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What will happen if, on a qualified majority vote, the European Council proposes that there should be such a merger? The British Government will oppose it and it will then go to the European Court of Justice. What will happen if that court says that the Dutch Government were right all along and the British Government were wrong? Tomorrow, I shall table a new clause to try to ensure that we have an appeal mechanism on the interpretation of the wording that, if necessary, goes right up to the Supreme Court. I have no reason to believe that the wording will be right but anyone—preferably the Government—can take it on because I, as a mere Cross-Bencher, cannot propose it. Such a mechanism is, after all, open to us in relation to all other legislation. If, during the passage of this legislation, we were assured that a merger of this kind could not happen but then it did happen, we could at least appeal to the Supreme Court. Politically, the Government’s position would be greatly strengthened by saying that up with this they could not put.
Because of the way in which the wording of the treaty has emerged, aspects of it have great dubiety. Let us take another example. It is said that the European Court of Justice cannot be involved in matters of common foreign and security policy. However, under the Lisbon treaty, for the first time the European Council is subject to the jurisdiction of the European Court of Justice. In the CFSP parts of the treaty, the Council is not subject to the Court, yet we are told that in the European Council one of the roles of the new President—about which I have views but that does not matter; we have it here and now—will be ensuring the external representation of the Union on issues concerning the CFSP. Again, what happens if the European Court of Justice uses that role or that mention of the CFSP to come in on the whole role of the CFSP? People may say that that is far-fetched but we have seen it happen. The noble Lord, Lord Wedderburn, has called it a creative Court. In the past, it has made some very strange judgments—I put it no higher than that—and I think that we need the safeguard of being able to appeal to our new Supreme Court on the interpretation of the treaty’s wording. That would have great value.
I want to be able to support a referendum on this treaty—I do not want to vote against it. Personally, I think that there should be a referendum, if for no other reason than that the then Prime Minister told the people of this country that there would be one. However, I am afraid that we could very well find the situation that was hinted at earlier—that is, in, say, 2010-11 there will be a rerun of the situation that we
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The former Foreign Secretary, the noble and learned Lord, Lord Howe, said something with which I strongly agreed. He warned about the danger of not ratifying the treaty. We may not like where we are. I do not like this treaty. There are many problems with it, although it is a great deal better than the constitutional treaty that came out of the Giscard d’Estaing convention, which was a perfect disgrace; in my view, it has been improved. Nevertheless, for us to reject it would have profound political implications in Europe. None of us should lightly cast this off.
I can see a situation where a new Government, were they to be elected in 2009 or 2010, might well, if they were a Conservative Government, have to come back to the people of this county and argue for a referendum that we should stay—having made some of these changes to strengthen the case, I hope, if they had not been made by the present Government. Therefore, in the next few months we have to address the important issue of improving the treaty and making it more acceptable to the people of this country.
8.28 pm
Lord Inglewood: My Lords, in my few remarks this evening I shall address three aspects of the Bill: first, whether we should ratify the treaty; secondly, how the decision on whether it should be ratified should be taken; and, finally, leading on slightly from the remarks of the noble Lord, Lord Owen, some of the implications of Clause 6, the most interesting part of the Bill.
Today we have had many hours of interesting debate about the meaning and implications of the treaty. For weeks and months we have had interesting debates about the implications of different bits of the treaty, but we are moving to the point where those discussions come to an end. We have to decide whether we in this county actually ratify it. We cannot reverse engineer it; it is a package. We have to take it or reject it in its entirety.
In my view, the treaty contains good parts, bad bits and bits that I am not sure about. Some parts I think that I understand; others, I am not so sure. But it is no good me standing here like some doubting Thomas. Like everyone else, I have to take a view about the whole. On balance, I say, “Yes, we should ratify it”.
