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The noble Lord, Lord Astor, asked what discussions we had had with other countries. Until the treaty is ratified, we will not engage with partners in detailed discussions on how to implement the provision, but we expect to do so once the treaty is ratified.

The European Union Select Committee considered carefully the PSC provisions in the treaty in its deliberations and in its unanimous report. It is worth quoting—not at too great a length—the conclusions on page 202 of its much praised report. The committee said:

The committee went on:

The committee concluded that,

That, I know, is one of the great concerns of the House.



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In putting forward the case for PSC, I can justifiably claim the almost complete support of our EU Committee.

Lord Astor of Hever: I am sorry that the noble Lord, Lord Lee of Trafford, felt that I had taken a negative line. I thank the Minister for his full response and I agree that we had a useful debate on defence issues last week. I am not totally reassured by his assurances. We are concerned that the details of how the provision will work will be decided only after the treaty’s ratification. We do not believe that it will help to expand European military capabilities and we worry that it will undermine NATO’s attempts at improving its future military capabilities. We think that the Government were quite wrong to have accepted this provision. However, this was a probing amendment and I therefore beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Howell of Guildford moved Amendment No. 26:

“(i) Article 1, paragraph 55, new Article 46A TEU, relating to the legal personality of the European Union; and(ii) ”

The noble Lord said: We come now to amendments that concern the conferring of a legal personality on the European Union in toto. They raise a number of issues that need careful scrutiny, in accordance with our remit and the recognition that we have the task of line by line scrutiny to perform on this complex and wide-ranging Bill, and on the treaty it embodies. Here, once again, we are largely in the hands of the lawyers—which may be nice for the lawyers—and of the Court, as we are on many issues in the treaty. This is because the treaty, which is almost word for word the constitution, lacks in itself the safe, secure legal provision to circumscribe and define the powers of the EU institutions, as opposed to the powers of member states. We will come to this debate later, when we look at competencies. All the while, we have to be aware that it is legal decisions and lawyers’ judgments and assessments, views and counterviews that will decide how these things work out.

I anticipate that the defence of this provision in the treaty from the Government and their apologists will be that there is, of course, nothing very new—that the old European Community had just such a power to sign international treaties and had, in a sense, a legal personality. Indeed, even the European Union under the previous treaties had a treaty-signing power, which automatically gave the EU a kind of legal personality, which has been recognised by a number of professors and legal experts. Now the difference is a big one—with the collapse of the Third Pillar into the combined new constitutional structure of the Union, this power extends considerably from the limits of old Pillar 1 issues, mainly on trade, which the European Community possessed, to foreign policy, defence, crime and judicial issues, and covers all the

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Second and Third Pillar issues that were previously beyond the reach of the EU.

This is a big change. We will have different views on whether it is good or bad, but we must recognise that it is there. It will be, in the words of the former Commission President and former Prime Minister of Italy, Romano Prodi,

Something very big is happening and we cannot be blind to that. The French authorities helpfully went on to explain that:

Even the present Labour Government choked on this one, because this is going very far. I do not know about the position of the Lib Dems obviously, because that is never too easy, but the Government found this very awkward.

Lord Maclennan of Rogart: Just to assist clarification of the Opposition’s view, I ask whether the noble Lord is saying that the European Union did not have legal personality for the purpose of entering into international agreements.

Lord Howell of Guildford: I do not want to obfuscate in any way, but I said a moment ago that the European Community, under previous treaties, had a legal personality and that the EU under previous treaties, by virtue of its power in certain limited areas to sign international treaties, de facto had a degree of legal personality. That is argued by learned professors in lengthy papers. I hope that I understood the probably very deep question of the noble Lord, but that is what I said and that is the position. The clarification that I now seek from the Government on behalf of Parliament regards exactly what is implied in the future manufacture, construction and architecture of treaties that are negotiated and put together by the European Union. Obviously, some new questions arise.

I was referring to the past views of the Government, because those views have changed. Mr Hain, on behalf of the Government, said that we can support a legal personality for the Union only if the special arrangements for CFSP and some aspects of justice and home affairs have been protected. In our view, they certainly have not been protected. The previous Prime Minister, Mr Blair, specifically told the other place at the beginning of his premiership that,

It seems that that insistence has evaporated and some very important questions arise, which I want to put to the Minister. The first is: what powers will the high representative—the Foreign Secretary of the Union—have in negotiating major new international treaties, particularly those governing, as all international treaties do, important areas of foreign policy? What will be the national parliamentary check on Ministers where major positions are taken up or conceded? I realise the difficulties involved as they have always

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been faced by Governments wishing to negotiate, with parliaments rightly wishing to know what is being conceded, argued or claimed, as it were, in private. I do not deny the difficulty, but we have heard a lot about giving Parliament a bigger say in decisions—about going to war, for instance—so what about powers over binding treaties in our name that could lead to major commitments in the future? Just what are we in for on that front?

