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There is provision in the treaty for increased European intrusion into our legal system as the European Court may gain jurisdiction over criminal matters, justice and home affairs, and additional rights for individuals to seek redress outside of national courts. There will be new jurisdiction for the European Court of Justice over states’ failure to implement European legislation in the areas of criminal law and policing, subject to opt-outs.
New European laws that will require transposition into English law are of great concern to me as a member of the Committee on the Merits of Statutory Instruments of this House. Already so many statutory instruments based on European requirements are rushed through that there is no chance to reflect on the principle of subsidiarity and to ask whether they are really necessary. Nor is there time to follow them up, and there is no mechanism to check that they are doing what they were intended to. A new legal order has been created by the treaty, filling in such gaps as had previously been left in subjecting British law to European legislation.
In my view, the legal answer is that yes, this is a constitution by accumulation. The political answer is that it is not, and this conclusion must reflect the unwillingness to hold the referendum that was promised by all parties’ manifestos at the last election, even if some have now changed their minds. After all, there is no lack of willingness on the part of this Government to make other constitutional laws and to describe them as such. Witness the Human Rights Act, the abolition of the post of Lord Chancellor, the institution of the Supreme Court and the plans to strip away the royal prerogative, which are under debate at the moment.
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We have to ask ourselves whether we should pass this legislation without that promised referendum when it is apparent that the substantive effect is close to that of the European constitution of 2004—not that that is the crucial factor in my analysis. In answering the question about the referendum, we may find ourselves giving one answer from the head and another from the heart. A referendum is likely to be held only when the Government are split on an issue and there is no other way out. We have had too few in this country to be able to state with confidence that there is any “usually” or “normally” about the issue. The referendum question, if put, needs to be one that the public can understand and fairly reflects the issue to be decided. Let there be no doubt: I do believe that the public understand very well what is in the treaty and what is at stake.
The head, however, says no to a referendum. It says that this House and the other place are the ones charged with taking this decision. The head says that gradual accretion of power to the European Union is only to be expected because any such institution has a life of its own and a momentum of growth. It says no because Ireland is the only one of 27 states planning a referendum. It says no because the manifesto promise is, sadly, unenforceable. I speak in generalities about the law, being well aware of the sub judice rule, but one could argue in a case that the Government made a promise to hold a referendum which they broke, and that that was a breach of contract with at least the Labour voters in the 2005 general election.
One could argue from a legal point of view that the promise created a legitimate expectation, which is a term of legal art, that a referendum would be held. No doubt the Government would argue that a manifesto promise is incapable of giving rise to a legally binding contract with the electorate. This is sad but apparently true at the moment, although the noble and learned Lords of your Lordships’ House might find the argument odd if they remember the case that every new law student studies of Carlill and the Carbolic Smoke Ball Company. That case upheld the enforceability of a promise made in an advertisement, which I compare with a manifesto. The advertisement said that the carbolic smoke ball would fend off colds, and that if it did not, a sum of money would be paid. A lady consumer acted on the promise by buying the product, but succumbing to flu. She won her case on the ground that a promise was not just a puff, it was a promise on which she had relied, even though it was a promise made at large to the general public. She was the one who relied on it, so she had an enforceable right.
Legally I may be wrong, but the heart tells me otherwise. It is a question of accountability. The structure of the European Union, the nature of its decision-making process and the legislation make full democratic accountability difficult to achieve. The Commission cannot properly be held to account by a national parliament, and our Parliament is overwhelmed, I believe, by the volume of EU legislation. Somewhere in all of this the public—the people—must be allowed to question the changes being made in their name and to them.
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At the end of my few minutes, I would like to give a simple message to your Lordships. The law does not prescribe a referendum, but there will be no accountability, a concept much lauded in the other place last week as a constitutional essential, and no trust until a referendum is held. There will be no going forward in Europe, let alone to the centre, without the wholehearted consent of the British people, and I have no sense that this has been given. If in doubt, your Lordships’ House should be guided by the practice of upholding that which was promised in the manifesto of the governing party. So my heart goes with a referendum.