Against that background, and in the context of the world and the circumstances that we all find ourselves in, how as a nation should we take that decision? In particular, should there be a referendum? Looking at the strict constitutional position, I think that there is no stipulation that there should be a referendum. One problem with referenda in this country is that their use
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There is an indissoluble link between the Government’s ability to implement their programme, their majority in the House of Commons and their continued existence. If it is decided that in certain ways our constitutional arrangements should be changed so that important constitutional and public policy matters are decided not by Parliament but by referendum, it follows as night follows day that the loss of a referendum on such topics should be treated as a vote of no confidence and a general election should ensue. Indeed, if we as Parliament do anything other than that, we are becoming a patsy of the Executive. That would be very wrong.
The problem now is that current politics seems to have been completely destabilised by the muddle bequeathed to us by Harold Wilson and the ensuing invocation of the mantra “referendum”. No one knows, as is clear from the debate today, quite where they stand. Contrary to the proposition at the time that the referendum would bring closure, it is becoming increasingly clear—I speak as an ex-MEP who has spoken at countless meetings about EU matters—that the effect of the referendum was to give those who disliked the result the view that, if only they could somehow get another referendum, with one leap they would be free. It would be just the same had the result of that referendum gone the other way. We cannot go on like this, somehow trying to deal with the question of EU membership by surrogate.
We have been in the European Union for a longer period than that between the death of Queen Anne and the battle of Culloden. While it is sometimes difficult, we have to work in the European Union from the inside. That is precisely what my noble friend Lady Thatcher did, when she was Prime Minister, at Fontainebleau. She got what we wanted.
We need clarity about the rules and principles. I do not disguise the fact that I am a long-standing believer in representative parliamentary democracy. If we are to have a referendum—I am not necessarily against that, although my instincts are to the contrary—let us enshrine the principles in statute, just as certain matters have been enshrined in Clause 6 of the Bill, so that everyone knows where we stand.
Given that there is no constitutional requirement for a referendum, should there be one? I am a Conservative, for which I make no apology, and I start from the Conservative proposition that, if there is to be a change from normal and established constitutional practice, the case must be made for change. In the present circumstances, I do not think that the case has been made.
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It has been said frequently this evening that many people want a referendum, but it is equally true that a lot of people do not want a referendum. They think that we are here to decide what is, by any measure, a difficult issue. Perhaps I may quote from the report of the European Union Committee, which says at paragraph 2.6:
“The Lisbon Treaty itself is, however, a complex document, not easily accessible to the people whom it affects, and this is likely to be an obstacle to informed debate as to the merits of the Treaty”.
Many people think that this is a very important issue. It is a very difficult issue and they do not want to be treated as if it were “Celebrity Big Brother”. I believe that people in this country are entitled to expect that significant legislation will not be dealt with capriciously by our system and that it will be carried out in accordance with ordinary constitutional arrangements, unless and until procedures are changed. I do not support, and I do not believe that the British people support, a kind of Harold Wilsonian dodging and weaving to see a way through the muddle. It is also said that the Government pledged a referendum on a different treaty, albeit a somewhat similar one. This may come as no surprise to some noble Lords, but I do not consider myself to be bound in any way by a Labour Party manifesto pledge.
In conclusion, I find myself at variance with my party on this issue; I very much regret that, but I am afraid that it is so. However, as I intimated in my opening remarks, I think that in many ways the most interesting aspect of the debate in the other place and of the Bill concerns Clause 6, which introduces binding provisions in statute, constraining the way in which any future Government will deal with certain opt-outs and possible changes to the way in which the European Union works. That is a very important development.
I have some sympathy with the noble Lord, Lord Owen, and believe that we might move from using a resolution of both Houses, which has the one, supreme advantage that the Parliament Act does not apply, to effecting those changes by Acts of Parliament. As no Parliament can bind its successor, I see no reason why one should not opt out of the Parliament Act in those circumstances. We all know that one of the great problems in this country about our membership of the European Union is that many of our citizens feel alienated from it and many of our national institutions, not least the national Parliament itself, feel that there is a division, wider than that between Dives and Lazarus, between them and the European Union institutions. If the kind of provisions contained in Clause 6 can be developed further, there is a real chance that we might be able to reduce that divide, lessen the alienation and bring them together.
