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The treaty is in our interests. It introduces a whole raft of innovations that we have promoted for many years. The noble Lords, Lord Hannay and Lord Kerr, enumerated a number of them. In the interests of brevity, I will almost just tick them off. There is the replacement of the rotating six-monthly presidency, which is an improvement and is something that Britain has always wanted. The merger of the high representative with the external affairs commissioner, with the holder of that post chairing the foreign affairs council, will also improve the workings of the European Union, and it is something for which we have campaigned for a long time. There is also the smaller Commission, the capping of the numbers in the European Parliament, the Council meeting in public when it is legislating, the reinforcement of the big countries’ position in qualified majority voting and the increase in the voting weight of the United Kingdom. Britain has campaigned for all those things and, although some have poured scorn on the treaty because they do not like to see virtue in a treaty that they are so much against, the innovation in relation to national parliaments is an important step in the right direction, and I hope that it may be carried further in the future. I could go on.
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The Conservative Party could be the biggest beneficiary of all this because, on present trends, it looks very much as if a new Conservative Government will enter office at just about the time that the new system incorporated in the treaty will come into play. It looks as if, at the moment when a Conservative Government take office, the European Union will be better placed to deal with substantive issues than it has been for a very long time. The institutional debates about treaties of one sort of another, which have been so arid and divisive, will be behind us.
I agree with my noble friend Lord Howell that there will be a good deal of jockeying for position between the new president of the European Council, the high representative and the president of the Commission. I also agree with the noble Lord, Lord Kerr, and my noble friend Lord Brittan that the most likely outcome of that is that power will move rather towards the intergovernmental aspects of the European Union and rather away from the institutional aspects. I think that they are right, but we will have to see.
So there will be a great opportunity to drive forward progress on the big substantive issues on which many Conservative spokesmen have often said that the European Union ought to concentrate, rather than on the institutional debates. These issues have been enumerated by a number of noble Lords but are worth a word of repetition. There is climate change, which the noble Lord, Lord Jay, mentioned, and that links to environmental policy. There is the whole question of Russia that my noble friend Lord Brittan mentioned, and that, too, is linked to energy, which is linked to climate change and the environment. There is the question of immigration; there are the issues facing world financial markets, including how best to adapt to the phenomenon of sovereign wealth funds; there is the alleviation of world poverty. There is the tackling of threats to peace in neighbouring areas, notably the Balkans. There is, perhaps, also the issue of playing a more constructive and substantial role in the whole question of Israel and Palestine. I could go on, but all those issues have an important place in the British agenda and on which Britain is more likely to be able to influence the outcome to the better by co-operating with its European allies in a framework that enables decisions to be taken more easily than was the case in the past.
Thanks to this treaty, the British Government who will come into office in 2009 or 2010 will have an unprecedented opportunity to pursue the national interest through the European Union and enable the EU to pursue its aims more effectively. I very much hope that, when that happens, it will be an incoming Conservative Government who will be able to take advantage of all this and that they will avoid the terrible errors of Mr Wilson’s Government. Noble Lords in this House will remember how the first two years of the Wilson Administration were wasted in the barren and empty exercise of renegotiation and the referendum, which put British policy in Europe and British foreign policy in general into baulk, and used up goodwill that could have been used to much greater effect during the subsequent difficulties on the European budget.
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It would be a terrible and most awful waste if the opportunities presented by this treaty were not taken full advantage of by the British Government of whatever party. Above all, I hope that it will be a Conservative Government.
5.28 pm
Lord Goodhart: My Lords, I am delighted to follow the noble Lord, Lord Tugendhat, who was of course a most distinguished Commissioner of the European Union. I think that I agree with everything that he said, as he agreed with the noble Lord, Lord Tomlinson, before him. At any rate, there is a degree of consensus among all three parties. I declare a couple of interests. I am currently the chairman of Justice and was, until the end of last year, a trustee of Fair Trials International. Both those organisations submitted evidence to the EU Committee.
