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The noble Lord said: I approach this amendment with trepidation, because I am aware that it is the only thing that stands between your Lordships in Committee and some fortification before we turn to even more important issues that lie immediately ahead. As this is the first opportunity I have had to move an amendment on the second day of Committee, I start with what is best described as a correction. My memory of the precise numbers of Hymns Ancient and Modern was at fault. It was kindly pointed out to me—both by the former Permanent Under-Secretary of State at the Foreign Office, the noble Lord, Lord Jay, and by the noble Lord, Lord Wallace of Saltaire—that I had got either the number or the hymn wrong. It was not Abide with Me, it was Lead, Kindly Light, hymn 215. I want to put that on the record and I hope that your Lordships will allow that correction.

We come to a debate of considerable significance—I hope that most people, possibly even our Liberal Democrat colleagues, will agree on that—concerning the new role of the more entrenched president. Of course, there were presidents before, but Article 15(b) of the new treaty proposes, under subsection 6(d):

“The President of the European Council shall, at his or her level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy”.

It adds:

“The President of the European Council shall not hold a national office”.

We have already touched on this matter in debate, although rather tangentially. The wording is identical to that in the earlier, rejected constitution, except that

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the reference now is to the High Representative of the Union for Foreign Affairs instead of to the Union Minister for Foreign Affairs—otherwise, it is just the same. This president is to be put in place for two and a half years, renewable once and chosen by qualified majority voting. This is identical to what is in the constitution. I know that we have had long debates, and will no doubt have more, about the degree to which this treaty represents what has gone before in what was called the Constitutional Treaty, and indeed, since our last Committee meetings, the noble Baroness has been good enough to circulate quite a few letters that we have all received. The noble Baroness has been extremely busy in her letter-writing and one letter she sent explains her views on why this treaty is different, and attaches a long paper from a learned professor to that effect. I said that I would not trade quotations and I am not going to trade professors, either—although I have a whole raft of professors of considerable distinction saying the opposite to her professor. I think we would tire each other if we paraded all their views at length. All that can be concluded is that professorial opinions and academic opinions of equal weight, worth and reputation are in total conflict on this issue that the Government have rather dug in on; namely, their claim that the Constitutional Treaty and this treaty are not broadly the same.

I turn to the role of the president, as proposed in his or her new capacity. We should give considerable time to this—possibly more than our colleagues in the other place were able to, for various reasons—because the democratic instinct needs to be mobilised and applied carefully when it comes to appointing new figures, placing them on high pedestals and giving them powers that in the modern world can lead—this is the result of the networked world and the information age—to the magnification of celebrity at one extreme and the suppression of run of the mill and ordinary performance at the other. It is said that the effect of the information age is to increase the disparities between the lucky or meritorious ones who become famous, and the rest of us who fall into grey obscurity. We need to approach this presidential issue very carefully.

The noble Lord, Lord Wedderburn, in his recent pamphlet, warns us—no, he is not in his place—that we should be very careful when it comes to presidents.

7.15 pm

Baroness Ashton of Upholland: I am sorry to interrupt, but I thought the noble Lord would want to know that the noble Lord, Lord Wedderburn, has had an emergency operation. I think that he is doing fine, but he has not been well at all. I thought that I should put that on record.

Lord Howell of Guildford: I am extremely sorry to hear that. He is an extremely wise contributor to these issues. He has written a pamphlet with some observations on this treaty debate. I strongly recommend them to all your Lordships as full of wisdom. He warns us that we need to be very careful when it comes to presidents and giving them powers. He points out—and this is

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obvious to all of us—that this treaty, like the constitution before it, in effect gives us several presidents. It gives us the new two-and-a-half-year or five-year president of the Council; it gives us the rotating president of the Council, who was there before; the Commission president, who was there before; and of course the European Parliament president, who was there before. It also gives us the person who was called the Foreign Minister in the Constitutional Treaty and is now called the high representative, who has quasi-presidential powers as the double-hatted vice-president of the Commission and the chairman, so I understand—this is one of the many issues that have not been clarified—of the new Foreign Affairs Council. That figure will hold a very important role in defining the stance of the European Union on foreign policy issues, and how that fits in with the stance of the new president, as defined in the new treaty that I have just read out, is a bit of a mystery. We need to examine that carefully and give our combined views as guidance for the many issues that have yet to be resolved in this field. These are not settled matters—it is not a question of reopening the treaty, but of influencing many decisions yet to come.

