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These days, whenever I hear the noble Lord, Lord Howell, and Conservative spokesmen, we get the usual finale in the peroration about their commitment to European co-operation, but every twitch of their body language is hostile to the kind of Europe being built.
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Let me put in context the debate we have today. In some ways, there have been two constant themes over 60 years of British policy. The first has always been too little, too late. We did not go into the coal and steel community because, as it was put at the time, the Durham miners will not have it. There are no Durham miners today. We did not go to Messina because the Foreign Office predicted that the talks would collapse, so we were not in Europe at the beginning. Even as late as the early 1990s, when I was advising the Corporation of London, it was advised not to go to Brussels for talks about a single currency because the Treasury believed that the talks would collapse.
That strain of policy was best termed by my late noble friend Lord Jenkins, who always said that the British were like men on a railway platform waiting to catch a train. They would dither about whether to get on it and then, as the train began to move, with as much dignity as they could assemble, they would get onto the train. Then, as Lord Jenkins always used to say with some passion, when they got on the train they found that all the seats in the dining car were occupied. Those of us who know of Lord Jenkins’s appreciation of a good meal, know the passion with which he gave that example.
The other constant theme that I have experienced is that in the two main political parties there has been a willingness to make Europe work in office and a willingness to play the anti-European game in opposition. To give balance to this speech, perhaps I may remind my former Labour colleagues that when I joined the Labour Party it was hostile to Europe because, in the words of Hugh Gaitskell, “It would give away 1,000 years of history”. When Labour got into government, Harold Wilson and George Brown would not take no for an answer. When we were in opposition again, it was no to Europe on Tory terms. When we got back into government, it was renegotiation and yes in the referendum, as advised by the Cabinet. That pattern has now been repeated by the Conservative Party. As it has gone into opposition, it has gone into anti-Europeanism. That playing of short-term politics by the major parties has done grave damage to Britain’s long-term national interests in Europe. I am proud that these Benches have a 60-year, consistent commitment to Europe.
I have been asked about our attitude to this Bill. First, as with all Bills, at Second Reading we will give our broad views and we will look at amendments as they arise, but let there be no doubt that we on these Benches want to see the Bill passed and the treaty ratified.
On the referendum pledge in the general election manifesto, I know interpretations have been made but that commitment was to the constitution. As the noble Lord, Lord Willoughby de Broke, in a flash of honesty a few weeks ago, said, unfortunately the Dutch and the French shot our fox. So they did. That commitment to the constitution died with the constitution and,
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Let me make one other point about this. The Conservatives have gone on about a referendum, but when my colleagues in the other place offered an in or out referendum, they ran away from it. I have listened carefully to both Mr Cameron and Mr Michael Gove on “News 24” explaining Conservative policy. The policy is that if the Conservatives won a referendum which said no to the treaty, they would continue in Europe on the basis of Maastricht and Nice. I had a look at the spontaneous demonstration that assembled a few weeks ago—it looked like the Countryside Alliance on a day out—but the smartly dressed ladies and gentlemen who were asking for a referendum on the treaty wanted Britain out of Europe. I did not hear any Conservatives going out there and saying, “Look, folks, what we want to do is carry on under old treaties”. It really is dishonest to start whipping up public anticipation. We have seen all the e-mails—
The Earl of Onslow: Come off it.
Lord McNally: My Lords, I know that noble Lords do not like it, but the real duplicity is by a Conservative Party that longs to wound and fears to strike. I can tell it now that this party and this Bench are not going to fall into any elephant traps set by the Conservative Party. So work it out from that; we will make our judgments on that—and by God you are making a case for the abolition of the hereditaries.
The noble Lord, Lord Howell, mentioned Jean Monnet. I had the honour of working with Jean Monnet 30 years ago on a committee called the Committee for the United States of Europe. I remember going to the Hyde Park Hotel to see him. I said, “So Monsieur Monnet, what was it that motivated you in putting forward this dream of Europe?”. I remember him looking out of the windows over Hyde Park and saying, “I wanted to create something that would make it impossible for Germany or France ever to go to war again”. In that respect, that Europe of atonement has succeeded beyond our wildest dreams and we should be proud of it.
I got into parenting rather late in life—I have three teenage children—and I am well aware that that Europe of atonement is now part of history for them. If I am going to win the argument for Europe in the 21st century, I have to make 21st-century arguments, which are not going to be narrow arguments about treaties on the constitution, line-by-line. They will be arguments about where we want to go within that Europe. As the Lord President said today and as President Sarkozy said with great eloquence last week, that Europe must address the major issues of our day, whether it is energy security, climate change, immigration, organised crime, our relations with our near neighbours or our policy on the major issues of poverty and instability in the world.
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Lord McNally: My Lords, I can go on for longer, but if you want to break with the Companion, that is fair enough. The Conservatives do not like the fact that they want to make this into a narrow constitutional debate and that I am challenging them to break away from short-term political advantage, stop hitching their wagon to eccentric multi-millionaires with the single objective of getting us out of Europe and start talking like Conservatives who have a proud history on Europe. The best thing that the Conservatives did was in the 1980s, when they gave us the single market. If we are going to have a debate today, let us have it in the broad context of Europe.
