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Humanitarian principles will also be enshrined in European Union law, ensuring that humanitarian aid is allocated purely on the basis of need; and by cataloguing existing rights for the European Charter of Fundamental Rights, the charter provides an accessible statement of the existing rights and principles which the Union’s institutions should respect when legislating. The UK has secured clear and legally binding guarantees as to the effect of a binding charter, including a legally binding protocol. These safeguards ensure that the legal status quo for the UK remains.

A more effective single market, underpinned by strong social values, is essential to our response to globalisation. Across the European Union, we share the same global economic challenges, and shared action must be part of our response. The Lisbon treaty can help us to do that more effectively by creating new legal bases for the creation of a single European Union patent, allowing British companies to protect

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their ideas across Europe. It also allows the creation of a European research area—a single market in knowledge—to make it easier for researchers to take their talents to other countries.

We also want to act on the challenges of climate change and energy security, which no country can tackle alone. The Lisbon treaty makes tackling climate change an objective of the European Union for action within Europe and around the world. These are the global challenges in the 21st century, and the European Union is crucial to tackling those challenges effectively. That is why the Government have a positive agenda for the European Union, which the Lisbon treaty will help us to deliver for all the reasons that I have set out.

We also need greater accountability and transparency over how we act through the European Union. The Lisbon treaty will help to deliver this. The institutional changes will deliver a simpler, more efficient organisation and will strengthen the ability of member states to set the agenda. A full-time European Council president, appointed by the member states and answerable to them, will bring greater continuity and drive to delivering the agenda that we set in the European Council. A streamlined European Parliament will have to approve European Union legislation in more policy areas. A simplified voting system based on population size will see our share of the vote increase from 8 per cent to 12 per cent. For the first time, national Parliaments will get a direct say in making European Union laws. If the majority of national Parliaments oppose a proposal and national Governments of the European Parliament agree, it falls. Again, for the first time, the Lisbon treaty defines the European Union’s competences, setting out explicitly where the European Union can and cannot act. The treaty explicitly states that the EU has only those competences expressly conferred on it by the member states through the treaties.

I look forward to debating the treaty over the coming weeks. The European Union Select Committee report provides a detailed and thoughtful basis for these debates. I am most grateful for the painstaking work that was undertaken to provide such a comprehensive analysis of the Lisbon treaty. The Government welcome the committee’s thoughtful and forward-looking report and will aim to respond in full to its findings well within the committee’s deadline. I also welcome the report of the Constitution Committee, published on Friday, which makes an important contribution to the debate we will have. Again, the Government aim to respond in full well within the standard deadline.

Some seek to argue that the UK would be better off outside the European Union or would see more benefits from closer co-operation with other partners, such as the United States or the Commonwealth. But our membership of the European Union does not need to be at the expense of co-operation with other countries and other international organisations. These are complementary. I am clear that the UK benefits from its membership of the EU by pooling sovereignty in areas where this is to our advantage. The UK’s relationship with its EU partners has added depth. This unique relationship gives UK businesses access to the single

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market and UK citizens the freedom to live, work, study and travel across the European Union. It also provides certainty, guaranteeing standards and rights across the European Union. It is of fundamental economic importance to the UK.

This country should be fully involved and should be giving the lead to tackle the challenges of the 21st century, together with our European partners. The Lisbon treaty will help the enlarged European Union to do that more effectively in the future. That is why the other member states support it, why the Government support it and why I urge noble Lords to support this Bill today. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Baroness Ashton of Upholland.)

12.52 pm

Lord Howell of Guildford: My Lords, I believe that the whole House will be extremely grateful to the noble Baroness the Leader of the House for the characteristically commonsensical way in which she has set out the provisions of this highly complex, very extensive and very controversial Bill.

We now begin the long task of examining the Bill. Although there will be many disagreements ahead of us on how to improve it, I hope that we will at least be agreed on one thing. The Bill deserves the line-by-line scrutiny that the Prime Minister urged at the start but which, for whatever reason, it did not receive in the other place, where debate, sadly, was curtailed. As the Times remarked, we need a “more honest” debate in the Lords. The Liberal Democrat spokesman on foreign affairs in the other place rightly hoped that we would “spell out the safeguards” for Parliament in the Bill, which we will certainly need to do. Those big themed debates in the other place, which excluded more than half the amendments originally tabled, were, as the Spectator rather unkindly remarked, a parliamentary equivalent of a PowerPoint presentation. I do not think that they did justice to our parliamentary system. We can do better and I hope that we will.

