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I quote the noble Lord because I could not conceivably have put it any better. His words from 1972 echo through the decades, describing precisely why it is important to ensure, if you have an agreement and you implement the law, that it is implemented in the same way throughout the Community.

Amendment No. 126 from the noble Lords, Lord Willoughby de Broke, Lord Stoddart and Lord Pearson of Rannoch, adds a further sentence—

Lord Lamont of Lerwick: When the Minister says that Community law must be implemented in the same way in every state within the European Union, how does that apply under the arrangements the Government are defending whereby the protocol relating to the Charter of Fundamental Rights would apparently shield non-UK citizens who are resident in this country? They would presumably find that they were not subject to the Charter of Fundamental Rights in the same way that they would be in their own country.

Baroness Ashton of Upholland: The Charter of Fundamental Rights does not create new laws; it does not say that there is a justiciable reality for people in this country that is different for residents or citizens. With luck, we will have a debate later today that will take us into the whole question of the Charter of Fundamental Rights, the purpose of what we have done with the charter and what it does and does not do. There is no contradiction in what I have said regarding the implementation of EU law, but we will discuss that in greater detail later.

Lord Blackwell: Perhaps I may clarify what the noble Baroness the Lord President is saying. My Amendment No. 125 refers solely to the new powers created by the treaty of Lisbon. If she is not prepared to accept it, is she saying that we are giving the European Union the power to decide whether laws and actions of the UK Government are compatible with the new objectives that are built into the treaty by the treaty of Lisbon—that of a social market economy, for example? Is that the import of what she is saying, because that change is introduced by this treaty?

Baroness Ashton of Upholland: I am not saying that. We are a part of the European Union. The noble Lord described it as if it were something over there. I am saying that when a decision is made by 27 member states to move forward on a proposition, and when that proposition comes to be implemented across them, the European Union law that applies to that has primacy. It does not affect what we do in our own domestic legislation per se, except where the EU legislation covers subject matter where we have agreed that it should. We will look at that in greater detail. The noble Lord’s amendment would take away what we accepted in 1972—I have already quoted the noble and learned Lord, Lord Howe of Aberavon, speaking at that time—namely, that if one is going to belong to a group of countries collaborating on aspects of economic or other policy, where one agrees to work in a particular way, that law must apply. That is the

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difference between what the noble Lord proposes—we would in effect take away what we agreed in 1972—and the current position.

Noble Lords have tabled an additional amendment, the purpose of which would be the same. We are a member of the European Union; we derive practical benefit from it; and we are bound to implement the law. That position has served us well over the decades and, for these purposes, will serve us into the future. I hope that the noble Lord will feel able to withdraw his amendment on that basis.

Lord Howell of Guildford: I thank the noble Baroness the Lord President for setting out frankly and openly her view of how we should proceed with the amendments and how we should develop the debate as we go along. I shall form a good—I was going to say unholy—alliance with her in avoiding quotation fatigue, which would bear us all down. In fact, I shall adopt the approach of the Japanese towards their finest treasures and antiquities, which is to bring out one a month and to admire it. So, during the debates, I shall bring out one superb quotation each time to underline our devastatingly strong case on these matters.

The noble Baroness broke her own truce by quoting the excellent report of the European Union Committee.

Baroness Ashton of Upholland: I did not. I would hate for the noble Lord to think that I immediately broke my truce. What I think I indicated—I ask noble Lords to nod if that is what they thought I had said—is that I would quote only Members of your Lordships' House or of another place and the three committees: the Constitution Committee, the European Union Committee in this place and the European Scrutiny Committee elsewhere.

Noble Lords: Hear, hear!

Lord Howell of Guildford: If your Lordships settle for that bargain, I shall do so as well. I shall quote from the excellent report of the House of Lords Constitution Committee. It states in its conclusion, which is in heavy black type, that part of the TFEU treaty will,

It also quotes with approval one of its witnesses, who, talking about the changes to the TFEU, said that the reform clearly implied “fundamental constitutional change”. Those statements are in black and white, so the noble Lord, Lord Tomlinson, is quite wrong in saying that none of the reports from your Lordships’ House supports us or that their conclusions are the opposite of what we are saying: they are right in line with what we are saying. They are right in line with the fact that there is a constitutional significance which merits a change in the wording about constitutional arrangements in the terms which we have set out. That is a matter on which we will probably not agree, but at least let us have the facts either side aligned; they cannot be gainsaid.