One argument used for the longer-term presidency is that the six-monthly business was very inefficient. That is the assertion that we hear from experienced officials and those who are anxious to improve the efficiency of Europe. The same argument, interestingly, is used on the website of the Foreign and Commonwealth Office. In the section entitled Lisbon Treaty myths, it talks of the need to enlarge the powers and lengthen the term of office of the president—and also, incidentally, to combine the roles of the high representative, both as a vice-chairman of the Commission and a member of the Council—because, it says, this will overcome and eliminate “wasteful wrangling”. This is a wonderful insight into bureaucratic minds. Do these people not realise that what they think is wasteful wrangling is, to democrats, healthy argument and disagreement, which are necessary ingredients for successful democratic institutions to live and breathe? The truth is that time and again, we come up against a state of mind that I find quite objectionable, which, when it talks about efficiency, is actually talking about being able to shovel through the European Union sausage machine more laws and more regulations, more quickly, so that the ambitions of those who want more laws and more regulations can be satisfied more swiftly. That is not the kind of efficiency that a democrat should welcome, and it certainly does not bring the institutions of the European Union nearer to the people, which was the original ambition of the Laeken Council.

Lord Clinton-Davis: The noble Lord has made an assertion. Will he kindly clothe it in fact? It is no use simply asserting something; you have to prove it.

Lord Howell of Guildford: One way in which I could prove it is by pointing out that a great many regulations and laws have poured out of the European Union authorities and institutions, and that is labelled by some people as efficiency. But I am talking about arguments and opinions, and saying that we have been told that the longer-term president will increase the efficiency of the European Union. I

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am giving a rival opinion. If efficiency means more regulations and instruments emerging from the legislative machine, that is not the kind of efficiency which the democrat would necessarily welcome.

Lord Hannay of Chiswick: I have a feeling that we are confusing efficiency and effectiveness. Those who support this treaty and the role given to the new President of the European Council, particularly in the external field, do so in the belief that it will increase effectiveness. It has nothing whatever to do with the legislative process or the speed with which sausages are made in the Brussels machine—I am sure that we will hear plenty about that from the noble Lord, Lord Pearson. Effectiveness is different. As the noble Lord will know, it is very often the British Government’s practice to talk about efficiency and effectiveness in respect of reform of international institutions. They are two different things. We are talking about effectiveness in this case.

Lord Howell of Guildford: It is a lovely distinction and I respect it, but when it comes to bottom-up democracy and the demand for humble institutions to call people to account, whether they are being more efficient or effective becomes a fine distinction. Is it more effective, for instance, that the European Union should ram through its energy policy on biofuels? The answer, we all know now, is no. What a pity it is that the people concerned were so effective or efficient that they put the policy together, because it is turning out to be a disaster—although that is not yet fully recognised by the Commission. We can think of many other cases where effectiveness and efficiency have combined to produce a policy at the centre which has been damaging and could have been stopped by more democratic argument and wrangling, with more doubts and difficulties put in the way before it was rushed into.

I do not want walk right into the cry of comparing apples and onions, but the approach of the most democratic country in Europe, which everyone recognises to be little Switzerland, which is not a member of the European Union, is to have a president changed once a year and for that person not to be placed on a particularly high pedestal. It used to be the principle in this country, underneath our own monarchy but within our elected sphere of government, that the president should be primus inter pares, although some recent incumbents have slightly ignored it. That is the healthy democratic instinct which I would expect a Parliament such as ours to support and urge before we endow some more deeply entrenched president with a longer term of office and considerable powers—although they have yet to be decided. I am obviously vulnerable to the cry that one cannot compare a gigantic Union with little Switzerland, but one can compare democratic principles wherever they flourish.