If the noble Lord, Lord Strathclyde, wants to intervene, that is fine—although I am rather surprised that, given the fact that there are three party leaders, he decided to duck out of speaking today. Perhaps he has the same views on Europe as he has on Lords reform, and did not want to give them.
Lord Strathclyde: My Lords, I am very pleased that the noble Lord has allowed me to intervene and I do not think that I am breaking any rules of the House by doing so. What I want is some clarification from the noble Lord, who is normally extremely clear. The Liberal Democrats had one position at the election and a second position in the House of Commons. Is the noble Lord telling us today that he is coming up with a third position or is he going to stick to the position that the Liberal Democrats took in the House of Commons?
Lord McNally: My Lords, I am sticking to the position that the Liberal Democrats took in the House of Commons, which was at Third Reading to vote for this Bill.
Lord Strathclyde: My Lords, does that mean that the noble Lord and his party will abstain on the question of the referendum when it arises?
Lord McNally: No, my Lords, we will not abstain on the referendum.
Noble Lords: That is a third position!
Lord McNally: My Lords, if it comes as a shock to the Conservative Party, it is even slower thinking than I first thought it was. I assure noble Lords that these Benches, with their record on Europe, are not going to fall into any Conservative elephant traps. The noble Lord, Lord Strathclyde, knows as well as I do that the arithmetic of the Commons and the arithmetic of the Lords are different. A Commons abstention can be perfectly acceptable, and there are several examples of us voting in different ways in the Commons and the Lords, as have the Conservatives. You can throw all the abuse you like, but I am determined—because I am not playing for the short term but believe passionately, as I have believed for 40 years, that the time has come to move on from this constitutional navel-gazing and short-term political opportunism—to put Britain on the road to playing a full part in a Europe relevant to the problems of the 21st century. That is how we will vote and that is how we will work in Committee.
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1.26 pm
Lord Grenfell: My Lords, after a lot of heat, I shall try to offer a little light. I invite the House to take note of the report of the European Union Committee, entitled The Treaty of Lisbon: An Impact Assessment, which was published on 13 March.
Last October, the Select Committee agreed that we could most usefully assist the House by undertaking a detailed, objective, evidence-based analysis of the treaty, and an assessment of its impact on the institutions of the EU, on the member states, and on the UK. We wanted to explain exactly what the treaty does, by comparing its provisions with the status quo, and thus determine what significant changes it would introduce, if it came into force, relative to where we are now. We were not therefore interested in comparing it with the defunct constitutional treaty or in entering the debate on whether there should be a referendum. Nor did we wish to deliver an overall judgment on the treaty or make any recommendation as to whether the UK should ratify it. That was a matter for Parliament as a whole.
In an unprecedented collaborative effort, the Select Committee and its seven sub-committees worked at it for four months, considering evidence from more than 140 witnesses of all opinions, both here and in Brussels. The committee was able to adopt our final report by consensus, which was gratifying. If we have succeeded in our goal of producing a report that can usefully inform the debate in this House, as I hope we have, the credit goes to the 80 Members of your Lordships’ House, and to our superb staff. As chairman, my gratitude to each and every one of them is unbounded.
Our report looks at every significant provision of the treaty and our conclusions are summarised in chapter 12 of the main report. As this is a complex treaty and it is going to be a long debate, I have no wish to try the patience of the House. I shall therefore be selective in my choice of issues to address, mindful that colleagues on the Select Committee and the sub-committees will also be speaking.
In chapter 2, we deal with the EU’s competences—that is to say, its powers. The treaty sets out for the first time a clear statement that the Union may exercise only such competences as the member states have conferred on it—the principle of conferral. All other competences remain with the member states, which may decide to reduce the EU’s competences. The significance lies in the articulation of those principles, the content of which has always been implicit in the treaties. The treaty also specifies new or extended competences. By the Government’s count there are 17 of them, and in almost all of these areas, as the Minister for Europe reminded us, the EU already takes action under other legal bases. Seven of the competences, by my count, are new.
The EU’s competences are not affected by the conferral of a single legal personality on the Union. The European Community in relation to the first pillar has always had express legal personality, and the European Union has had it implicitly to the extent that it has powers under the current treaty of European Union to enter into international agreements. What the Lisbon treaty does in extending a single legal personality to the
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In our third chapter, we examine the proposals for simplified revision procedures and passerelles or bridges which could be used to alter significantly the provisions on the face of the treaties. Any treaty revision by means of simplified procedures and any changes to decision procedures by means of passerelles will be subject to veto by the Government in the European Council or the Council of Ministers. Further, under the Bill before us today, as the noble Baroness the Leader of the House reminded us, government agreement to any such move will be subject to approval by both Houses of Parliament. In addition, two of the passerelles—the second simplified revision procedure and the passerelle for measures concerning family law with cross-border implications—are subject under the treaty to a direct veto by each national parliament, exercisable within six months. We doubt that it will ever be needed here since both Houses will have this separate veto on government agreement in the Council.