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5.45 pm

Of course the amendment was intended to address a rather narrow point; we were trying simply to bring home the observation, or the improvement, to make the Bill rather more honest goods, and state more clearly what it is about. Inevitably, the debate went wider. Neither I nor the noble Baroness can control how a debate goes—thank goodness—in your Lordships' House, and we wandered off into wider things. I very much agree with the noble Lords, Lord Williamson and Lord Willoughby, who both reminded us not to become too loaded with jargon and insider’s talk. To many people, the very word “constitution”—I think that the noble Lord, Lord Lester, was on to the same point—is strange. For many people, it refers to body-building exercises at a health club on a Friday evening or, for some, a doctor’s term in a medical remedy. So we have to be very careful to adopt the right language in our debates. However, we were making a narrow point. Some speakers chose to go very much wider, and we drifted off into the referendum issue, which we shall debate later. I listened with great interest to the noble Lord, Lord Kinnock—his very voice brought back memories of past battles—who asked where we stop with referenda. I shall simply leave him with the question whether he put that question to the former Prime Minister, Tony Blair. If so, what was the answer? I shall be fascinated to learn at some stage what it was, because it was the former Prime Minister who recommended a referendum.

Lord Kinnock: I can make the response immediately. On his terms, we agreed to differ. I am irreducibly against robbing Parliament of the responsibility; he was disposed to take a different view on what he then regarded to be a constitution. His view has since been repaired in accord with the great change that has taken place in the document that will partially determine the way in which the EU conducts itself.

Lord Howell of Guildford: Nothing that the noble Lord says surprises me in the very slightest degree. I am sure that views have evolved and changed in every direction, sometimes at a bewildering speed which is quite hard to follow.

Lord Stoddart of Swindon: Does the noble Lord agree that no referendum can take away the right of parliamentary decision? We are a parliamentary democracy. The idea of a referendum is to advise Parliament. Parliament should perhaps think very carefully before rejecting that advice, but referenda do not undermine the principle of parliamentary democracy.

Lord Howell of Guildford: I do not want to enter that debate now, but it is probably correct that referenda, as the previous Prime Minister, Mr Blair, obviously believed at the time, are in certain circumstances justified in giving the people a say before Parliament reaches its final conclusion. There is a lot in what the noble Lord said.

The noble Baroness the Lord President began her speech with a major point about the primacy of EU law. It is correct that it was not in the Rome treaty; it

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evolved from the diktats and judgments of the European Court over the years, and was then given a boost by our own European Communities legislation when we joined the Community in 1972. This Bill and this treaty extend the powers of the ECJ enormously because of the collapse of the third pillar. Suddenly, they extend over a very wide area.

Lord Lea of Crondall: Would the noble Lord like to reconsider his use of the word “diktat”? The European Court of Justice has been there since Ted Heath onwards. Has he always thought of it as giving diktats?

Lord Howell of Guildford: The noble Lord is quite right—it is the wrong word. It slipped out. I should not have used the word diktat; I meant “judgment”. I tried to correct myself, but not quickly enough for the noble Lord, who is very sharp on these matters. But the point is that there is a big extension of the area—

Lord Pearson of Rannoch: Surely a judgment against which there is no appeal is a diktat.

Lord Howell of Guildford: That is another very relevant point. Perhaps the right word that we are groping for is “ruling”. What I am trying to get to is that the outcome of the rulings of the European Court of Justice and the powers of that court, which now extend over a very wide range of bodies, as they never did before, with its powers to impose large fines and many other penalties, are vastly extended with the collapse of the third pillar.

I shall not go into the points that the noble Baroness raised about national parliaments. There is room for a very wide debate about whether in practice there is any enlargement of the role of national parliaments at all under this treaty. I know that the intention was there but whether it works in practice is something that we shall discuss at another time.

The noble Lord, Lord Lester, implied that I was in favour of a constitutional court. I am not. I was merely saying that other countries had those courts and that as we did not have one it was all the more vital that we underpinned our systems of parliamentary accountability to uphold our constitution in the most effective ways.

The core of the issue that we have been debating is the “previous treaties” issue, embodied in the interventions of the noble Lord, Lord Hannay, and the noble Baroness, Lady Symons, who raised—as has often been raised before—the question why. Why are we worried about this now and why are we trying to amend this treaty? Why are we critical of many aspects of it and why has the party for which I am speaking argued in favour of a referendum when we did not do any such thing for previous treaties? I gave one answer—the straw theory, as the noble Lord, Lord Hannay, put it. Of course, it does not have to be a straw by itself; it can be one in a very large bundle, as it is in this case and as the noble Lord, Lord Harrison, perhaps recognised. One more very large bundle is the thing that can sink the poor, wretched camel.

There are other substantial arguments, and the noble Lord, Lord Owen, reminded us of a very good one—namely, that after the Maastricht treaty an election was held. There was a general election. Are

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we being offered now another general election on this issue? If so, I think that my party would be quite happy to proceed.

Lord Anderson of Swansea: Is the noble Lord seriously suggesting that the 1992 election was held on the issue of Maastricht?

