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Secondly, the four main UK opt-outs that are supposed to make us different are almost exactly the same as those given last time when the referendum was promised. I will come to that in detail in a moment.

Thirdly, when one examines the red line safeguards, and when independent examination is made of them, they turn out anyway to be pretty worthless; in fact “leaking like a sieve” was what the Commons EU Scrutiny Committee said. It went on to elaborate, as others have, first that the charter opt-out is not an opt-out at all it turns out, despite earlier assertions by the then Prime Minister that it was. The justice and home affairs opt-out and opt-in arrangements we are told could well be overridden by the European Court of Justice now that they have all been absorbed into the single pillar, which is a major change. In the foreign policy area, the Bill seeks to assert that foreign policy has been excluded from the treaty and that 11 vetoes have been removed. In social policy, there are new EU powers in the treaty to which the UK Government originally objected in vain and again which the ECJ could easily overrule in its judgments. We do not know how the ECJ will reach its judgments on these matters; we will have to see.

To all of this, as well as to the remarkable self-amending powers, which we will come to, which are granted by the treaty to the European Union institutions, we will need to give the very closest attention in our amendments. That is certainly no argument at all for claiming that while the treaty may be constitutional for others, somehow when it comes to the UK it has been sanitised by the opt-outs.

Meanwhile, the one point on which there seems to be general agreement is that the treaty is unintelligible; or as the Lords committee says in its report rather more politely, “inaccessible”. Apparently, that is the intention. It is the main purpose that the import of this treaty should be disguised to prevent what happened to the last one. We take the view, and I quote the Economist, that trying to sneak through a constitution on the sly is highly unwise and does a disservice to Europe.

Nevertheless, there are some people—some intrepid explorers—who have managed to hack their way through the jungle of convoluted phrases and impenetrable verbiage, including our highly expert Lords Constitution Committee, to which we are very grateful. When it comes at last through all the undergrowth to the clearings at the centre of it all, it finds that the treaty measures,

It goes on to quote with approval an expert witness, who speaks of,

inherent in the treaty. The committee urges amendments to the Bill to strengthen parliamentary accountability in the implementation of legislation via the treaty; amendments that it is entirely proper for us to make to the Bill, as we will seek to do. I am very sad that we will not have our Liberal Democrat supporters with us even in doing that, although I thought that they were in favour of increased parliamentary accountability.



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It cannot be right to present this treaty to the public as something different from what it really is. Almost the whole world knows perfectly well that it has major constitutional implications and, furthermore, that it contains the seeds of powerful further constitutional change via the famous passerelle articles, which, again, we will look at very closely. The Prime Minister says that there will be no more change or transfer of powers, but the President of France, Mr Sarkozy, who visited us the other day—a man of great seductive charm—is already proposing that work should begin on the EU’s next round of integration. That can only mean more constitutional change, more powers to the centre and yet another move for Europe in the wrong direction, which will be taken presumably under either the self-amending provisions of this treaty or the next treaty, since Mr Sarkozy believes that this one leaves a great many issues completely unsettled. He is probably right.

Party leaders are always talking about the need to restore trust in politicians and Parliament and to reconnect with the people. The people clearly want a say. The opinion polls make that absolutely certain and we shall be moving amendments on that precise matter. But as a first step, at least we have to tell the people what is truly in store for them, what is on offer and what is really inside the packaging of this treaty that purports to be so different from the previous one. We believe—

Lord Hannay of Chiswick: I thank the noble Lord for giving way, but can he answer a simple question for me? Why did the Government who he supported introduce the Single European Act and the Maastricht treaty, both of which contained many more far-reaching provisions than this treaty, without inserting the words of the amendment in the Bill brought before Parliament?

Lord Howell of Guildford: It is not actually a simple question. I would not expect a simple question from such a learned and authoritative source as the noble Lord, Lord Hannay. Why were these worries not as great then as they are now? It is a principle that the committee in the other place made very clear. It is a question of accumulation and a tipping point. As we advance with yet another 41 or 51 vetoes, or whatever the figure is, with yet another huge step towards integration, one reaches the point when it has gone too far. Those of us who love Europe—a sensible and modern Europe and not an overcentralised Europe—can see that point clearly in perhaps a way that the noble Lord cannot.