The treaty’s impact on the EU's institutions is examined in chapter 4. It makes highly significant changes to the European Council, aimed at making it work better. The creation of a full-time European Council president, serving a two and a half year, once renewable term in place of the current six-monthly rotation among heads of government, could mean a more active and activist European Council, a consequence which our report recognises as likely to be welcome in some quarters but not in others. The European Council president will have two broad roles—leading the Council and ensuring the external representation of the EU on issues concerning the common foreign and security policy at his or her level without prejudice to the high representative for foreign affairs and security policy.
Concerns have been raised about the relationship between the European Council president and the Union's other senior leaders, in particular the high representative, the rotating presidency of the Council of Ministers, and the president of the Commission. The treaty has little to say about how this will work, and that is understandable. Only practical experience, not to mention the manner in which the various personalities interact, will tell.
The extension of the use of qualified majority voting to more than 40 new areas, including the whole of justice and home affairs, is a significant change for the Council of Ministers. Where there is a move from unanimity to QMV, the UK will have to construct a blocking minority rather than use its veto if it wishes to block legislation. It is marginally helpful that the UK's share of a blocking minority rises from 32 per cent to 35 per cent. As we also note, the extended use of QMV may help to advance UK interests in some cases. The veto can be a double-edged sword, and it is worth recalling that the single market would never have happened without using QMV to achieve common
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The reduction in the size of the College of Commissioners, in the interests of increased effectiveness, to two-thirds of the number of Union members is an important change. From 1 November 2014, the posts will be allocated to member states on a rotation system meaning that each member state will not have a commissioner in the college for five years out of every 15. Commissioners ought not to be regarded as national representatives, but the concern that a member state without a commissioner is disadvantaged will doubtless be raised, whether justified or not. If this new arrangement just does not work, the European Council will be able to rethink. The treaty further states that the European Council will need to take into account the elections to the European Parliament in nominating its candidate for election by the Parliament to the Commission presidency. That does not prevent the Council from coming to its own decision as to its preferred candidate, but it will be unlikely to put forward a candidate who could not command the parliamentary majority necessary for election. In that sense, there is no fundamental change from the present system whereby the Parliament must approve the European Council's nominee.
The European Parliament itself finds its powers considerably increased by the Lisbon treaty, in particular by the extension of co-decision now named “the ordinary legislative procedure” to a substantially larger range of areas including agriculture, fisheries, transport and structural funds, in addition to the whole of the current third pillar of justice and home affairs. This means that the European Parliament will become co-legislator with the Council for most European laws.
Another EU institution whose role is significantly expanded is the European Court of Justice, which will gain jurisdiction over the justice and home affairs area as a result of the merger of the third pillar with the first. But of course the court's jurisdiction in relation to the UK will differ from that in relation to other member states to the extent that the UK uses its opt-in/opt-out from all justice and home affairs legislation. The ECJ's jurisdiction will not be extended to the common foreign and security policy except in two narrow and clearly defined areas.
I come now to the European Charter of Fundamental Rights, with which we deal in chapter 5. We were not persuaded by suggestions that the charter itself creates or contains new rights which differ from those in the underlying national and international instruments and documents from which the charter indicates its provisions are derived. The scope of its rights will ultimately be a matter for the courts. However, the broad rights and the language in which they are expressed in the charter reflect existing national, EU and international obligations, in particular the European Convention on Human
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and the European Court of Justice has, in very recent judgments, indicated the significance of those limitations.
It is important to recognise that the protocol on the application of the charter in the UK and Poland, which has the same legal value as the treaties, is not an opt-out from the charter. The charter will apply in the UK, but the protocol reflects the fact that the charter creates no new rights, and appears to put beyond all doubt the fact that nothing in the charter's Title IV on solidarity rights creates justiciable rights applicable to either the UK or Poland, except in so far as such rights are provided for in their national laws.
I now turn to the area of freedom, security and justice, dealt with in chapter 6. The treaty's merger of the first and third pillars brings criminal law and policing within the ordinary legislative procedure, that is to say, QMV and co-decision with the European Parliament. That is clearly a significant change which could speed up decision-making in the Council and prevent legislation being adopted at the level of the lowest common denominator. But it could also increase the volume of legislation in this area. Family law, meanwhile, will continue to be decided by unanimity.
The veto's removal in respect of criminal law and policing means that one member state, or a small group, can no longer block measures supported by the UK. The other side of the coin, of course, is that in some cases the UK could be bound by a measure against its will. But the likelihood of that will be greatly reduced by the general right the UK will have under the amended FSJ and Schengen protocols not to opt in to any proposed measure in the entire freedom, security and justice area. That is the second of the UK's “red lines”. Where the UK has not opted in to a proposal, it can still participate in the discussions. Even though it would have no vote, it could still influence the outcome, witness the case of what is known as Rome I, a measure governing the law of contract.
The opt-in provisions will also apply to amending measures, but other member states are permitted to eject the UK from an existing measure where it declines to participate in a relevant amending measure, though only if UK non-participation in the amending measure would render the system demonstrably inoperable. Such cases should be rare.
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