The magazine The Week has a column that lists some events of the past week under the heading, “Boring but important”. That is an appropriate heading for the treaty of Lisbon. It is boring because it consists mainly of tweaks to the existing treaties, few of which are of any real importance in themselves or are readily comprehensible to non-experts. But the treaty is important as a whole because it makes changes that are necessary or at least highly desirable for a European Union that has increased its membership since the treaty of Nice from 15 to 27 and now finds itself in an increasingly globalised world community.
As a lawyer, I will concentrate on one aspect of the treaty: law and justice, including the Charter of Fundamental Rights. The importance of these issues is demonstrated by the amount of space given to them by the extremely valuable EU Committee report on the treaty, which has been praised by many other speakers. The report takes up 261 pages. Chapter 6, which covers broad legal issues, is by far the longest, with 69 pages. If you add Chapter 5 on the European Charter of Fundamental Rights, which takes up another 26 pages, legal matters take up more than a third of the report. At present, legal matters—co-operation in the fields of justice and home affairs—are divided between the first and third pillars. The first pillar is of course the mainstream element of the EU, involving institutions such as the Commission, the European Court of Justice and the European Parliament. Decisions, unless otherwise expressly provided for, are taken by QMV.
The third pillar, on the other hand, is intergovernmental. Decisions are taken by the member states without the involvement of the EU institutions. Decisions must be unanimous but, if there is dissent, those states that wish to do so can in some circumstances enter into agreements binding themselves but not the other states—a formula known as “enhanced co-operation”. The best-known agreement entered into under the third pillar is probably the European arrest warrant, which enabled the United Kingdom to secure the immediate extradition from Italy of one of the perpetrators of the failed bombing in London of 21 July 2005 and thereby showed its value.
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The main effect of the Lisbon treaty is to absorb the third pillar into the first, so that police and judicial co-operation, which are now in the third pillar, will be brought into this mainstream and rejoin immigration and asylum, border controls and civil and family law, which have already been transferred to the first pillar, under the name “area of freedom, security and justice”, or FSJ.
This is an important change and I believe that it is a real improvement. In an age of international terrorist threats and cross-border organised crime, we need collective schemes of cross-border co-operation between the police and the judiciary in different member states in order to counter those things. However, changes in the case of the UK and Ireland will be minimised because of the opt-ins included in the course of negotiating the Lisbon treaty. This means that, while other countries will be subject to QMV when future legislation is proposed, the United Kingdom can just refuse to join in. Of course, it cannot then veto the change by the other states. In fact, the United Kingdom will be in a stronger position than it is now because it will be able to opt out of some legislation in which it was previously, or is now, bound by QMV.
In the case of judicial co-operation in criminal matters, further protection for individual states is provided by a new process, the emergency brake, which enables a member to secede from draft legislation that it considers,
It would be impossible to go into the details of the many relatively minor changes to the FSJ area without overrunning my time. I recognise that some provisions of UK legal systems—mainly in the field of criminal procedure—are sacrosanct. These include the right to jury trial for serious offences. I am satisfied that these provisions are more than adequately protected by the opt-in provisions in the treaty and by the emergency brake.
In other fields, however, co-operation or harmonisation is often desirable. For example, where commercial law comes within the single market laws governing trade, it should apply throughout the market. Quite a lot of progress has been made, although it needs to continue. There is a similar need for the harmonisation of patent or intellectual property law. During the time that I served on Sub-Committee E of the European Union Committee, we considered several matters where harmonisation was desirable, such as having a simple small claims procedure operating throughout the whole of the EU.
As a trustee of Fair Trials International, I became aware that several member states had wholly inadequate procedures for ensuring fair trial for foreigners, particularly as a result of defects in their legal aid and translation systems. Those procedures need to be brought up to the standards of the United Kingdom and other EU member states that have equally good systems, and that can surely be done only by QMV. This problem needs to be dealt with; the Lisbon treaty will, if ratified, make that easier to do. To move from unanimity to QMV would make it possible to adopt obviously sensible procedures, such as the mutual recognition of
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The whole point of QMV, as the noble Lord, Lord Jay, said, is that some decisions will be taken that the United Kingdom dislikes, but there will in all probability be far more decisions that the UK welcomes but which would have been blocked but for QMV. Without QMV, Malta, Slovakia or any other small state would be able to block something that was agreed by all other member states.