7 pm
Lord Giddens: My Lords, at this stage of a very long debate the best things come in small packages, and that is what I would like to offer—neatly gift-wrapped, of course. I shall make three points and, unlike some other noble Lords who have said that, three points only.
My first point is that the basic premise, the basic supposition, of Euroscepticism—that being members of the European Union or specifically signing-up to the Lisbon treaty marks a diminution in our sovereignty—is false. Something close to the opposite is true. Sovereignty today—certainly in the areas of the academic world where I work—quite rightly and properly, does not mean a legal fiction or an empty formula; it means the capability of a country to shape its own future and to influence the wider world around it. Those influences are, for us, much stronger as members of the European Union than they would be outside. We are a nation of 60 million people in a world of 6 billion people where, as other noble Lords have said, there are massive dynamic forces which no nation can adequately confront on its own. I would call this sovereignty plus and argue, contrary to the Eurosceptics, that our membership of the European Union and our signing-up to the Lisbon treaty, which I wholeheartedly endorse, will deliver sovereignty plus for us.
Secondly, I am a pro-European but I was pleased that the constitutional treaty went down as I was not a believer in a single constitution for Europe. I was happy also that some of the more jingoistic phrases associated with that constitutional integration had been removed from the Lisbon treaty version. With them have gone the last lingering hopes of some who believe that Europe could be a federal super-state, that it could be the United States of Europe, something akin to the US on the European continent. In its place we have a Europe which not only acknowledges national identity but which actively supports it; which not only acknowledges diversity but encourages it; but which allows us to come together as a common agency to deal with common problems that we must face. Euro-federalism is dead and the Lisbon treaty wrote “RIP” on its coffin.
Thirdly, it is extraordinary how much dust has been kicked up around the Lisbon treaty by critics because, surely, it supplies the UK with more or less everything it asked for and the model of Europe for which successive Governments of this country have pushed. We wanted a Europe which was open and flexible; we have a Europe which is open and flexible.
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The French Parliament has just wholeheartedly endorsed the Lisbon treaty; it is almost certain that the Dutch Parliament will do the same. The two countries which voted down the previous form of the treaty will endorse the current one and I am quite clear that we should follow in their path.
I can have some sympathy with those who are against us being in Europe, the full-blown Eurosceptics. It is a consistent case which can be argued even though I radically disagree with it. However, I cannot see the possibility of some kind of half-way position which the Tory party seems to advocate. It is not possible to live in a house somewhere out in the suburbs when everyone else is living in a community in a completely different neighbourhood on the other side of town.
7.06 pm
Lord Astor of Hever: My Lords, my concerns relate to that part of the Lisbon treaty that the draftsmen call the “external action” of the Union—matters that we think of as foreign policy and defence, security in the most important sense of the term, and controlled military action in support of those policies as required by our national interest. That it is right for us to consider these with some care is underlined by the fact that the procedure followed by Her Majesty’s Government in the other place meant that the amendments on these concerns were not debated. The tests that I believe it is right to apply to the treaty in relation to these matters are: first, what do the countries of Europe need to do to be able to work together more effectively on these matters; and, secondly, how far will the provisions in the treaty advance useful answers to these needs?
By common consent, the nations of Europe need to strengthen their military capabilities, make better use of their defence budgets and so organise themselves that they can act together more decisively when intervening in conflicts, conflict prevention and the response to threats and attacks in the several insidious forms that they can take in the world today. So how does the treaty come out when tested by these objectives? At first sight, it gets a middling grade at best. It says a number of the right things and appears to hold back from some of the more objectionable changes that it might have entrenched. But, when it is examined more closely, it can be seen to point in dangerously wrong directions.