Lord Howell of Guildford: I am saying that the people had an opportunity at a general election to discuss and debate it very fully. Also, as my noble friend Lord Lamont reminded us, a referendum was on offer on the euro, although luckily, so far, it has not come to that. Later on we will want to know whether we can be sure that this Government, if they are still in office—which I do not think that they will be—will offer a referendum on the euro again.

It was a narrow point that we were trying to debate this afternoon. We are simply arguing that the Bill should be honestly described. The noble Lord, Lord Anderson, made much of the point that the other people of Europe do not agree with us—and I am not sure that he is right about that either. In fact, the latest independent poll from Open Europe found that 75 per cent of all people in the EU want a referendum on any new treaty that gives more powers to the EU. It also found that in the UK 83 per cent would want such a vote to be held. The majority in all 27 countries would want a referendum. So we are not quite as isolated as he makes out.

Lord Anderson of Swansea: With respect, that was not the point that I was making. Since the change of policy towards the European Union by the Conservatives, there are no natural bedfellows within the European Union, as evidenced by the problems of the European People’s Party in the European Party.

Lord Howell of Guildford: The noble Lord makes the wonderful universal error of confusing Governments and elite groups with the people of Europe, who, as we found with the last treaty, suddenly took rather a different view from that of their Governments. That is a very deep point and one that we will come back to again—whether we are talking about the Europe that elites want or the one that the people want. I think that they are very different.

The question of constitutional significance is at the centre of our amendment. As we have been reminded, Mr Straw, the previous Foreign Secretary—now, I think, he is the Lord Chancellor—said that if it was a question of a Foreign Secretary or President being introduced, that would be constitutional. This Bill does that. Someone else said that if there was a vast increase in ECJ powers that affected individual citizens, that would be constitutional—and this Bill does that. In a way, I rather admire those who have spoken in opposition to the amendment this afternoon, because I think that they are on the defensive. They are besieged in the Alamo fort and are fighting very hard by simply denying the facts and the truth, which everyone else in the wider world recognises. Every commentator and most national leaders throughout Europe know perfectly well what we are talking about.

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Other issues were raised in the debate. The “Ode to Joy” has words by Friedrich Schiller and music by Beethoven. I have nothing to add, except that it is a wonderful sound. We can all enjoy it without the benefit of elaborate new centralising laws and treaties. We do not need a law to listen to Beethoven, thank you very much.

So we have come to the conclusion that it would be extremely wise to add these words now. As the noble Lord, Lord Alton, very wisely reminded us, there is a very great danger of isolating ourselves by our refined language and ideas from the deepest and best feelings of the British people and the people of Europe. That is an issue to which we will return. In the mean time, having noted the depth of feeling and the strength of our argument, which I think has swept right over the protestations and defence of the Government and the silent, or nearly silent, Liberal Democrat party, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 1 agreed to.

Lord Howell of Guildford moved Amendment No. 4:

(a) those elements of the constitutional arrangements in the Treaty of Lisbon that required further negotiation and clarification;(b) any other Articles or elements of the Treaty of Lisbon that required further negotiation and clarification, subsequent to 13th December 2007;(c) what draft proposals he, or any other Minister of the Crown, has agreed with other EU members in relation to matters included in paragraphs (a) and (b) above;(d) what aspects of the arrangements envisaged in the Treaty are still not agreed and remain to be resolved in negotiation within the EU.(a) the powers and duties of the President of the European Council;(b) the detailed role of the President of the European Council and his relation to the Heads of Government of the nation holding the rotating presidency of the EU;(c) the powers and duties of the EU High Representative;(d) the detailed role of the EU High Representative and his relation to the Secretary of State.”

The noble Lord said: Noble Lords will forgive me if I catch my breath after the last debate.

Our concern here is with the issues left over from the treaty negotiations, which still remain to be resolved, and how on earth they should be handled by our Houses of Parliament. We have learnt recently from a presidency document that an immediate range of issues is to be decided, such as the salary and role of the proposed EU president—and we will have many more amendments later on the foreign policy aspects of that matter; on the powers of the new Foreign Minister and his diplomatic service; on how those things fit together with a rotating presidency system; on the development of defence co-operation, which is a crucial

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matter; on the new powers to be handed to the European Police Force, Europol, and the prosecution service, Eurojust; and many other matters as well.

In the words of the Economist, dozens of questions are left unanswered by the treaty and many of them will give rise to fresh debates in future about the whole shape and nature of the Union. A misunderstanding needs to be cleared up in Ministers’ minds about the whole nature of the European process. The EU is not, and never has been, a fixed arrangement with nicely delineated powers about who does what. Relationships are in perpetual flux. There is no single treaty that can settle matters for all time, as some enthusiasts seem to yearn for. One hears people say, “This will be the final settlement” and, “This will be the ultimate solution for Europe”. That is the language of fantasy because that will never happen. I think that that explains why President Sarkozy is already talking about future integration and a working party that he wants to get started about the next stages in the integration and formation of the Europe that he wants to see.

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