards. The noble Baroness, Lady Scotland, has played a significant part in that. The charter of rights is to be treated as a legal document. With a single legal personality, the Union will be empowered to accede to the European Convention on Human Rights. Citizenship of the Union will be provided for, and the principles of subsidiarity and proportionality will be properly constitutionalised. It is of course a matter of political debate as to whether the proposals go far enough. In my judgment, as they stand, they have much to commend them. The extent of the national parliaments' right to be informed, to be consulted and to warn will be spelled out.

Much of what is being done is not new, as the noble Lord, Lord Grenfell, pointed out. For example, whether or not the word "federal" is employed to describe what has been called "the community method"—or, more accurately, "methods"—the Union's mode of operation will remain as prescribed by the agreement of the member states, in some cases ratified under their national constitutional provisions by a referendum of their citizens.

In the United Kingdom, the use of the referendum in constitutional matters has a relatively short history. In the early 1970s, I was opposed to its use to settle the issue of Britain's membership of the European Communities. That referendum, however, did serve some purpose. It did not prevent opposition parties in the 1980s and 1990s striking attitudes remarkably at odds with their performance in government; nor did it end the bilious insularity of much British newspaper commentary on the European Union's progress. It did, however, allow us some time to put our own commitment to the test and to judge whether or not the Union in its economic purposes should be viewed positively or negatively. Today, few would quarrel with the positive verdict of successive governments.

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Should we repeat the referendum test at the end of the convention process? We are already committed to a referendum—long favoured by the Liberal Democrats—on the euro. It is our general view that significant constitutional change, which is intended to provide a settlement to outlast changes of government, should be the explicit consequence of either a general election mandate or a nation-wide referendum.

It might be possible to provide for a single referendum on the euro and on the proposed constitution for Europe to take place at the same time. Certainly, a positive vote in such a "double-hatted" referendum, to coin a phrase, might be a liberating—even an exhilarating—experience. It could free this country from the carping, backward-looking questioning of our European identity. It might enable British governments in future to get on with the job of working in true partnership to achieve the common purposes of which this rich, old and experienced continent of ours is capable.

There are, however, two unresolved questions, and they cannot be answered today. It is possible that the treaty agreed at the end of this process will come too late in time to be linked in the United Kingdom with the decision on the euro—or perhaps too early.

There is another possibility. The constitutional treaty may turn out not to be a new beginning despite its apparent form and the pulling together of commitments already entered into the four treaties which have preceded it. The subsequent IGC may experience a failure of nerve as much as a failure of judgment and reduce what is proposed to little better than a tidying-up exercise. Were that to be the outcome, it would scarcely require the arbitrament of a popular referendum. It is not too soon to raise the issue—I am grateful to the noble Lord, Lord Blackwell, for that—but it cannot be concluded today.

There is a risk of failure of nerve. If the Union simply wants to ensure that its continuing economic purposes are subserved by its way of reaching decisions, there is some need for change, but not for much. But the disarray over Iraq may change the goals. From very modest beginnings and over a 10-year period the European Union has dared to express a larger political goal for itself. At the July session of the convention it was widely expressed as the wish to exercise in the global community a political influence commensurate with our economic strength. Such a responsible role seemed to many like sense for a community of nations united in their attachment to democracy, human rights and the rule of law. Iraq has spectacularly demonstrated the shortcomings of the traditional diplomatic method as the way of delivering Europe's self-proclaimed goals. Too much of Metternich and not enough of Monnet, as Alain Lamassoure, one of the French MEPs, put it.

Political will is the key. If we do will the end of greater political influence, we should listen to the evidence of Europe's much-respected High Representative, Javier Solana, given to the convention in October. It is not an easy message. He said,

    "It means working harder to achieve common EU positions, even when starting points may be divergent, and it means a greater readiness to mobilise national resources in the pursuit of EU aims".

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Ultimately, our effectiveness as a global actor will depend on the willingness of member states to share analysis and set joint priorities. It also depends on their commitment to act together and, above all, to share the burdens fairly. That is what Javier Solana called coherence and solidarity among member states.

Polls of public opinion in Europe, as in this country, have consistently shown that, in principle, Europe's citizens are supportive of such a role for the Union. To conduct such a role effectively and democratically would indeed require significant new European constitutional underpinnings from which Britain and some others may, however, choose to hang back.

But in this area, Europe will not necessarily proceed at the rate of the slowest. The debate in the convention may focus on enhanced co-operation and the use of constructive abstention to advance common decision making. Outside the convention it is reasonable to anticipate that others will not wait for us. The summit call by Belgium for 29th April has been heard. Schengen provides a precedent for a two-speed Europe. Like my colleagues in your Lordships' House who recently visited Washington DC with Sub-Committee C of the European Union Committee, I am not attracted by playing the role of "little Sir Echo" to the Pentagon policymakers. If we would be true transatlantic partners, whose voice is not merely heard but sometimes heeded, we had better not find ourselves left behind by Europe. Therein would lie the true threat to Britain's independence.

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