We cannot alter the treaty, which was signed up to with a certain display of reluctance by the Government, but we can and ought to make sure that it fits in wisely with our laws, our systems of accountability and the general character and customs of our country, to the greatest benefit of, and the least harm to, the British people. Surely it is our role to ask the other place to think again about certain aspects of such complex legislation—a procedure that we can flatter ourselves we do extremely well.

I come straight to the central issue of our debates in the coming weeks: whether this time this treaty—variously called the reform treaty, the renamed constitutional treaty or the Lisbon treaty—embodied in the Bill is a constitutional document, similar in effect to the last one, which as we all know came to grief; whether it is of constitutional significance, with all its protocols, declarations, individual opt-outs and opt-ins negotiated not only by us but by several other nations and including our own so-called red lines; and, therefore, whether it merits giving, as the last one clearly did, the British people a say in a referendum,

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as the three parties promised the electorate in good faith—I assume that it was good faith—in 2005. In short, is it mere semantics to deny that this treaty is a near replica of the last one, which called itself a “Constitution for Europe”, or is this one, this time, truly and definitively different?

We can and no doubt will trade endless opinions and quotations either way across the Floor in coming weeks on that question. We each have long lists of authorities; I suspect that my list is even longer than that of the noble Baroness and her colleagues. On the one hand, I have here a string of European Presidents, Prime Ministers and Commissioners, all confirming that this treaty is similar in all but name to the previous constitutional treaty. We have legal experts, politicians and journalists galore who confidently state that it is 90 per cent or more the same. On the other hand, we have the British Prime Minister, the Foreign Secretary and the Lord President, in her own charming way, all flatly denying that it is a constitution of any kind.

I do not want to spend too much time trading these different views, but I was particularly struck by the comments of the so-called father of the EU constitution, Valéry Giscard d’Estaing, who said that not a comma was different from his creation, which had earlier been rejected. There have been all sorts of media comments, from which I pick out those of the ever engaging columnist Simon Jenkins, who said that,

“everyone but a fool (or a minister)”—

he unkindly added—

“knows that the new treaty is the ... constitution in all but name”.

I was quite reassured by the comments made on the treaty in the other place by my right honourable friend Kenneth Clarke—my former parliamentary secretary, as it happens—who urged the Foreign Secretary to,

“stop all this nonsense about its being different from the constitution when it is plainly the same in substance”.—[Official Report, Commons, 5/3/08; col. 1785.]

You could not get more authoritative than that because Kenneth Clarke, as we know, believes that a referendum should never have been promised in the first place and that it was all a ghastly mistake by Tony Blair. I gather that half the Cabinet believe the same thing.

Amid this clouded and confusing situation of opinions and counter-opinions, I have one, I hope not revolutionary, suggestion. Let us try in your Lordships’ House to reach our own judgment. Let us draw on the many reports that we have before us, on the texts, on the accumulated knowledge of this place and on the wisdom that comes down to us from all the jurists and great constitutional authorities of the past who have sought to shape and explain the evolving British constitution, even though, as I think Arthur Balfour once said, it is probably inexplicable. We have everything from Blackstone’s Commentaries to Paley, Dicey, Hayek, Lord Denning and Lord Bridge. We have our own wealth of learning still happily among us, such as the noble Lord, Lord Neill, the noble Lord, Lord Wedderburn—incidentally, he told me that unfortunately he could not be here today—and many others.

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We also have a hugely rich selection of contemporary documents from which to quarry, including the treaty itself and a vast pile of texts, protocols, declarations and annexes. It does not make things very much easier but, as explained by the amiable Belgian Minister, Karel de Gucht, it has all been deliberately drafted to be unreadable and unclear to protect it from popular understanding—a very frank and candid admission. But there we are.

We have reports from two committees in the other place, the European Scrutiny Committee and the Foreign Affairs Committee. We have the enormously thorough report of our own European Union Committee, under the skilled chairmanship of whom I hope I can call my noble friend Lord Grenfell. For understandable reasons, that report makes no overall assessment or comparisons, although in my view it reaches some rather curious conclusions of detail, to which we will return—no doubt the noble Lord, Lord Grenfell, will comment on them. Perhaps most important of all, we have the very latest report from our own Constitution Committee, to which the noble Baroness referred, which confirms that:

“The treaty and its protocols create arrangements which inevitably have constitutional implications”.

The committee says “inevitably”, so let us have no more dispute about that.

