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I do not know whether the Leader of the House is aware that the proposal for legal personality for the whole European Union—as opposed to just for the Commission in trade matters and so on which we agree has been there since 1972—was vetoed by Chancellor Kohl at Maastricht. He thought that it gave the European Union too much power. That power will, in the end, be exercised by the Luxembourg Court of Justice on whose judicial activism we have already commented in these proceedings and doubtless we will return to them.

In the draft constitution, the wording for legal personality was that the EU,

However, in the final version the last seven words were amended, in order, I understand, not to expose this huge advance of the EU’s power too clearly to the unhappy public.

Can the Minister tell us what limits are put on this new legal personality? The noble Lord, Lord Howell, has already mentioned that the pillars—justice and home affairs, and the common foreign and security policy—are now gathered under this legal personality. Perhaps the best way of asking the Minister that question is to quote two Written Answers she sent to me on 28 February this year when I asked:

I also asked her:



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The noble Baroness has not yet answered that question. It would be helpful if she did so this evening, because it would enable us to define the borders of this new power, which we maintain do not exist. In the end, this power confers on the European Union, supported by the Court, almost unlimited power, bearing in mind the European Charter of Fundamental Rights and various other aspects of the treaty.

I will quote the noble Baroness’s Answer to her, in case she does not have it to hand:

We will come to that later. Then she says:

What are those competences? What remains with the member states in which the EU cannot interfere at all when it has this new overarching legal personality that is superior to that of the member states?

Lord Tomlinson: If you invent fairy stories and keep telling them, they acquire a life of their own; they go down as bedtime reading for children down the generations. What we have is much more precise than the noble Lord, Lord Pearson of Rannoch, would have us believe. The whole question of legal personality is not a new phenomenon in international organisations; it is a constancy. It applies in the United Nations and in the International Criminal Court. It even applies in the Universal Postal Union. All these bodies have legal personality.

The change that has been made, bearing in the mind the need to clarify “legal personality” for the European Union, is very simple and quite clearly backed up by Declaration 26 of the Intergovernmental Conference. For the sake of everyone having the same song sheet, I will briefly read one sentence from Declaration 24 on the legal personality of the European Union:

That will satisfy the overwhelming majority of people. I do not expect it to satisfy the noble Lord, Lord Pearson of Rannoch. He will continue to tell his fairytales, and the rest of us will continue to ignore them.

Lord Forsyth of Drumlean: Perhaps the fairy story that we need to think about is Little Red Riding Hood and the question that we need to ask ourselves is who is in the bed. Is it grandma or something different? The words that the noble Lord read out are completely irrelevant. He is confusing two things. One is what the European Union will do; the other is the question of its legal personality. As I asked the noble Lord, Lord Maclennan, if all this is just clarification and the EU has had this personality before, why is it necessary to have this in the treaty? As the noble Lord, Lord Stoddart, asked, where were the Government on this and why did they fight so hard to prevent the creation of this legal personality through the treaty if this is all a fuss about nothing? We come

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back to what we were told at an earlier stage when we discussed the same document, which then was called the constitution and which at one stage Mr Peter Hain and others argued was simply a tidying-up exercise. So we are back to the argument that this is just a tidying-up exercise and nothing of any great import. I very much support my noble friend Lord Howell in tabling the amendments, which go to the heart of the issue.

4 pm

Baroness Ludford: The noble Lord talked about confusion, but does he accept that one source of the confusion is assuming that a legal personality is equivalent to statehood, which it is not? The fact that many international organisations have legal personality shows that it is not an attribute of statehood. Therefore, it is not conferring statehood on the European Union to clarify that it has legal personality. That is one misunderstanding in this discussion.

Lord Forsyth of Drumlean: There is no misunderstanding. There are two models for developing our co-operation with Europe. The noble Lord, Lord Pearson, would rather be out of it altogether but, for those of us who wish to remain in the European Community, there is the model that sees it as an organisation in which there is co-operation between member states and there is the Liberal model, which is basically about creating a federal state and a federal Europe.