At the very least, as our Amendment No. 26A proposes, both Houses need a clear report before the Bill rolls forward and it comes into force as an Act, setting out how the independent or interdependent representation of our national interest and purposes in international bodies and other international arrangements—arrangements that we value greatly in this country, giving us considerable sway on and entrée to the global scene—are going to be upheld once the extended legal personality power for the whole Union is in place. We believe that a report of that kind should require the affirmative resolutions of both Houses.

3.30 pm

There was a time when arguing that Parliament should have a greater say in treaties before they were finally signed was a bit out of fashion. We were told that it was all a matter for the Executive and the royal prerogative and so on. I remember many decades ago being impertinent and bold enough as a young Member of the other place to argue that I was a Parliament man. Most people had no idea what one was talking about, but nowadays things have changed and it is all the rage to call for more parliamentary powers over the Executive and the royal prerogative, and for a greater say in all aspects of executive decisions. Indeed, as I have already mentioned, the proposal that Parliament should have a say in the declaration of war is now before us. However, there is a clear move in the treaty, alas, to make for fewer parliamentary powers by our Parliament over executive action, as competence passes elsewhere and accountability is obviously diluted. That trend, as in so many spheres that we are debating in the Bill, is not toward a stronger and more democratic Europe closer to the people but is in the wrong way. It needs to be resisted. For those reasons, I beg to move.

Lord Maclennan of Rogart: Lawyers have given their views about this matter, but what has not been made clear by the noble Lord, Lord Howell, is the unanimity expressed in those views. Indeed, those views have been supported by the Select Committee of this House, which set out very clearly in its report on the impact of the treaty that the provisions on legal personality were not innovatory and simply reflected what was de facto the position under the treaty of the European Union, although it had been explicitly provided for in the European Community.

The most compelling individual evidence given to this House was in the hearings of Sub-Committee C, chaired by my noble friend Lord Roper, by Professor Alan Dashwood. He is a lawyer well known to members of Her Majesty’s Opposition, as I believe he

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advised them during the treaty of Maastricht on this very point. The noble Lord will no doubt have read his evidence, which indicated bluntly:

He went on to say:

Lord Forsyth of Drumlean: I am most grateful to the noble Lord. Can he help me with a problem? If nothing has changed and the EU already has this legal personality, why does this provision have to be in the treaty at all?

Lord Maclennan of Rogart: I think it is clear that the purpose of this exercise was to clarify the matter beyond the sniping that has sometimes taken place and beyond the exaggeration by some commentators of the significance of the issue. The Union is clearly proceeding towards making comprehensibility a factor. I believe that recognising that the new treaty will spell this out will end the oddity of the situation in which explicit legal personality is provided for in respect of the trading matters under the original European legislation, the European Act and other international matters. The question of whether this has, as has been suggested by some anti-Europeans, the significance of conferring on the Union the attributes of a state has also been bluntly and clearly answered by the report of the European Union Select Committee. In answer to a question from the noble Lord, Lord Swinfen, whether de facto possession of a legal personality makes the Union a state, Professor Dashwood answered:

It is clearly nonsense to suggest that the explicit conferral of a legal personality on the Union in any way makes this a conferral of a state on the Union.

It has been suggested that in some way this muddies the waters so far as concerns the representation of the Union in international organisations, such as the Security Council of the United Nations. Once again, the evidence is absolutely clear from all witnesses that this House has heard. The noble Lord, Lord Kerr of Kinlochard, asked questions about this and was again clearly answered that the status of individual member states was unaffected by the conferral of a legal personality on the Union as a whole. At any time, two permanent members or other members of the European Union may sit on the Security Council, and their role is in no way affected or diminished by the conferral of a single legal personality on the Union.

Perhaps most importantly, the question needs to be addressed of the impact of conferring a legal personality upon the competence of the European Union to enter into international agreements. It is

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clear, again without dissent from those lawyers who spoke to the House, that the conferral of a legal personality in no way affects the European Union’s competence—the terms of the European Union treaty specifically provide for its competence to enter into international agreements. Nor does it affect the relative competences of the European Union and its member states, as summarised in the opinion of the European Union Select Committee.

I rely heavily on evidence from that committee, because it is a body representing many different views about the virtues and limitations of the European Union. That that judgment was unanimously accepted seems compelling to me, and ought to put the whole debate about the legal personality to rest.

Lord Pearson of Rannoch: I was waiting for the noble Lord to finish his point. Would he agree that, of the 24 members of your Lordships’ European Union Select Committee, only one is a declared Eurosceptic? Even he does not favour the position shared by millions of British people: that the United Kingdom should leave the European Union. Does the noble Lord understand that many of us—I made this point in November when the committee was reappointed—do not accept your Lordships’ Select Committee report as having the authority which the noble Lord would wish to confer on it?