On top of all those, we have the FCO’s publications, the consolidated text of the EU treaties as amended, the comparative tables of the treaties, the superb British Management Data Foundation’s The Treaty ofLisbon in Perspective, the documents from Open Europe and all the rest. I am sure that noble Lords will have read all those documents closely.

Let us get on to the heart of this. The Oxford English Dictionary defines a constitution as,

“the mode in which a state is constituted or organised”.

It is true that the word “constitution” has been dropped from the Lisbon treaty. The noble Baroness the Lord President has just argued that, because it consists of two amending documents, the Treaty of the European Union and the Treaty of the Function of the European Union, which amend a string of previous treaties, and is not a single founding document, it somehow would not have the same effect as a constitution and therefore the Labour referendum promise falls. That seems to be the argument. But the British constitution has no single founding document. We know that it has some important documents, such as Magna Carta and the Bill of Rights, but it comprises a long string of precedents, statutes, court judgments, Bills and Acts of Parliament. I hope that we will not hear that argument again, because it just will not wash. Indeed, perhaps I should say that it is not one of those arguments that is “good enough for their Lordships on a long afternoon”, as I think one Minister found written in his brief. It really will not do. The key question is whether the new treaty, which contains 240 of the 250 measures in the old one, has fundamental constitutional effects. On the basis of all definitions of constitutional issues and the best constitutional minds in this House who have already reported to us, it clearly does.

We are told that this time the red lines will make all the difference because they have somehow drained the treaty of any constitutional traces. But not only are we

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informed by the other place’s European Scrutiny Committee, under its shrewd Labour chairman, Mr Michael Connarty, that the red lines “leak like a sieve”, and not only does it turn out that we have no opt-out at all from the massive Charter of Fundamental Rights, which the noble Baroness mentioned, and not only are these red lines almost exactly the same as the ones negotiated under the Treaty establishing a Constitution for Europe, for which a referendum was deemed appropriate, but the fact seems to have been overlooked that the interpretation of any supposed protective declarations and protocols will be in other hands, not in ours. It is for the European Court of Justice, now to be renamed the Court of Justice of the European Union—in effect, the new supreme court of the Union—to decide these matters and it will decide them largely according to its own agenda and inclinations.

Case after case in the ECJ, which, as the excellent report of the noble Lord, Lord Grenfell, reminds us, is already seriously overloaded, confirms that the court is what the noble Lord, Lord Wedderburn, calls “a creative court”. It will determine all EU matters in its own way. It may or may not give weight to protocols. It may or may not accept or ignore declarations attached to the treaties. We simply do not know. It is true that the doctrine of the primacy of EU law is long established, but this treaty now gives massive new ECJ jurisdictions over the European Parliament, the Council of Ministers, the European Commission and the European Central Bank. It can impose unlimited fines and penalties in many new areas and drag before it bodies such as the Court of Auditors, the Committee of the Regions and many others.

Furthermore, as is now beginning to be realised, under the famous passerelle—or ratchet articles that have been copied and expanded from the previous constitutional treaty—all these powers can be further extended without treaty change unless national parliaments call a halt. We on this side and anyone looking at this objectively doubt very much whether they can be halted unless it is made clear that these self-granted transfers of further powers to the EU, which are in effect new treaty changes, are made subject to a full Act of Parliament rather than just nodded through by a whipped Commons majority. That is an issue, among several others, on which we had the support of the Liberal Democrats in the other place, which was very helpful. I wonder what they will do here. We shall see.

All three major parties promised the British people that they would have a say on a constitutional document. The former Prime Minister, Tony Blair, said:

“There is no question of any constitutional treaty going through without the express consent of the British people”.—[Official Report, Commons, 21/6/04; col. 1090.]

Mr Jack Straw, at the time the Foreign Minister and now the Lord Chancellor among other things, said explicitly that a treaty containing such things as the creation of a new long-term President and Foreign Minister, as this one does with a slight name change, would indeed be constitutional. For the Liberal Democrats, there was also the explicit promise of a referendum. Where they stand on that now, frankly I do not know. I have long since learnt that Liberal

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Democrat policy seems to adjust to the phases of the moon. Indeed, perhaps I had better hurry on with my speech because we all want to hear from the noble Lord, Lord McNally, what this week’s Lib Dem dish of the day turns out to be. They, too, were trusted by the voters when they made that promise and they, too, believe—so their young, dynamic and by all accounts very attractive leader keeps saying—that people should be trusted and consulted much more, although it seems not in this case. In short, whatever the feelings about referendums, we come down to a straightforward question of trust. Are manifesto promises to be trusted? That question lies at the heart of this. That was the clear expectation of individual citizens and they have an absolute right to feel that they have been cheated.

