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I fully understand that we will have nine days of debate and come to a serious decision at the end, with a vote no doubt, on whether this treaty should be discussed with a view to ratification, as the Government propose, in the parliamentary procedure, or whether it is of such importance and such a constitutional nature that there should be a referendum. That is the main part of the issue ahead of us. It is the soap. Today, we have the trailer, because we have not come to that decision, and there are disagreements in the Committee on whether there should be a referendum.

For the moment, I shall stick to the narrow issue of the amendment as proposed. We are sometimes so wide of perspective in this Chamber that we do not quite notice the narrow points, so I allocate to myself a chance of looking at the specific point. I heard the arguments of the noble Lord, Lord Howell, but I question whether it is right to change the system under which we simply list treaties, as we have in the past, important or not, in the European Communities Act. On the whole, I would prefer not to do that, because we have followed a different procedure, even on important treaties, in the past.

My second point has not been made and may be disagreed with by the movers of the amendment. The amendment as proposed is in Eurospeak. When people start talking about altering constitutional arrangements, they are easily understood in this Chamber. However, in the greater part of our kingdom, people do not clearly understand what that implies. I can understand that some Members might like to spell out in much greater detail, as suggested here, not in these words but in a fuller description, what this treaty is concerned with, but, as it stands, it does not tell the citizen very much. It tells us that we are specialists; we know about constitutional arrangements or think that we do; but ordinary citizens do not gain very much from there being written in at the beginning of a list of treaties

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something which says that this treaty alters constitutional arrangements. I understand the motivation behind the amendment, but it does not do much good for the consumer for this to be written out. It tells them very little. I make that point because I have not heard it made by others. In the course of nine days of debate, it is extremely important that one or two points be made which have not been made by other Members of this Committee.

Lord Blackwell: I support my noble friend’s amendment and speak to Amendment No. 125 in my name, which is in the same group. Like other noble Lords, I should very much like to get down to the substance of these treaties but it is difficult when the Government continue to deny in effect the substance of what we are supposed to be debating—the consolidated text, or the end result of it. This is not a historical textbook; it is not even a novel by Trollope. It is a substantive document that sets out the basis on which the EU will be run and governed over the coming years. It is very difficult for a common-sense reader not to conclude that it is a constitution for the European Union.

There is an executive answerable to the European Parliament, increasingly sharing powers with the Parliament rather than answerable to the nation states, as was originally intended. The treaty declares for the first time that the European Parliament creates democratic legitimacy for the European Union as a sovereign entity in its own right, with increasing powers for that Parliament. It has a powerful president, who will shape the agenda of the Union, and its own court, which is not answerable to any other court but is the highest court in the territory in which it operates. It gives the European Union a legal identity and the power to enter into international agreements. The nation states, which used to be in charge of this thing, are now relegated to the status of members of a senate, in which they have majority voting to decide what they do or do not agree with, and can be taken to court under a number of provisions of this treaty if they do not do as the European court has ordained it that as nation states they should do.

Any common-sense description of this treaty would say that it was a description of a sovereign entity called the European Union, and that this was its constitution. Noble Lords do not have to take my word for it, because the Government published exactly the same text two or three years ago with the label “EU constitution” on the front of it. Yes, the articles have been put in a different order—but at Second Reading I made the point to the Minister that I could find only two articles in the constitutional text that were not reproduced in whole or in part in the Lisbon consolidated text. The Minister did not reply at that stage and the Government have studiously avoided giving us that comparison. If they seriously want to make the argument that this document is different from the constitution, I challenge the Minister to set out which articles she thinks are in this text that were not in the constitution and which articles were not in the constitution that are not in this text. I say that there are two—and I should like to hear her contradict that, if she wants to take these arguments seriously.

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I move on to Amendment No. 125, which is related and refers to the provisions at the front of the constitution that set out the objectives. It is not uncommon for constitutional documents to set out the objectives under which the rest of the constitutional clauses fall. These have particular significance; they are in Article 3 of the consolidated text. The House of Lords report on the impact of the treaty, to which we have referred, notes that the objectives are not just there for window dressing and are not just nice narratives, but that they are,

So the initial objectives of the constitution have a real significance for us.

The Lisbon treaty adds new objectives, which this House needs to take note of, because they may in many ways cut across objectives that UK Governments may wish to deploy. In particular, the treaty introduces the objective in Europe of creating a social market economy, aiming at full employment and promoting social justice and protection. We all know that those words are code words; they have a political meaning and are not just nice objectives. They will be interpreted by European Governments and the European Court to imply a particular kind of social market policy—a protectionist, high-cost and, as it turns out, uncompetitive market. It is a particular view with which many of us in this country disagree.

When those objectives are put alongside the Charter of Fundamental Rights, there is real concern that it creates scope for rulings by the European Court that directly impact on the UK’s freedom of action, and, in particular, on the labour market. The House of Lords report I referred to earlier also notes that these objectives may be taken as justifying the extension of European Union competencies under what was the old Article 308 and is now Article 352. In other words, the fact that these objectives are set out there will allow the European Union to extend its powers under its constitution in new areas.