That is why, at this stage, we perhaps need to take even fiercer and stronger steps to protect our parliamentary accountability than other countries which have their own constitutional courts—which we do not have. I do not know whether the noble Lord has grasped that point. If he has not, I suggest to him that we need very strong accountability in our Parliament, because we do not have the constitutional court back-up that is available in France, Germany, Spain, Hungary, the Czech Republic, Italy or any other European member state. I think that that answers the noble Lord’s question and I hope he will be convinced by what I say.



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We will of course be moving amendments on all these matters, but, as I was saying, it is necessary to state clearly on the packaging what is inside the parcel. We believe that it is proper, transparent and honest to state openly in the Bill the real nature of this treaty. Accordingly, we urge that these amending words now be added. I beg to move.

Lord Owen: I support the amendment. It does not matter, I suppose, if it is not put in the Bill, but its intention and the clarification that it incurs seems pretty important to me. One of the more distasteful aspects of this debate has been the pretence that we are not dealing with constitutional points.

I shall deal with the point raised by my noble friend Lord Hannay. There is no question that the treaty of Maastricht was a constitutional treaty that was put to the people of this country in the general election of 1992 by the then Prime Minister, John Major. He won the election and that greatly reduced the case for a referendum, although I believed that, because so much division of opinion remained, it would have been beneficial to have had a referendum. The European Union amendment Act, which brought in the single market, was also constitutional, although less so than the Maastricht treaty. I believe that the Maastricht treaty was extremely important and good. Its pillared structure tried to introduce a much needed clarification of the separation of powers exercised predominantly by the Commission and the Parliament.

The supranational elements should be defined as such and we have to accept that that is an aspect of the European Union, of which we are a member. There is a supranational element within it, and that has always been controversial. It was hotly debated in the House of Commons, of which I was a Member when the original treaty went through. I believed that some measure of pooling of sovereignty was a reasonable part of the European commitment and I have never changed from that view.

The question, which was becoming more clouded prior to Maastricht, was: was any element specifically not supranational? The great benefit of the pillared structure was that it defined those elements that were not supranational and were the province of the member states. They included foreign policy, defence policy and some aspects of the judicial process. In my view, it would have been much better to maintain that separation in the current negotiations, and I believe that it was a triumph for those who want all aspects of European activity to be supranational to have got rid of the pillared structure and to have, in effect, no great distinction. That is one reason why I believe that this treaty should never have been negotiated in the first place.

However, it can be claimed by the Government that in the past year, when there was an attempt to renegotiate the treaty, that was the one area where significant improvements were made. I pay tribute to the legal advice given to the Government during that period and to the determination to try to improve the treaty. Of course, we were greatly helped by the fact that the French and Dutch knew perfectly well that

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there was no possibility of avoiding a referendum unless there was more clarification. The way in which the treaty was drafted and the reversion to an amendment Bill have led to some considerable improvements in defining foreign and defence policy as being between the nation states—the signatories to the treaty—and not supranational. However, other aspects are not fully clarified.

Whatever else, and as I have already indicated, the Government can claim great success in doing that, and no doubt we shall hear that that is the case. That only goes to demonstrate that this is a constitutional Bill. The Government have to grapple, first, with the decision to get rid of the pillared structure of the Maastricht treaty, which is itself a fundamental constitutional question, and then, post-Giscard d’Estaing, they have to try to restore some of the structures of Maastricht but in a different way through amendment. Therefore, as I said, I cannot possibly argue that this is not constitutional.

The other argument has been used very effectively in another place—perhaps not in the Parliament but certainly in the country. When the former Foreign Secretary, Jack Straw, argued for a referendum, he made it clear that this was a constitutional Bill because it created a new post—that of the European president of the Council. He also mentioned the double-hatting, with the special representative for foreign affairs becoming also a vice-president of the Commission. These are deeply constitutional questions. If you have previously argued that the special representative for common foreign and security policy, Javier Solana, who in my view has done the job with incomparable skill and demonstrated that we needed that post, should also be made a vice-president of the Commission, you blur the distinction between foreign policy being for the member states and a member of the Commission being supranational. I shall not go into the arguments for or against it now. There are arguments for it and it tidies up some aspects, but its fundamental weakness is that it blurs that distinction. Nevertheless, it is a constitutional question.