Clearly, we cannot have a system where Parliament binds the Government to a voting mandate, but in certain circumstances we can have a relatively simple process that gives Parliament a quick and accessible lock over what the Government are doing in the Council of Ministers. I would like that aspect to be examined in a little more detail to see whether it has wider application. If we could do that, I believe that there is a real chance of increasing the acceptability of
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8.38 pm
Baroness Turner of Camden: My Lords, I welcome the opportunity to participate in this important debate. I start from the basis that I am pro-Europe. I believe that the EU and our membership of it have been of considerable benefit and I am generally in favour of closer involvement. However, some questions arise that I think require explanation from the Government, at least as regards the Lisbon treaty. Our debate takes place against the background that all the major political parties promised a referendum. It is now claimed that the new Lisbon treaty is not a constitution and that the referendum promise related to a constitution that has been abandoned.
We are told that the treaty is fundamentally different and that therefore a referendum is not necessary. On the other hand, many voices have been raised, including some very expert voices, to the effect that the new treaty covers much the same ground as the constitution and that the substance is not much different, except perhaps the wording. Moreover, the Government claim that they have negotiated protocols and opt-outs, or opt-ins, representing a system of red lines that allow the UK to exempt itself from certain provisions. In this way, it is apparently believed that the treaty will become more acceptable to those who are sceptical. I would like to speak about those red lines.
The Charter of Fundamental Rights was proclaimed in 2000. It is given legal status in the Lisbon treaty and in content is almost the same as in the draft constitution. Trade unionists have always seen in the charter a declaration of the right to bargain collectively on behalf of members and to take industrial action, although the latter right is somewhat constrained by the requirement that such action be proportionate and undertaken only as a last resort. It appears that the UK and Poland, albeit on a different basis and in a different context, have negotiated not an opt-out, as some have suggested, but a protocol. The intention of the protocol was to maintain the primacy of domestic law in this sphere. However, according to the report of the House of Lords European Union Committee, the protocol is simply interpretive; in other words, the courts will ultimately decide.
In view of the greater powers allotted to the European Court of Justice in the treaty, the final decision may well lie with the ECJ despite the protocol, but this is by no means clear. Nevertheless, the question arises: why did the Government think it necessary and then declare it as one of the red lines specifically covering UK interests? This could have an unfortunate symbolic effect. Why are UK citizens to be denied rights that would otherwise be available under the charter?
The TUC raised this issue sharply in its evidence to the House of Lords European Union Committee. The TUC welcomed the charter, but was concerned that the existence of the protocol might hinder access to existing EU-based workers’ rights and that, in the
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I hope that the Government’s argument is not, yet again, the need to preserve our wonderful flexible labour market, which tends to be flexible for employers rather than workers. Our economy relies, perhaps far too much, on financial services and we are already beginning to see rising unemployment in that area. Manufacturing jobs have been lost in the last decade. Rights for workers are necessary to achieve and maintain a stable workforce, no matter what the proponents of the free market may maintain. Why should a Labour Government seek to undermine such rights, or at least appear to be doing so?
Another negotiation undertaken by the UK Government resulted in the provision of an emergency brake for social security measures for migrant workers and their families. At the same time, there is provision in the treaty promoting the rights of the child. I wonder, therefore, how the emergency brake that the UK negotiated is likely to affect the children of migrant workers. What is the purpose of the brake? If migrant workers are here legitimately, why restrict their rights? What is the purpose of that?
It may well be that the red lines are not expected to have much of an impact but are there simply to deal with some of the questions raised by those who otherwise might oppose the treaty, but I doubt whether they will have that effect. Indeed, the more I study the material that has become available, the closer I come to the view that very considerable changes of a constitutional nature are intended in the Lisbon treaty. There will be a full-time President and a high representative on foreign affairs, with what appears to be much more co-ordination on foreign policy. A President and a Foreign Secretary? That sounds very much like a constitution.