As to the treaty itself, which of course we cannot amend, we will take the opportunities at further stages of this Bill to explore the implications, including some that have not been made at all clear yet. All I would personally observe at this stage is that this patently falls woefully short of the aspiration in the Laeken declaration to bring the Union closer to the people. In fact, it takes it further away.

After the rejection of the last attempt in 2005, HMG had a golden opportunity to set EU reform on a more modern and popular course and thus to bring us effectively to the centre of it. That was the so-called “period of reflection”, but instead we have ended up with an almost incomprehensible goulash of administrative and judicial changes in our legal relationships with our EU partners. It leaves loads of loose ends to be discussed and, in the words of the Economist, “dozens of questions unanswered”, particularly about who will preside over the Union and when, and who will be in charge. A real turf war lies ahead. In short, it is unfinished business, a veritable Terminal 5 of unsorted legal baggage. It is certainly a significant setback in making the EU fit for purpose in the 21st century. Long ago, I had the opportunity to interview Jean Monnet in his apartment in the Avenue Foch. What he said that day convinces me that he would have been absolutely horrified at the confection now before us.

EU reform also appears to have strong centralising tendencies, which seem a bit outdated and move Europe in the wrong direction. For instance, what happened to our hopes that the ever more voluminous acquis communautaire, now running at 98,000 pages, would at last begin to be unwound? There is not a sign of that in the treaty, while the passerelle articles are frankly dangerous and require far tighter parliamentary control than the Bill offers.

Even more important, none of these things is what the Government actually wanted. Ministers have made endless failed attempts to excise many aspects from the previous constitutional treaty, most of which simply reappear in this one. That confirms beyond doubt that this is not what the Government sought but what they have ineptly become stuck with. They certainly wanted the passerelle provision out; they wanted the EU to stay well clear of foreign policy, which it does not do; and they thought it a rotten idea to abolish the third pillar for the EU to intrude in aspects of criminal justice, the treatment of immigrants and so on. They

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opposed the creation of an EU diplomatic service; they opposed the obligation of the EU Foreign Minister to speak for the EU at the UN; and they opposed making employment, health and consumer protection shared competencies. They have got the lot now and more. We shall be asking what happened to all those good intentions and why the Government lost so many arguments.

Finally, on the future shape of the European region, its governance and how it adapts to totally new world conditions—with the rise of Asian power, of course, none of us can be sure—certainly the proposition that this treaty, even with its self-amending provisions, will settle institutional and structural matters in Europe for all time is absurd and, frankly, ignorant. There will be no last EU Act or settlement; the question of who rules in the Union and at what level laws should be made will continue to be under constant debate between the Community method and the intergovernmental method. We on our side want an effective Union in our region of the world that is democratic in its legitimacy, modern in structure and able to mobilise the best kind of co-operation on practical issues. We want an EU that reflects what Rabbi Jonathan Sacks calls the “dignity of difference” and not the standardising ambitions of the European elite. Big is not necessarily beautiful; the most progressive idea today in Europe may be the nation state itself. I am far from convinced that this treaty carries that kind of Union forward. There are much better ways of being good Europeans than merely ticking all the boxes.

It was the Government’s firm and unequivocal manifesto undertaking to hold a referendum on this kind of document. Our role in this House and the long-established Salisbury convention demand that the Government’s manifestos be upheld. Mr Brown keeps claiming that he wants a new relationship between government and the citizen. He can have it; here is his chance to show that he means it. Our task is surely, therefore, to examine these matters with the utmost care and to return them to the other place where necessary, thus allowing the Government and the Commons to think again in accordance with their promises. We believe that that is the right course and we shall fight during the coming weeks to see it followed. So let the struggle commence.

1.13 pm

Lord McNally: My Lords, I am grateful to the noble Lord, Lord Howell, for warming up the audience for me in that way. Both when I read him and when I listen to him, he always brings to mind a cartoon from the early 1960s which showed the leaders of Europe in a sports dressing room getting ready for a football match. There was de Gaulle putting on his boots, Erhard pulling up his socks and, framed in the doorway, pristine in his whites and his cricket cap and holding a bat, was Sir Alec Douglas-Home. The title of the cartoon was Joining the Game.

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