The noble Baroness shakes her head, but I thought that the Liberals were very keen on European federalism. It is difficult to know what the Liberals think on these matters because they have not tabled amendments; they are simply acting as cheerleaders for the Government and are not providing any detailed scrutiny. However, I thought that there was support for European federalism. If you are a federalist, you want to create an organisation that has a legal personality because you want to create a country called Europe. Those of us who think that that will destroy Europe see legal personality as a particularly sensitive issue. That is why my noble friend Lord Howell is right to move this amendment.

Having been there myself, I feel sorry for the Minister. She will no doubt reassure us that none of this really matters—that it is just a matter of clarification and the rest. However, two or three years down the line, we will find that it means considerably more than that and that there is no going back. If this is just a matter of clarification, taking it out will not make any difference to the progress of the European Union. The reason why Mr Prodi was so ecstatic is that he is a member of the group that sees Europe as having a federal structure and wants a constitution accordingly.

Lord Hannay of Chiswick: The noble Lord has given the Committee a wonderful description of one group that is charging ahead for a federal Europe and the others, who believe, as he does, in co-operation between sovereign states. Will he say why, in a large number of intergovernmental organisations that involve purely co-operation between sovereign states, the organisation concerned is given international legal

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personality? Why on earth is that? I can answer the question perfectly easily, although probably not in terms that are very helpful to him. The reason is that it is a useful thing to do and the totality of the member states of that organisation believes it to be so. That is precisely what the Lisbon treaty will do.

Lord Forsyth of Drumlean: I am confused; no doubt the Minister will be able to help us in her response. Those who are arguing for this say that it does not represent a change; they say that the EU has always had this legal personality and that there is no need to make a change. Therefore, why is it necessary to go further? I give way to the author.

Lord Kerr of Kinlochard: Perhaps I may help the noble Lord. The answer given by the noble Lord, Lord Maclennan, was that many thought it right to make this explicit. My answer is that many think it right to make it clear that we are no longer talking about legal schizophrenia. There was a time—from the beginning—when the European Communities had an acknowledged legal personality, which was recognised by all, and a treaty-making power. From about the time of Maastricht, when the party of the noble Lord, Lord Forsyth, was in office, it became clear that the European Union had a legal personality. It was running cities in Bosnia and had to be capable of being sued for its deeds or misdeeds. So it is clear that it had a de facto legal personality from the early 1990s. However, some still argued that it had two personalities: when it was the European Union it had one; when it was the European Communities it had another. The discussions in the first months of the convention, in which the noble Lord, Lord Maclennan, took part, established that there was no need to maintain this schizophrenia.

The question of a single legal personality is interesting. The noble Lord, Lord Howell, asked precisely the right question: what does that mean for the powers of the high representative? What can he do with the single legal personality? The answer is, of course, exactly the same as the rotating president of the Council could do. It is not the legal personality that confers new competencies or powers; it is what the rest of the treaty says.

Lord Campbell of Alloway: After listening to the debate, I agree that the amendment serves a valuable purpose. We come full cycle again. Whether or not we have a legal personality is not the point; the point is whether or not it is a legal personality of a federal structure. It is the federal structure that matters and this debate brings out its essence. I do not wish to be a party to criticism of the membership of any committee of the House, but we are not dependent on this report. We can assess the merits of a debate that the members of the committee may well not have entertained and we can look at it as we wish. I support my noble friend because the debate brings us back to where we have to start.

Lord Forsyth of Drumlean: In response to the noble Lord, Lord Kerr, who knows a great deal about this matter, having been very much involved in the early

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drafting of the treaty, I need to reflect on the concept of a split personality and schizophrenia. The real schizophrenia is between those people who wish to create a federal Europe and the rest of us, who want a Europe that is based on co-operation. Therefore the concern at the heart of my noble friend’s amendments, as my noble friend Lord Campbell indicated, is precisely what this legal personality will be used to achieve and what it will mean in the longer term. It is an important matter and should not be rushed through.