These are political objectives and have no place in a constitution. The consequence is that a future Government could sign up to things as a result of them, which would bind their successors to a particular political format of Europe that may not be the political philosophy that they wish to pursue. In that way, the constitution may end up constraining the freedom of action of a future UK Government.

My amendment seeks to bank the Government’s assurance that future governments will not be bound in that way. I am sure that the Government will ensure that this is not a constitution and that the use of these objectives to constrain the UK law will not be possible. I wish to bank that assurance by my amendment which makes clear that the UK laws cannot be constrained by the wording of these objectives. I ask the Minister to confirm—since I am sure that she will want to make those assurances—that she is perfectly happy to accept my amendment that puts that provision in the Bill.

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Lord Pearson of Rannoch: It may be helpful if I follow my noble friend Lord Blackwell as my name is on Amendment No. 126, which follows his Amendment No. 125, to which he has just spoken. The wording my colleagues and I have used on the amendment reappears often in the Marshalled List. Its purpose is to ensure that whatever amendment we pass into the Bill—and I very much hope that we will eventually pass my noble friend’s amendment—actually bites, and that the wording of the original European Communities Act cannot be used to circumvent whatever we decide in the Chamber. I am afraid that, without our amendments, that is the position.

I am sure that I do not need to remind your Lordships of the whole of Sections 2 and 3 of the European Communities Act 1972, but can paraphrase it. Section 2 for the first time passed the power of the British courts to the Luxembourg Court of Justice. The particular part of the 1972 Act which I fear should go on record in your Lordships’ proceedings—Section 3(1)—reads as follows:

In other words, from then on the European Court ruled. Our amendment would exclude those words from any amendment that we may pass to the Bill.

Secondly, my contribution to the debate will be to ask the Minister two questions, which I asked her in writing and which she has not yet answered. I think they will help to inform the Chamber about whether this really is a constitution. I will end by making a third suggestion which I hope will allow the House better to understand these proceedings.

4.30 pm

The first question which I wish to put to the Minister has achieved the distinction of being No. 2 of the unanswered Written Questions. I asked Her Majesty’s Government what is the legal status of the European flag and anthem in the United Kingdom and in the rest of Europe. That is an important question because I understand that the only difference of any substance between the constitution upon which a referendum was promised, which the Dutch and the French voted down, and the treaty which is now before us is that the flag, the anthem and Europe Day have been left out. It would be helpful if the Minister were to answer that Question, bearing in mind that the flag and the anthem are used all the time and the fact that they are being left out of the constitution does not mean that the flag will be pulled down or that Beethoven can be relieved by no longer having his wonderful music abused in such an unfortunate cause. What is the legal status of the flag and the anthem and what is our relationship to it?

Secondly, I asked the Minister two Questions to which she was good enough to reply but which she did not answer. Those Questions were answered on 28 February. I asked Her Majesty’s Government:

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that is, now—and, as a sort of second barrel to that Question, I asked Her Majesty’s Government:

I was asking what there is in our national life that the Brussels system of law-making cannot touch. She did not answer. She gave the same Answer to both those Questions, which was:

That is not an answer to the Question. She continued:

The trouble is that if you look at pages 52 to 56 of the treaty of Lisbon, you are left asking the same question: what area of our national life can the EU not touch? I will not go through it all now. Your Lordships can read about the exclusive competences, the shared competences, the internal market, industry, culture, education and civil protection. It goes on and on. It is very difficult to find what areas are left out, especially when one bears in mind the justice and home affairs element of the new treaty and the common, foreign and security element.

I did not intervene further in the speech of the noble Lord, Lord Wallace, because I felt that the mood of the House was that it was time he moved on and into the future. However, I remind him that as regards the international obligations to which he says we are subject and which deprive us of our sovereignty—I think that he mentioned NATO, US bases here and so on—we can leave those tomorrow if we wish and they do not make the majority of our law which we do not want.

I repeat that the basis of our constitutional settlement is that the British people elect and dismiss those who make their laws. We have now come to a situation where the majority of our national law is made in Brussels and imposed on this Parliament by the Brussels system. To make matters worse, under this treaty we now grant legal personality to the new Union. I am assured in Brussels that that is regarded as the jewel in the crown when the court gets going. As other noble Lords mentioned, there is the passerelle clause. The noble Lord, Lord Hannay, is right—the treaties which went before this were all constitutional.

It is true, unfortunately, that my former friends in the Conservative Party got it wrong in not granting a referendum on the Single European Act, the Maastricht treaty, Amsterdam and Nice, which many of us in this House tried as hard as we could to get. I repeat that five wrongs do not make a right and we in the UK Independence Party are prepared to welcome a sinner that repenteth in the shape of my former friends.