Lord Dykes: How can the noble Lord reassure us by comparing the small country of Switzerland, which has a presidential system of a totally different construction—it is an esoteric country, too, which is apart from other countries, as we know—with the co-ordination among 27 member states of a European

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Council president operating for a longer period and of their agreed policies? Does he not agree that one of the reasons why the Commission is often wrongly blamed for rushing out policies is the pressure created by member Governments constantly asking it to deliver those policies as quickly as possible?

Lord Howell of Guildford: I realise that I was opening myself up to that intervention, but the argument cuts either way. If the principle in a small democracy is not to elevate on a pedestal too high a particular individual, particularly in this celebrity, media-driven age, but to have a regular rotation so that no one acquires too much power, personality or personal influence, one could perhaps argue that, in this enormous Union of around 500 million people, with its 27 rising to 28 members, the case for avoiding the overglorification of a presidential figure is even stronger. It is a cause for some sorrow to hear from the Liberal Democrat Benches that they are not worried by endowing an individual at a very high level with great power, which will probably be the case, although we have not worked out what that degree of power is meant to be.

I turn from the efficiency/effectiveness issue to the rather interesting letter that the noble Baroness the Lord President has circulated since our previous Committee stage debate. It is from the Minister of State, Mr Jim Murphy, to my noble friend Lord Grenfell.

Lord Neill of Bladen: Will the noble Baroness circulate the letter a little more widely? It does not follow that some of us who have not spoken yet do not have ideas. We would like to know, for example, what was said by the learned professor, to whom reference has been made.

Baroness Ashton of Upholland: The letters that I have circulated went to everybody who participated and everybody I could think of—well, they should have done. I ask noble Lords to check their pigeon holes. They are all in the Library of the House.

Lord Howell of Guildford: The noble Baroness will now see that there is a great thirst for her letters, and we are asking for more. I do not know whether they will shorten our proceedings, but they are certainly extremely interesting and informative. The letter to which I refer is one that I had not seen before. It is dated 22 April and addressed to the noble Lord, Lord Grenfell, as chairman of his very distinguished committee. It comes from Jim Murphy and is concerned with “implementation issues”. It raises a whole string of concerns about the Council presidency and the role of the president, which the Slovenians, who hold the presidency until 1 July, when the French take over, want resolved. They affect us very much, as they do the powers and role of the president. We are not clear whether this will be a ceremonial or an executive figure. Will the president have real hands-on power and the capacity to influence by words, comments, speeches and opinion-forming the entire global posture of the European Union and its 27 members? We just do not know which sort of president we are dealing with. It is only fair to suggest that, before we proceed further with the ratification of this Bill, those who are placed in authority to make these decisions should,

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first, have reached them and, secondly, report them to the national parliaments in considerable detail so that we can look at them. It is no wonder that the Slovenian president is complaining about back-door deals and saying, probably in vain, that “we need a democratic process” in settling the presidency issues and candidatures. I do not blame him for saying that at all.

That brings me to the third aspect of the amendment, which concerns the future role of the president and interrelationship with the high representative, who will now be the vice-president of the Commission and a member of the European Council. We have already touched on this matter in Committee debates, but inevitably many of these issues are cross-issues that come up again and again and we cannot necessarily cut them out of future debates—

Lord Roper: Perhaps I misheard the noble Lord, but the high representative is not going to be a member of the European Council, which is reserved for the Heads of State or Government of the member states. He is going to chair the Foreign Affairs Council, but he certainly will not be a member of the European Council.

Lord Howell of Guildford: I am sorry, but the Foreign Affairs Council is a child of the former general council. The General Affairs Council and the Foreign Affairs Council are now split, and he will chair the latter. That is what I call a European council.

Lord Roper: I think that the noble Lord misunderstands. The Lisbon treaty formalises the European Council, which is distinct from the Council of Ministers. The high representative will chair one of the Councils of Ministers. He will not be a Member of the European Council, which is made up of the Heads of State or Government of all the member states and meets every six months.