I am getting signals from the Leader of the House to speak briefly—and people have spoken rather briefly—but this is of fundamental importance to the future of the Community and to our ability to govern ourselves.

Baroness Ashton of Upholland: I was not trying to signal that to the noble Lord; I was seeking to see whether or not he had finished. The noble Lord was interrupted and I thought that I would let the noble Lord, Lord Campbell of Alloway, move on from an interruption to a new speech. It was purely a point of clarification.

I have spoken to noble Lords about how far we might get today and, as there are so many noble Lords who reasonably wish to speak in the debate, whether we could keep our remarks succinct. I rise only when I think that we have said everything that can be said and are in danger of saying it again. At that point, it benefits us all if I at least give my response to what has been said. Often noble Lords wish me to do so.

We have to be careful that no one impugns the integrity of anyone in the House. The committee did a fantastic job in looking through the treaty and I pay enormous credit to it. I also pay credit to all the noble Lords who spent an enormous amount of time and energy reading the treaty and coming to their own opinion on it.

The noble Lord, Lord Pearson, does not need to interrupt me. I am not impugning his integrity. I am simply saying that I think that we should, as a general way of operating, regard all that is done to improve the clarification of this treaty as being positive. In no way does that prevent noble Lords from disagreeing with conclusions that have been reached. I do not accept that, just because one holds an opinion, one cannot look at information properly.

Lord Forsyth of Drumlean: I thank the Minister for giving way. My question is about the use of this phrase “impugning the integrity” when looking at the views on a committee. Let us take as an example the committee with which the noble Baroness is involved that is looking at the future of this House. I think that I can say that all the people on that committee have a view on the reform of this House that is not in line with the feelings in the rest of the House. Her committee represents a particular view and, when it reports, I think that we will be entitled to say, “Well, they would say that, wouldn’t they?”.

Baroness Ashton of Upholland: I have no doubt that the noble Lord will say that, but that committee represents the views of all the political parties. It represents policy for the Conservatives, the Liberal

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Democrats and the Labour Party. The noble Lord may wish to disagree, but I suggest he takes it up with his own party. The shadow Leader of the House in another place is clear in her representation of the policy.

However, let us not get involved in that. Of course, the noble Lord is right that noble Lords can disagree with the conclusions of a committee. That is my point. What I am arguing is that we have to be a little bit careful, particularly in your Lordships’ House, that we do not, by accident, impugn anyone’s integrity. That is all that I want to say on that. The noble Lord was clever in getting the issue of Lords reform into this debate.

I agree with the noble Lord, Lord Howell of Guildford, on his non-lawyer point. I am a non-lawyer, too, so I am in the happy band of people who wish to look at these issues from that important perspective. I begin by addressing the concern that noble Lords have raised about the position of the Government in 2004 and of my right honourable friend Peter Hain in his then capacity as Minister for Europe. The great concern of the Government at that point was the potential impact on the separate intergovernmental nature of CFSP—common foreign and security policy. Once safeguards had been agreed—and within the Lisbon treaty we are very comfortable with the distinct nature of CFSP—our concerns went away. Noble Lords are completely right that the Government raised concerns. The concerns, as far as we are concerned, were addressed. Once we had the present position, we were content to move towards a single legal personality.

Noble Lords have indicated far more eloquently than I can that this is not a new or particularly unusual concept. Lots of different organisations carry legal personality. My favourites are Vine and Wine and the Western Indian Ocean Tuna Organisation Convention. There is a raft of different organisations—some very familiar to noble Lords, some less familiar—that have legal personality. It is a standard characteristic of many international organisations, including the UN, and enables them to conclude international agreements where those are necessary to carry out their work.