My helpful question for your Lordships—I hope—is to the Minister. I reach it by quoting another of my favourite quotes on why this treaty is indeed the same as the constitution. It is from Mr Karel De Gucht, the Belgian Foreign Minister, and it goes as follows:

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My final question to the Leader of the House is: can she help us with this? Surely it would be reasonable for the Foreign Office to produce for your Lordships for the rest of the proceedings on this Bill a very simple index of the treaty of Lisbon, so that when we come to debate a subject we can look it up in the index and find it in the treaty without having to wander all through the previous treaties, all through what is left of the constitution, the renumbered documents and the total confusion that surrounds the examination of what is before us.

I do not know whether any other noble Lord would care to support that request, but there are armies of people in the Foreign Office who no doubt have such an index at their fingertips, because otherwise they have to go to their computer to look up where something is in the treaty. If that index could be made available to all noble Lords, I am sure that it would facilitate our proceedings.

Baroness Symons of Vernham Dean: I found two contributions to today’s debate on the amendments very persuasive. First, I thought that the contribution from the noble Lord, Lord Owen, made a telling point about constitutional amendments and that when we think that something affects our constitution we should be clear and straightforward about that. I also found that the detailed analysis by the noble Lord, Lord Blackwell, reflected the very thoughtful and penetrative contributions that he made during the work of the Select Committee on this treaty.

For me, the whole question comes down to two issues: what is a constitutional arrangement and what changes amount to real alterations and real amendments? That is the first point. Secondly, are they of sufficient importance in this treaty to merit particular mention in the Bill? There is no doubt, looking at the changes in this treaty, that there are institutional changes, operational changes and definitions of competences. There are the red lines that have been drawn that affect the extent of the changes in the relationship between the European Union and the United Kingdom, and no mention has been made of those. It seems to me that what the Bill is talking about at the moment has no more of a constitutional impact than that which we have seen in previous treaties, and that what we really see here are changes to who does what and the operational way in which we conduct our business between ourselves and the European Union.

I thought that the noble Lord, Lord Forsyth of Drumlean, would be more persuasive if he could possibly be a little bit less offensive in how he expresses his very forthright views. People who disagree with us are not necessarily liars; they are not necessarily deceitful, monstrous people. There can actually just be straightforward political disagreement, and that is what we are dealing with here, not some horrible perfidy on one part of the House rather than the other.

Lord Forsyth of Drumlean: I did not call anyone a liar; I said it was a lie to the British people to say that they would get a referendum on this treaty. Listening

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to the noble Baroness, I would remind her that she was a member of the Government who argued that the previous treaty was no more than a simple tidying-up exercise. The Prime Minister subsequently changed his position to argue that it was a constitutional treaty that required a referendum. I believe that that was a deceit and I do not withdraw that in any way. It is not a matter of having a disagreement; it is a matter of what her party promised the British people, what elected Members promised and what is now not being provided.

Baroness Symons of Vernham Dean: The trouble with that is that I think that someone who tells a lie is a liar. I do not know how the noble Lord draws a distinction between saying that those who have told a lie are not liars and that those who told a lie are something else. But we will let that stand. If the noble Lord is willing to say that we are not liars, but that we have told a lie, we will let that stand. It seems a peculiar distinction to want to make.

Even if some do want to describe the changes as constitutional, we must all admit that this is an argument about whether or not we support the move towards a referendum. We went over this point in enormous depth for more than 12 hours at Second Reading. I fully understand that we will go over and over it again, but it seems that essentially what the noble Lord, Lord Owen, based his very powerful argument on was the question of whether the words in the amendment merit inclusion in the Bill. He said that he believed that the changes were constitutional and, therefore, merited inclusion in the Bill, because that should have been done with Bills on previous treaties. I do not think that that argument stands up. To make an unprecedented move to include these words in the Bill is to single it out and to single this treaty out as being of paramount importance and having more constitutional impact than its predecessors. Otherwise, why single it out? Why say that this treaty merits that sort of treatment when other treaties do not?

I do not believe that anyone who has looked at European treaties over the years can honestly believe that this treaty has more constitutional impact than the treaty of Maastricht or the Single European Act. It simply does not. I do not know of an academic, any colleague of mine who has held office in the Foreign Office, a politically neutral civil servant or anyone else who would say that.

Lord Lamont of Lerwick:I—

Baroness Symons of Vernham Dean: I have obviously had some impact.

Lord Lamont of Lerwick: I apologise to the noble Baroness for interrupting her flow. On her point about the comparison with Maastricht, I ask her three questions. First, is she aware that the Foreign Secretary himself has said there is more movement to QMV in this treaty than in Maastricht? Secondly, is it not a major point, as the noble Lord, Lord Owen, pointed out, that in huge areas the pillared approach continued under Maastricht? Thirdly, the most important

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area that was not part of the pillared approach was the single currency. A referendum was, indeed, promised in the single currency provisions.

Baroness Symons of Vernham Dean: I am aware of the last two points, but I was not aware of the first. I would like to check that before accepting the noble Lord’s word for it, because it would be pretty peculiar if that was what the Foreign Secretary said. I will certainly go away and look at that, but the points that the noble Lord has made do not undermine my argument in any way.

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