3.30 pm

The new role of President of the European Council is fundamentally a constitutional question. Hitherto, presidents of the European Council—a council of Heads of Government—have been composed entirely of people who are themselves members of the Council; they are heads of the European states, elected and answerable to their electorates. We now have a completely new position. We can, and no doubt will, argue at various stages whether it is right or wrong, but this is a constitutional matter. In my view, it is profoundly wrong. We always knew that the six-month rotation would have to change once the Community was composed of many more than 12 member states. Very few people will deny that you cannot have the President of the European Council changing every six months. However, alternatives were put forward such as the grouping of member states, which already exists. Such groupings could be much more formalised, with the largest state within a grouping holding the presidency of the European

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Council for 18 months or two years, which many of us would think was sufficient time for anyone to be president of the Council.

Those are matters of argument but who can deny that they are constitutional? It is impossible for the Government to change their minds about this because, in my view, in order to win this argument about a referendum, they rather foolishly jumped on the argument that this is not a constitutional Bill. They would carry more conviction in this House if they openly admitted that it is constitutional but that its nature as a constitutional Bill does not pass the threshold of importance for a referendum. There is a case for that. We have had some amendment Bills on the constitution which have not been of massive importance and about which most of us would have said, in a flexible structure of referendums, that we did not need a referendum.

Personally, I have always been apprehensive about adopting the practice used in the Irish Republic of automatically needing to have a referendum however small the constitutional amendment may be. I am beginning to realise why the Irish legislature and the Dáil, in their wisdom, decided on that: it is the only way in which one can cope with a Government’s capacity to argue that black is white and white is black. In this House, I, along with the noble Lords, Lord Healey and Lord Prior, once proposed an amendment, trying to make a distinction for a referendum between constitutional matters and non-constitutional matters. I admit that it was quite hard to do and one had to put in an arbiter, and the only one we could think of was the Speaker of the House of Commons, who does not always like that position but prefers matters to be dealt with by the usual channels.

When we have a Government who insist that major constitutional matters in the European Union are automatically matters for referendum, they will have to define what is a constitutional Bill or they will simply need to have a referendum for every amendment, which is not a desirable course, as I say. I shall delay the Committee no further. It seems to me to put logic on its head to argue that this is not a constitutional Bill. You can argue that it is a very desirable constitutional Bill; you can argue that it is not a major constitutional change; but to argue that it has no constitutional elements in it seems to me to be quite unsustainable.

Lord Lester of Herne Hill: I do not know whether the noble Lord, Lord Owen, is an enthusiast, as I am, for the political novels of Anthony Trollope, but if he is, he will remember that there was constant reference by parliamentarians throughout the last part of the 19th century for what they called Constitutional Questions, and the Radicals, Liberals and Conservatives argued back and forth whether something was or was not a constitutional question; it could have been 1880, although it is now 2008. I do not think there is any value in spending a lot of time on that question.

There would be value if we had a written constitution and if, as the noble Lord, Lord Howell, seems to wish, we had a constitutional court that had to decide whether something was or was not a constitutional question. We do not have that. We have a rubbery, elusive, unwritten constitution with all the benefits

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and burdens that that creates. If one were serious in seeking to answer the question posed by the noble Lord, Lord Hannay, the answer would not be that of Karl Marx given by the noble Lord, Lord Howell, that a change of quantity brings about a change in quality—dialectical materialism. I was pleased to hear that the Conservative Benches had become Marxist. That is not the right answer. The right answer is that in truth the constitutional arrangements between this country and the European Union were profoundly altered when we joined the Community, when the noble and learned Lord, Lord Howe of Aberavon—I am not sure whether he is in his place—

Noble Lords: He is here.

Lord Lester of Herne Hill: The noble and learned Lord and Edward Heath performed a masterly exercise in their short Bill in profoundly altering the constitutional relationship. Other pieces of legislation have done so. Whenever we enter into a treaty—not just a treaty under the European Union—we alter what could be called constitutional relationships.

I had the pleasure and burden of having to read the whole treaty in this case as a member of Sub-Committee E of the Select Committee on the European Union. I am bound to say that compared with previous treaties, including Maastricht and our original adherence, this is an important one but I would not dream of attaching the term “constitutional importance” to it, making it more important to our arrangements than all the other treaties to which we have adhered as members of the European Community.