Over and beyond the wish and the decision to act, there is the all important matter of the perceived readiness to act and the capability to do so. As the recently published Command Paper The National Security Strategy of the United Kingdom: Security in an Interdependent World correctly puts it,
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our Armed Forces is of the essence. In this—the development by the countries of Europe of improved and more effective capabilities, force generation and the deployment of that force—the European Defence Agency is designated by the treaty as having considerable importance.
In debating the Bill, we have the benefit of the thorough examination of the treaty undertaken by our European Union Committee and, in particular, Sub-Committee C, working under the well informed chairmanship of the noble Lord, Lord Roper. Today we are invited to take note of that report, The Treaty of Lisbon: An Impact Assessment. Considering this necessarily substantial document will help us to understand how important, and how potentially damaging to our national interest, this treaty is.
I commend to the House another recent report by the Defence Committee of the other place, The Future of NATO and European Defence. While the scope of the report extends well beyond the difficult—indeed, contentious—issue of NATO-EU relations, it emphasises in relation to the Lisbon treaty how important it is that the treaty should not undermine the fundamental, leading role of NATO in the security and collective defence of Europe and its member nations. The report gives a carefully considered, unanimous, all-party view. I believe that the continuing leading of NATO is of the highest priority. The report refers to NATO as,
a relationship that I enthusiastically support. I am therefore pleased to find that in their national security paper the Government state:
“The partnership with the United States remains our most important bilateral relationship, and central to our national security”.
These words from the heart of government caution us, if words mean anything, to move only very carefully, if at all, in the direction of European defence as envisaged by the draftsmen of the Lisbon treaty.
On the NATO-EU relationship, I differ emphatically from Her Majesty’s Government, who, as the Defence Committee points out with concern, have not included an improvement of that working relationship as a key British objective at the forthcoming NATO summit in Bucharest. In this I stand absolutely with the committee and its views, developed over two years of careful and extensive inquiry, and against the Government with their basically dismissive attitude. If the Lisbon treaty may exacerbate rather than ease that relationship, that is of itself a sufficient reason for the United Kingdom to reject the Lisbon treaty.
In this connection, I invite noble Lords to consider section 6 of the Defence Committee report, which discusses NATO and the European security and defence policy and recounts the evolution of the ESDP since it was launched by the former Prime Minister and President Chirac in 1998 at St Malo. The section begins by pointing out that the Lisbon treaty enshrines,
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So much for the Government’s contention that the Lisbon treaty changes nothing and that therefore it does not merit a referendum.
I turn from issues of procedure to the substance of the treaty. I shall highlight briefly five points that roused my anxieties, as they point away from responsible co-operation between the nations, which I welcome, towards a single, centrally controlled system, disconnected from direct responsibility to the public.
First, on the role and powers of the high representative, that appointment confuses the important distinction between the role of the Commission and the responsibilities of the Council of Ministers, strengthening the former at the expense of the latter. The high representative, by also being Vice-President of the Commission and head of the European Defence Agency and by having a right of initiative to propose EU military operations, will for the first time blur the line between what is intergovernmental and what is supranational in EU defence planning.
My second concern relates to the diversion of scarce defence resources into structures that duplicate those of NATO and add nothing to sharp-end capabilities. Thirdly, and directly linked to the previous point, I point to the apparent determination in planning EU operations to sidestep the Berlin-plus arrangements with NATO. This illustrates all too clearly how a sensible and reasonable declared arrangement can be negated in practice by those working to a different agenda.
Fourthly, I refer to the concept of permanent structured co-operation in defence. At first sight, the headline is thoroughly attractive, but an examination of a list of ingredients shows quite the opposite. Direct, one-to-one bilateral arrangements between nations that are willing and able have everything to commend them, as between ourselves and France over the aircraft carriers, but that is not what the permanent structured co-operation means in the treaty. It means multilateral arrangements allowed only when subject to detailed preconditions and when sanctioned and organised through Brussels.