As the noble Lord, Lord Howell of Guildford, said in his opening remarks, the European Community has had legal personality since the treaty of Rome in 1957. It has concluded hundreds of international agreements that cover all fields of Community activity—trade and development with third countries and international organisations, for example. As the noble Lord, Lord Forsyth, knows and as the noble Lord, Lord Kerr, described—and I will not put it in terms of schizophrenia—the European Union was not expressly given legal personality when it was set up. As the noble Lord, Lord Maclennan of Rogart, said, it has always been regarded as having legal personality in that it now has the power to conclude agreements in its own name. It has concluded about 100 such agreements in its own right.

Since the treaty of Amsterdam in 1997, it has had the explicit power to do that in CFSP and in police and judicial co-operation in criminal matters. So, for example, agreements with the United States of America on extradition and mutual legal assistance

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were made in 2003, a co-operation agreement with the International Criminal Court was made in 2006 and there have been a number of agreements concerning EU police missions referred to by the noble Lord, Lord Kerr, to operate in the Former Yugoslav Republic of Macedonia, Bosnia-Herzegovina, the Democratic Republic of Congo and Afghanistan.

What would happen at present—this is the simplest way of describing why we need to move to the single legal personality—is that the European Union and the European Community would need to accede separately to agreement, each within their own area of responsibility. That inevitably creates a degree of complexity, particularly for the third country or organisation concerned when, instead of concluding agreements with one organisation, it has to do so with two. The treaty simplifies the existing position, where there are two bodies, the EU and the EC, by providing that there will just be one body—the European Union. We believe that that will enable it to operate more effectively internationally and will help to make the actions with regard to third countries and organisations more coherent.

4.15 pm

My noble friend Lord Tomlinson has already read out Declaration 24, which expressly says that the treaty will not create any new powers for the European Union. As the noble Lord, Lord Maclennan, and others have said, the EU Select Committee of your Lordships’ House made it clear in its impact assessment that:

It goes on to say that the European Community expressly and the European Union implicitly have had legal personality before.

The noble Lord, Lord Howell, asked whether the legal personality would somehow allow the European Union to become a member of the Security Council or be more involved in it. The answer is no. As I have indicated, a vast range of international organisations have legal personality but none of them can join the UN, let alone the Security Council. As noble Lords who are more familiar with this subject will know, under the UN charter, membership of the UN and of the Security Council is open only to states, so the only way in which the European Union could join the Security Council would be by amending the UN charter itself.

Noble Lords have asked what this means for the high representative. The noble Lord, Lord Kerr, indicated that the noble Lord, Lord Howell, had asked the right question. As the noble Lord, Lord Kerr, said, the high representative will take over the role of the rotating presidency in negotiating, where mandated by the Council, in the area of common foreign and security policy. It is for the Council of Ministers to mandate the negotiation of such agreements and to conclude them. In the area of common foreign and security policy, that would be by unanimity within the Council. We have already discussed that at some length in Committee with regard to the relationship between the high representative and the Council.



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On parliamentary control of treaties, the position will be exactly the same as at present: where the EU, rather than the UK, is a party, the decisions are subject to parliamentary scrutiny in the usual way that has applied for many years. There is no change on that. As with all international organisations with legal personality, the EU can act only within the limits of the powers conferred on it by the treaties.

Because this is, one could argue, a way of tidying up and making it easier to conclude agreements with other organisations and states beyond the European Union, we see no reason to lay a report about this before your Lordships’ House or another place. We think that this is an important way of ensuring that the treaty deals with outstanding issues where business could perhaps be transacted better by taking us forward into a single legal personality, but it is nothing more than that. It is an important step, and one that I hope noble Lords will support. I hope that the noble Lord will withdraw his amendment.

Lord Howell of Guildford: I am grateful to the Minister for her reply. Quite a lot in this brief debate has turned on the remarkable and voluminous work of the European Union Committee. The chairman of that committee does a splendid and superb job, but not even he would claim that every word of every report was the gospel truth that shall not be gainsaid or questioned. Like all bibles, it is capable of a certain amount of interpretation in rival ways.


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