My conclusions on the new FSJ provisions are that the changes to the existing treaties are undoubtedly important, but the only change of real importance on its own is the incorporation of the provisions remaining in the third pillar into the mainstream of EU legislative competence.
Any potential adverse impact on the United Kingdom is almost entirely eliminated by the opt-in. In fact, the UK has the best of both worlds. If it welcomes proposed legislation—as more often than not it will—it can opt in and take the advantage of QMV to override objections from a non-blocking minority of other states. If it does not welcome proposed legislation, it has no need to opt in.
I turn to the Charter of Fundamental Rights for the remaining time available. Although the charter does not at present have legally binding force, it already has a good deal of influence—for example, with the European Court of Justice. Under the Lisbon treaty, the charter will become legally binding. That is of course an important change. The charter contains some controversial rights, such as some of the economic and social rights. However, the EU Committee, at paragraph 5.56 of its report, was not persuaded that the charter creates new rights that differ from those in the underlying national and international documents from which the charter was derived. Respectfully, I agree with its conclusion.
In any event, the charter binds the institutions of the EU but binds member states only when implementing EU law. Thus, its scope is far narrower than that of the European Convention on Human Rights, which under the Human Rights Act is binding for all purposes on all public authorities in this country except Parliament. At present, the ECHR does not apply to EU legislation because the EU is not a member of the Council of Europe and therefore cannot be bound by the ECHR. This creates a human rights black hole, which the charter will eliminate.
The treaty has a protocol that limits the application of the charter to the UK and Poland. The protocol falls short of being an opt-out but it specifically states that the rights in Title 4 of the charter—the so-called solidarity rights—do not create justiciable rights applicable to the UK or Poland that are not already incorporated in their national law.
Finally, the treaty provides for the accession of the EU to the ECHR. This will require the agreement of the member states of the Council of Europe, which
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I have to say that, if it was certain that the EU would be able to accede shortly to the ECHR, I would regard the benefit of the charter as being fairly marginal, as the ECHR would apply to the EU in the same way as it already applies to member states. However, in the absence of certainty about accession and the likelihood of long delays, I believe that the charter’s legal status will serve a useful purpose.
I therefore believe that both the charter and the new FSJ provisions will work to the benefit of the UK and that they are an important part of the argument for ratification of the treaty.
5.40 pm
Lord Leach of Fairford: My Lords, I should declare an interest as chairman of Open Europe, which from time to time has submitted evidence to Parliament on European affairs.
The Government say that the constitutional concept has been abandoned with the Lisbon treaty. It is an impressive phrase, but I am unable to attach much meaning to it, as almost everyone who has studied the treaty has concluded that in substance it is the same as the constitution. The authors of the constitution, Giscard and Giuliano Amato, have both been astonishingly frank: they have told us in terms that the treaty’s unreadability is nothing more than a device to disguise the identity of the two documents.
The Government’s fallback argument is that our “red lines” make the treaty different for us, but that does not stand up to scrutiny either. Those safeguards are little changed from the ones that we had already on the constitution. Some of them have even been weakened. They are, I am afraid, also destined to be ineffective. In John Major’s day, the European Court got around our working time directive opt-out by using health and safety law instead. Exactly the same will happen to our partial and curiously worded opt-out from bits of the Charter of Fundamental Rights; it is wide open to judicial circumvention.
There are Members of Parliament in Westminster who would not be there but for the promise of a referendum in their party manifesto. That promise has now become inconvenient, but it is a bit late to take a high moral tone about the virtues of representative democracy. It is no use claiming that the public’s frustration is all based on myths got up by Rupert Murdoch; he did not write the Liberal Party manifesto and the two-thirds of voters in the other 26 member states who tell pollsters that they, too, want their say on Europe’s future have never read one word of the Sun.