The European Court of Justice is to have much greater power. It is to have massive jurisdiction over the European Parliament, the European Council, the Commission and the European Bank, as well as over member states, and it will be able to take them to task for improper acts or even failure to act in ways prescribed by the treaties. Penalties and fines can be levied to enforce its orders. These are constitutional issues. For the reference to the ECJ and its powers, I am indebted to my noble friend Lord Wedderburn and the pamphlet that he has written for the Institute of Employment Rights, of which I am a member; the pamphlet is to be published on Friday. I regret that he has been unable to attend the House today to put his views before your Lordships.
The treaty covers an enormous range of issues on which changes may be envisaged in the future, including energy, the environment, agriculture, fisheries, social affairs, migration, security, foreign affairs and criminal law. Then there is the procedure for the revision of the treaties—known as the passerelles, or bridges—enabling procedural requirements or adjustments to be made without formal treaty provision. Currently, such decisions
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The House of Lords European Union Committee itself envisages that substantial changes will be necessary in its own procedures should the Bill be passed. I therefore feel that claiming that this is a treaty without far-reaching constitutional changes will not be acceptable to many people. Indeed, despite my commitment to the European idea and a belief that closer involvement should be embarked on, I feel unhappy that the Government continue to claim, via this Bill, that a referendum is unnecessary.
8.45 pm
Lord Marlesford: My Lords, I am a firm believer in continued British membership of the EU. I want us to be on the inside at the informal top table of Europe. I suggest that that table should be an E8 rather than an unmanageable E27. We would be with France, Germany, Italy and Spain, to which I would add Portugal, Holland and Poland. That would give us a QMV weight of 56 per cent. However, we must recognise that in Britain, public support for, or even acceptance of, the EU is very fragile, and increasingly so. The point the noble Lord, Lord Hannay, made about the reassuring abandonment of the symbols of sovereignty will not fool the British people. In this, as in so many other matters, my party is now closer to what the British people feel than are the other two parties. That is why I believe that the Government, having been foolish enough to offer a referendum, would have been wise to agree to hold one, but probably with two questions so that there could have been a strong British vote for remaining inside the EU whatever the decision on the treaty. I am afraid that this is another example of the Prime Minister’s dithering leadership of our country. The Government are en prise and so there will be no referendum. I see little point in going on about it.
There is much that is good in the Lisbon treaty, but to me the most objectionable section of the treaty is Article 48 which encompasses the notorious passerelle, or self-regulating nature, of the treaty. Without that article, I would have backed the treaty. Sovereignty is the basis of a state, and sovereignty must be underwritten by the people for it to be a democratic state. My noble friend Lord Lawson referred to the American constitution. He used it as an example of the virtue of a constitution. I agree with him on that. It is a magnificent document that has lasted almost intact for 200 years. The 28 words of the 10th amendment to the American constitution, which forms part of the famous Bill of Rights that dates from 1791, puts so clearly and concisely the need to draw a line between a federation and its components that it is worth quoting in full:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”.
What beautiful language. If only the drafters of the Lisbon treaty had had the literary and jurisprudence skills of James Madison. To change any part of the American constitution is no simple matter, which is
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The way in which the Lisbon treaty was agreed, that hurried decision in Brussels on 23 June during the last days of Mr Blair's premiership, is suspect. What deal was done with Mrs Merkel? Was it return for Mr Blair’s plea for Germany to send troops to Afghanistan, troops who turned out to be largely non-combatant? If so, it was not a good deal for Britain.
To me, to abrogate from direct parliamentary control any further loss of sovereignty is simply unacceptable. The Government have of course offered in Clause 6(2) that Parliament has to approve any use of the passerelle. But it is only a simple vote, not a full piece of legislation, which is why I support the suggestion made by the noble Lord, Lord Owen, of primary legislation. The noble Lord, Lord Grenfell, referred to both Houses having a veto over any use of the passerelle. I doubt whether that is what the Prime Minister has in mind; he normally refers only to the House of Commons having a vote.
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