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The point of the Laeken declaration, which gave birth to the plan for a new constitution, and to the disastrous and mismanaged convention that all ended in tears, was to clarify the different layers of power, and to stop the bit-by-bit erosion of what I call the coastal rock cliffs of national interest by the ceaseless pounding sea of Brussels power—the late Lord Denning had even more emotive and evocative words to describe what he thought was happening. That was the intention behind the convention, the constitution treaty and its replica, the Lisbon treaty. However, even the most objective reader, and certainly 1,000—or 100, I must not exaggerate—different authorities throughout the European Union have had to admit that it does the opposite. This is a very confusing document. More powers are now shared. The sharing concept has come to the centre of the treaty yet no one is clear what the sharing means. The phraseology is that it allows member states to act only if the EU chooses not to do so.

The treaty states that:

With the best will in the world, there is a lot of room here for misunderstanding, subjective judgments, legal interpretations, analysis and argument. Certainly, clarity comes at the bottom of the list. It is no surprise that when these texts were drafted at the time of the convention for the previous treaty, the UK argued, first, that shared competence should be a residual category, but of course it is not; secondly, that the idea of an indicative list of competences and shared competences would be the “worst of all worlds”, which is exactly what we have; thirdly, that competition should not be an exclusive competence, which it is; fourthly, that employment, public health and consumer protection should not be shared competences, which they turn out to be in the treaty; and so on.

I shall not delay us any more than is necessary by listing all the new competences. They are extensive and go into areas that were vigorously opposed by the Government, yet there has been a change of heart without any reasonable explanation so far. I hope that we will now hear one. All this badly needs to be clarified. I beg to move.

4.45 pm

Lord Blackwell: I support my noble friend’s concerns on the definition of competences in this treaty. It is one of those issues whereby those who seek in our debates to minimise the impact of these treaties will say, “Here you have things listed in black and white that limit the powers of the European Union, and therefore that must be a constraining thing”. Others will look at the same text and say, “Actually it is enabling of the European Union, because it is sufficiently

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ambiguous and vague to allow huge extensions of the role of the EU”. We will hear both arguments about this use of language.

In my view, the definition of shared competences was, in the words read out by my noble friend, that the EU can legislate in any area where there is a shared competence with unlimited scope. Once the heading is there—and he did not quote an exhaustive list—the treaty prescribes that, as long as the EU can make some tangential reference to the matter in hand as being related to one of the headings, the EU can claim the competence to legislate in that area. We know that as a result of the extensions that the treaty brings in, the EU will have a right in most of those areas to legislate by qualified majority voting. Therefore, these provisions open up almost any area in which the EU might want to legislate as being accessible to it through an extension of these so-called shared competences.

It is notable that the wording of the treaty states that national Governments can—it does not include the word “only”, but it might as well do so—legislate in areas where the EU has not legislated. In other words, we have given the EU the first right to legislate in all these areas. Our national Governments are allowed scope to legislate only in areas where the European Union has not legislated. If those were only a few tight areas related to the working of the Common Market or trade policy, one might think that that was reasonable, but when the headings are as broad as they are, covering just about every conceivable area of domestic policy—whether economic, social, political, environmental, or on justice and home affairs—you realise that we are creating a European Union that has carte blanche to legislate in all those areas. The few areas that were not thought of to be included under those headings are then put in another category of supporting legislation, whereby the EU can act to support or complement the laws of nation states. It does not take too much insight to understand that most of these areas will rapidly be turned into areas where the support and complementarity of the European Union is also becoming a major driving force for legislation.

There is a genuine concern that this aspect of the treaty gives the European Union carte blanche. It is a significant innovation and needs further explanation.

Lord Williamson of Horton: I recall that I made a declaration of interest when we began Committee, many years ago, it seems. We come now to the proposed inclusion in the treaty of categories and areas of Union competence, and I certainly do not support the amendment to exclude that from the Bill.

Surely it is right, and overdue, to make the competences clear in the treaty. I must say that, over a long career, I have never read a plain sentence that opponents of the treaty have found clear. I have found the competences very clear and some have always maintained that they are not. These elements in the Bill are perfectly clear and I think that the actions taken by member states and the European institutions over a long period—at least 35 years, and before our membership—have made them clear. If, 20 years ago,

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I had been asked to write the exclusive, shared and supporting competences of the Union I would have written them in terms identical with those in the treaty, other than the addition of one or two points that I understand, such as energy and so on. Over 20 years, they are exactly what I have understood to be the shared and exclusive competences and supporting actions of the European Union. Those who have read the innumerable booklets, pamphlets, books and other things written about the European Union would have found them there very many times. We are now putting them in the treaty because there is a spirit of greater transparency, and I think it is reasonable to put them in for that purpose.

We see a small number of exclusive competences, and most people are very surprised by that. There are a larger number of genuine shared competences, but in some of the areas the Community acts—and we want it to act—so its role is bigger, and there are a large number of areas where the Union can support member states’ national action. That is the pattern we have been working on throughout our membership of the Union. If it has not been fully understood before, perhaps it is a good thing if we put it in the treaty now.