My final point brings me back to the European Defence Agency. Similar considerations and objections apply to the treaty provisions for this as apply to permanent structured co-operation. What started off as an acceptable measure of intergovernmental international co-operation is converted by the treaty into a device substituting for that co-operation and mandatory centrally directed Community action.
The Title VI provisions of the Lisbon treaty are in substantially the same terms as those of the rejected constitutional treaty. They make significant changes in the arrangements of shared defence and security. Thus, quite apart from anything else in the treaty, these provisions merit—indeed, they properly require—a referendum in accordance with the election manifesto on which this Government were returned to office.
7.15 pm
Lord Ryder of Wensum: My Lords, the debate has been lengthy and several noble Lords are waiting their turn, so I shall be brief and concentrate on referendums.
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Many of your Lordships will recognise that promises of national referendums by political leaders are seldom issued for reasons of conviction, as noble designs to consult the public—or, least of all, because abstract principles demand them. Rather, referendum pledges tend to be used as devices or hard-nosed calculations forged by some leaders for tactical purposes when they are cornered or feel under pressure. I share the view expressed by my noble and learned friend Lord Howe that Tony Blair’s 2005 promise fell into this category. It was unwise—he need not and should not have made it, but he did. Surely it should be an article of faith that if a solemn undertaking on that scale, as the noble Baroness, Lady Deech, contended, is set out in a manifesto, it must remain sacrosanct; if it does not, the electorate are entitled to regard such commitments as charades and they are entitled to complain about the brazenness of political leaders.
Arthur Balfour was, notwithstanding the reference to him by my noble friend Lord Howell, the first political leader to seek comfort in referendums when, 100 years ago, he flirted with one on home rule and bound his troops to another on tariff reform in a manifesto, solely in an attempt to unite his fractured party. The party remained divided and Balfour lost the election. Harold Wilson, as the noble Lord, Lord McNally, reminded us, was deeply hostile to referendums on constitutional grounds until, as Lord Callaghan admitted, the Labour Party required a lifeboat to rescue it from divisions in 1974.
Then again, as your Lordships will recall, in 1997 Tony Blair promised a referendum on electoral reform in the Labour manifesto—a pledge tendered in the same document in which he declared that,
Of course, as we know, the commitment was included to court his potential coalition partners, the Liberal Democrats—and, of course, like the adept romancer that he is, he failed to honour his word once it became clear that the Liberal Democrats were not needed as partners. So there was nothing noble about the 1997 pledge, any more than there was in 2005 when, under apparent pressure from segments of the media and overanxious about an auction of promises, he reluctantly agreed to a referendum on the European constitution. The 1997 and 2005 covenants, designed for political purposes and devoid of conviction, were shelved when surely it was the duty of the Government to stand fast to their promises. Now Parliament is entitled to invite the Government to meet the obligations that they set out in good faith.
I have always held the view that national referendums are at variance with the constitutional and legal principles of Parliament as we know them. I reached that judgment
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I am disappointed, though not surprised, that the Government’s Governance of Britain Green and White Papers failed to address the relationship between parliamentary sovereignty and referendums. That was a missed opportunity. So, too, was the Prime Minister’s major speech on liberty last October. He swept through British history with references to or quotes from Milton, Bolingbroke and Locke, among a galaxy of others. Yet he, too, failed to address the relationship between parliamentary sovereignty and referendums and the constitutional consequences of such referendums. If political leaders persist with populist pledges over referendums without first confronting the deeper arguments of principle or squaring the circle, they will continue to promise referendums for the wrong reasons based more on convenience than conviction. Who knows, in a few years’ time, we may be debating this question again with the roles and attitudes reversed between Government and Opposition. Many of your Lordships have witnessed history repeating itself before. I hope that it does not do so again.
7.22 pm
Lord Clinton-Davis: My Lords, having listened to the noble Lord, Lord Ryder, I wonder whether he uttered the same conclusions when we considered the Single European Act, Maastricht or Amsterdam. I think that he was silent then.
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