Only one thing has changed since the referendum promises were made: Tony Blair thought that he could talk the people into supporting the constitution but Gordon Brown does not. The irony is that they may both be right about their own persuasive powers. A freely offered vote might indeed have been won by
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It is said—I have heard it here—that Lisbon is just a streamlining treaty; Maastricht was more important, and we were not given a referendum on that. Well, perhaps we should have held one. Our failure to do so may be one of the reasons why the public feel so alienated and so impotent on Europe. Instead, we got something else: an opt-out on its main feature, the single currency. This later developed into a promise of a referendum, a promise that holds good today. I hope that it has a better fate than other promises.
The other outstanding feature of Maastricht was the division of powers between nation states and the European Union, the co-called pillars. Defence and foreign affairs were to be matters of co-operation but essentially left to national Governments, as were justice and home affairs. Trade, which needs an international legal and administrative system to resolve disputes and function properly, would of course remain under European law. The public at the time were suspicious about whether that division of powers was for real and whether it was as reliable as it seemed. They were told that it was the high watermark of integration, but they wondered. If it was genuine, they approved of it. Criminal law, social policy, security and defence affect their lives directly in a very personal way. If these are determined in languages that they do not understand by remote judges and unelected bureaucrats or by unknown politicians behind locked doors, citizens lose the sense of ownership; they no longer feel that they belong.
So, on the surface, Maastricht reflected the British preference for a liberal unified trading Europe and a co-operating, rather than unified, political Europe. There was a lot of talk at the time about subsidiarity, with the suggestion, which was later repeated in the Laeken declaration, that some powers might even be returned, in the name of subsidiarity, to member states. That, too, was reassuring for the public. Unfortunately, it did not work out as the optimists expected. It was the suspicious ones who were right; they had understood better the incremental nature of European treaties. What started in Paris in 1951 as a treaty to reconcile France and Germany and to control the war industries became an economic community six years later at Rome and in 1983 turned into the single market. Eight years after that, it took an openly political dimension with Maastricht. Since then, we have had two more modestly centralising treaties. Now, with the Lisbon treaty, just as with the constitution, the formal division of powers that Britain has always championed is to be completely dismantled.
When people ask for a referendum on this treaty, it is not so much because of its specific individual content but because it is the cumulation of seven major treaties, each marking a further uncertain step towards an elitist political Europe—a process completely different from the transparent, measured and democratic process that gave rise to the American constitution. In Britain, we inherited from the 17th century a balance of
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The evidence of referendums elsewhere from the past 50 years shows them to be a remarkably thoughtful and productive way of resolving difficult issues. In practice, however, under our system the British people’s ability to exercise their balancing power is limited to once every four or five years. With the diminished role left to us in this House, we have a special responsibility to defend the people’s known will between elections, otherwise we will effectively be condoning, or accepting, the fact that the sole trustee of the nation’s deepest purpose and settled intent is the Government of the day—in this case, a Government put in power by less than 25 per cent of the electorate.
With all the deference of a relative newcomer to your Lordships’ House, I suggest that, as we go through the Bill line by line, we should not hesitate, if we think fit, to send back constructive amendments to the other place for it to think again about clauses that the Government once swore that they would never sign and to revisit the pledge of a referendum made by all three parties. Parliament’s reputation with voters is not high; that would go a long way towards restoring it.
5.48 pm
Lord Harrison: My Lords, we saw the publication today of your Lordships’ Economic Affairs Committee’s report on migration policy in the United Kingdom and its effects on our economy, itself a consequence of our membership of the European Union. The report was trumpeted all morning in the media as a rebuttal of Her Majesty’s Government’s current migration policy. I will get the opportunity to read it later on, but what a contrast with the publication of the European Union Select Committee’s analysis of the Lisbon treaty under the astute and measured chairmanship of the noble Lord, Lord Grenfell. Despite a rare press conference to launch that comprehensive analysis of the implications for the United Kingdom of the implementation of the Lisbon treaty, we had no such fanfare. I suspect that the lack of reference to a referendum, or indeed to a decision about the now defunct constitutional treaty, meant that the media, with their usual short attention span, passed over this major contribution to our debate. I think that is a shame.
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