The real questions, as I think the noble Lord, Lord Owen, indicated, are not formalistic ones about whether a Bill is constitutional or whether a treaty is right for us to join. It is the merits that matter, and I would find it extraordinary if Parliament were to decide to write into this Bill for this treaty the words in the amendment, which could apply to a great string of Bills implementing international treaties over the past 40 years. The question posed by the noble Lord, Lord Hannay, is the right one, and the answer given by the noble Lord, Lord Howell, is not the proper answer.

Lord Campbell of Alloway: I would not have intervened but for the fact that the noble Lord, Lord Hannay, intervened. With respect, I do not agree for a moment that his question was the right one. First, we need only listen to what the noble Lord, Lord Owen, just said. Secondly, we have to take into account the fact that this is a self-amending treaty, which traduces the sovereign interests and entitlements of this country. Thirdly—and I shall be brief, as I had not intended to speak, as I said—the assertion from the Liberal Benches that what the noble Lord, Lord Hannay, said, is justified is totally misconceived.

I was involved at a very early stage at Messina—long before many of your Lordships because I am so old—where there was a fundamental disagreement. There were two prisoners of war there; I was interested in the issue because I was a prisoner of war, and we did not want any more wars in Europe. That was the fundamental basis of what we determined to do, and I have lost faith in what is happening now.

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There is a totally different objective; we are a large group of 37 states, bordering on the former Soviet Union, creating problems that we cannot resolve with it or, indeed, with China, which could be better resolved by ordinary diplomacy.

As my noble friend Lord Howell said some time ago, we are moving in the wrong direction and we have to watch it. The fundamental distinction has never been resolved—not at Messina, not at Maastricht and not with ever-closer union—and will not be until we ratify this treaty. We have never accepted a federalist administration. We stood against it. We would not have gone into it with one. I know that from my little experience. So what happened? At Messina, they decided that they could not resolve it and so would leave it out of the Rome treaty, and they did. There it was. A court of justice was set up and left to resolve it, and my word, it did. It inevitably went for it with a federalist approach, unlike our approach of retaining our own sovereignty—incidentally, that was de Gaulle’s approach too.

I shall not go on any more. Here we are today. This has not yet been resolved. I do not want it resolved against the interests of the sovereignty of my country and therefore, as matters stand, unless we can come to some accommodation, I am not happy with the treaty.

Lord Stoddart of Swindon: The noble Lord, Lord Lester, is absolutely right. The European Communities Act 1972 fundamentally altered relations in this country and this country’s constitution. That is why some of us who were against that treaty spoke and voted against it and have been against any further erosion, if I can put it that way, of British sovereignty through the various treaties that have been passed by this House and another place over the years. The country and Parliament were undoubtedly misled by the idea that we were simply joining a common market. They should not have been; anybody who read the treaty of Rome, as the noble Lord, Lord Lester, has, realised that that was the start of a great journey that was bound to end in a federal European state. There is no question about that in my mind, and that is why I have remained an opponent of our membership of the Common Market, which has now become the European Union. I believe in the unity, freedom and nationhood of the United Kingdom, and I believe that that cannot be maintained as long as we are in the European Union.

However, we are not discussing staying in or going out, we are talking about this treaty. We talk about democracy in this country; indeed, we lecture other people about it, but democracy is not about having elections every five years or about putting something in a manifesto and then saying things have changed, although they have not changed, so we do not need to implement that part of the manifesto. I am talking about the promise in the manifesto of each major party that there would be a referendum on the constitutional treaty. The Government say, “It is not the constitutional treaty”, although some of us have read the Lisbon treaty and the constitutional treaty and took part in the debates on the constitutional treaty in the Joint Committee set up between both Houses of Parliament. We know that the constitution has been transferred to the Lisbon treaty.



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3.45 pm

The Government are making a big mistake—no doubt we will come to this later in our debates—in not going for a referendum. If they are confident in their policy, if they are confident in what they say about the Lisbon treaty, if they are confident in the role that they are taking, they ought to have the courage to go to the people to say, “Look here, we are at an important point of our progress within the European Union. Now we want you to have a say”. That is real democracy; it is not trying to get round a promise that you have made in a manifesto which you are frightened that you may not be able to keep if the people say you cannot do it. The question of democracy must be put in its proper context. I fear that the Government’s failure—and the failure of the Liberal Democrats to deliver on a manifesto promise—will not do them any good.


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