Lord Maclennan of Rogart: There is a spectrum of views among members of the committee, from those who might be described as enthusiastic Europhiles to those who are more sceptical. I do not accept for a minute that that in any way diminishes the authority of the unanimous view expressed by the committee on those matters. I believe it is also open, although it would be unusual, to those who dissent to indicate whether they did and were not in agreement. No such expressions of dissent were made.

Lord Pearson of Rannoch: We had this debate the other evening, when the noble Baroness, Lady Symons, was attacking my noble friend Lord Blackwell, the sole Eurosceptic on that committee. Does the noble Lord agree that it is not all that easy to produce a minority report of one? If, as he says, there is a broad spectrum of views on the committee, would he be good enough to name the other Eurosceptics on it?

Lord Grenfell: I hesitate to intervene, but I feel I should come to the defence of the committee and, particularly, its membership. One important consequence of the committee’s work on the Lisbon treaty was to produce what, by any standards, is a thoroughly objective impact assessment. The noble Lord shakes his head, but I assure your Lordships that having sat in the chair for many long days while working on this report, there was an absolute consensus in that committee that we would thrash out the issues around the table, but that what we wrote would be an objective impact analysis of the treaty and what changes it would bring about. So I have some reservations about and feel rather hurt by the implication that this was somehow a political exercise dressed up as something entirely objective. It was not.



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3.45 pm

Lord Maclennan of Rogart: I am very grateful to the chairman of our committee for that statement, which I think puts the matter beyond further argument.

In making my final point about the issue of single legal personality I want to reflect briefly on the reasoning already expressed by the Government, which it is perhaps better for the noble Baroness to express for herself and for them, but there were earlier stages in the discussion of this issue when the single legal personality was not explicitly endorsed for inclusion in the treaty because the Government, in their diplomatic exercise, were seeking to put beyond doubt that the retention of the common foreign and security policy would be a separate matter requiring unanimity in the Council before international agreements were entered into. They wanted that to be clearly defined, as it has been, in a separate treaty. That makes it understandable that the Government took the position that they did.

That position has changed and the Government have—to my mind, sensibly—accepted that there is a need to bring together the actuality—the existence of de facto legal personality—with a juridical legal personality in respect of other matters, such as trade. That is a sensible clarifying move, and one that I hope will now be considered to be beyond dispute, at least by lawyers. I find the hesitation about lawyers rather surprising, because I am not entirely clear who else the noble Lord believes we should turn to for expert advice on interpretation of the language of treaties.

Lord Stoddart of Swindon: The noble Baroness has spoken to a number of us to ask us to keep our speeches as short as we possibly can. That is exactly what I intend to do, but I want to support the amendments. They are important and they should be properly discussed and replied to.

I say to the noble Lord, Lord Maclennan, once again that he makes a big mistake in accusing those of us who believe that we should not belong to the European Union of being anti-European. That is a serious charge that I refute absolutely. I am not anti-European, but I do not want to be governed by the system imposed on us by the European Union. I hope that he will not again accuse people like me of being anti-European.

As the noble Lord, Lord Howell, pointed out, there seems to be a complete difference between what our Government believe a single personality means and what other people think it means. There is no question but that Romano Prodi jumped with joy when he saw the article appearing in the constitution, now transferred to the Lisbon treaty. He said that this is a gigantic step forward. Where a chap like Prodi speaks like that, we must take some notice of him. When he is supported in that view by the French during the referendum and then when you listen to people in this House, we are entitled to ask what the position of Her Majesty’s Government really is. Did they oppose it in the first place? Have they opposed it at any stage? Did they oppose it during discussions on the constitution? Did they oppose it during discussions on the treaty? Perhaps they are not going

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to defend it and I hope that they will not. But if they are going to defend it, why on earth are they going to defend this article being in the treaty when they were previously against it and other people think that it is going to take the business and the policy of integration forward by a great step?

Lord Pearson of Rannoch: It may be that the noble Lord, Lord Maclennan, and others favour this project of European integration—I associate myself there with the remarks of the noble Lord, Lord Stoddart. The process of European integration, the EU, is a completely different thing from the Europe of nation states which we all love and support.

Legal personality is, to some of us, the most important aspect of the new treaty. Today, Bruno Waterfield of the Daily Telegraph quotes from various bureaucrats involved in drawing up the new constitutional position. He quotes one of these bureaucrats as saying:

One EU official said that the Lisbon treaty was,

That is what is going on in Brussels. It is underlined and supported by the new legal personality, which is regarded as the jewel in the crown in many of the corridors there.

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