Lord Howell of Guildford: The noble Lord is right: I should have said Council of Ministers, not the European Council. It is perfectly clear that he is not a Head of State. I am sorry if that was obscure. He is right to say that I missed out words. Council of Ministers is what I meant.

I come now to the issue of whether the president of the Council should be double-hatted and also be, as was rumoured, the President of the Commission as well. In an exchange we had the other day, that was dismissed as unlikely and, indeed, impossible. We know what the Government wanted. Some time ago, in 2003, in an impassioned speech, the current Secretary of State for Justice and Lord Chancellor made it clear that the Government were very unhappy about any kind of treaty that might leave the door open in any way to this combination of offices. The British Government wanted tough clarification in the old constitutional treaty that that should not be so. In practice the British Government did not get what they wanted, and in practice we were left with the phrase, in relation to the president, “shall not serve national office”. That is all. That is in both the old constitutional treaty and in the present one.

The other night there was a series of exchanges, which I found extremely misleading, in which it was claimed that the British Management Data Foundation’s

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Lisbon treaty grid, a massive document, was incorrect about this matter. The noble Baroness said that it was not true that nothing in the treaty prevented the President of the Commission also becoming the President of the European Council and she urged whoever had written that to get in touch with her, which they have duly done. I expect that she has received a letter.

It seems to me that the noble Baroness’s dismissal was incorrect. The issue is being constantly aired by senior European officials, including the former Italian Prime Minister. Indeed, it has been proposed that the president should be directly elected by the current President of France. Nothing in the treaty could stop that except the words that I described. The earlier and much stronger words that the British Government wanted have failed to get into either the constitutional treaty or the present one.

Why do I spend any time on this? Why does it matter if it is said to be so unlikely? Why did it matter so much to the Government before? It is for a very obvious reason. It blurs the role between the supranational and supposedly independent Commission and the international Council. It also blurs the issue of whether or not the common foreign and security policy is ring-fenced, as Ministers repeatedly claim it is. We will come later on to that whole debate in much greater detail, as we will to the noble Baroness’s fascinating observation in one of her letters that the ECJ’s role in these matters is to police the frontiers between the common foreign and security policy and other Community matters.

We have always sought and wanted practical co-operation with our EU neighbours on a wide range of issues in foreign policy, such as Burma, the Balkans and maybe Russia, although many countries in the European Union are quietly doing their own thing in their relations with Russia. We had a try at the Iran situation, although it did not have much effect in the end. We are still struggling with that. The question is whether we want to codify and legalise all this so rigidly. That is the question. It is the question posed by this amendment. I beg to move.

Lord Bach: I beg to move that debate on Amendment No. 9 be adjourned.

Moved accordingly, and, on Question, Motion agreed to.

Lord Bach: I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage begin again not before 8.36 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Criminal Justice (Northern Ireland) Order 2008

7.36 pm

The Minister of State, Department for Environment, Food and Rural Affairs (Lord Rooker) rose to move, That the draft order laid before the House on 3 March be approved.

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The noble Lord said: My Lords, I shall speak to both the Criminal Justice (Northern Ireland) Order 2008 and the Criminal Justice (Northern Ireland Consequential Amendments) Order 2008. Copies of the draft orders were laid before the House on 3 March. Like other noble Lords, I hope, I welcome the opportunity to consider both the main order and the consequential amendments order as part of the same debate. They will, however, be moved separately. Both orders are Orders in Council as this is not a devolved matter. Although that is not the issue for this debate—everyone knows the rules regarding the devolution of criminal justice—given the amount of time that these issues have been before the public, it is important that this House should consider the orders.

Before I start on the actual orders I should refer to a correction slip which noble Lords may have seen associated with the draft order. The Joint Committee on Statutory Instruments felt that we should have included a slightly fuller text in the preamble and recital powers of the order. The correction slip provides this and will become part of the final order for printing if it is approved by Parliament.

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