Lord Dykes: I thank the noble Lord, Lord Williamson, once again for putting the whole matter in historical perspective. It is nothing to be frightened of and therefore I was rather surprised by the anxieties expressed by both the representative of UKIP and the mover of the amendment.

I suppose that there is an understandable anxiety about the inevitably complex appearance of legalistic language, when treaties are drafted, of the relationship between individual member states and the Union itself. This is a codification exercise that is bound to be progressive. If you consult carefully the leading representatives of the 10 member states that have joined recently—and the two others following them, including the two Mediterranean islands, of course—you will notice an enthusiasm always expressed by them for the fact that, as the Union is becoming bigger, allocation of competence, power and duty at the margin is bound to be increased to make the whole thing capable of going forward. If you do not do that, it would stall. The new member states wanted that when they signed up to the treaties and the acquis communautaire.

Once again, if you are an enthusiastic member of the club, the old example of that is that you have to occasionally do what the other member states say. In fact, I distinctly remember a former senior Minister of the Conservative Government, the noble Lord, Lord Lamont, actually saying that in the House of Commons many years ago. It was quite a surprise to hear him say that, and I was very pleased at the time. It is a reality that we have to accept.

The anxieties of the Conservative spokesman and the succeeding speaker, supporting Amendment No. 28A, would have been more justified if there had been any increase in the exclusive competences. As the noble Lord, Lord Williamson, rightly said, they are very brief. Of course, they cover major areas of collective endeavour—I certainly would not deny that.

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Nonetheless, it is a very short and modest list that we have all tended to accept, with the exception of monetary union in this country of course—and I regard it as a great pity that we have not yet joined what is rapidly developing as the most successful currency in the world, at least for the moment. It may not always be like that but it is obviously an impressive currency in international terms.

However, with regard to the other matters, the list of exclusive competences does not create anxiety at all. It includes the customs union under Article 19 of the treaty of Rome 1957, and the competition rules, which I am sure most Members of this House would support. The only way in which there can be a completely free market with an open competition policy is for the Commission to have an exclusive competence to decide that in a European-wide sense, while not in any way infringing on the right of the member states to have their own national competition procedures and frameworks. The list also includes monetary policy, to which I have just referred. We are not yet members of that; we are part members of part of the consultative process but I hope that one day we will be full members. Although this may sound more unusual and esoteric, the list also includes the conservation of marine and biological resources. Perhaps that will be referred to later when we discuss common fisheries policy. One can see that that issue had to be exclusive because the conservation measures could operate only on sea areas that were wider than one member state’s ownership. Also included are the common commercial policy under Articles 110 to 116 of the treaty of Rome 1957, and the international agreements whereby it has been agreed that in future the Union can sign on behalf of all members.

The areas of shared competence and supporting competence are more interesting from the point of view of those who have reservations or are not such enthusiastic Europeans as most members of the Liberal Democrat party in this House and, I hope, the other place. However, again, here the treaty simply sets out rationally the relationship between the Union and the nation states making up membership of the Union where those nation states, in free discussion in the Council of Ministers and the European Council, and by signing treaties on previous occasions, have agreed in a sovereign way that they are prepared to let the Union have some of that competence. Therefore, we on these Benches cannot understand the anxieties, and we hope that the amendment will not be pressed.

Lord Stoddart of Swindon: I have been listening to the Leader of the House and will take only two or three minutes. I want to express some sympathy with the point made by the noble Lord, Lord Williamson, but it would be nice if we could table amendments to the treaty itself. Unfortunately, our procedures do not allow us to do that and therefore we can only amend this short Bill. That is why those of us who want to make amendments have to say, “Okay, you can have the treaty except this”. I agree that that is not a satisfactory way to proceed.

I have just one question for the noble Baroness the Leader of the House. Up until now, replies to Written and Oral Questions have stated that about 70 per cent

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of our legislation emanates from Brussels. Will that figure increase—or perhaps even decrease—as a result of this treaty? Some of us believe that the European Union is doing far too much. If this treaty is to increase the percentage of legislation that comes from Europe, rather than decrease it or leave it as it is, one begins to wonder what on earth this Parliament is here for. Why do we need 649—I think that is the figure; it goes up and down—Members of the House of Commons and why do we need 750 people in this place if the European Union is responsible for at least starting the legislation and powers which we then have to enact?

5 pm

Lord Kerr of Kinlochard: I wonder whether I can help the noble Lord. With respect, the important question that he addresses is not actually relevant to the articles of the treaty on which these amendments focus. If the noble Lord looks at article 2A, paragraph 6 states:

That is why the noble Lord, Lord Howell, said quite correctly that he did not intend to focus on the definitions in each case because we will come to debate them in subsequent amendments; he was concerned simply with these broad categories at the start. The proportion, amount and focus of legislation will not be affected by these articles, which are headline articles that describe categories of competence but do not affect the content of competence at all.

Lord Stoddart of Swindon: That was the question I was asking the Minister. I appreciate what the noble Lord says; his intervention is very helpful, but because I wanted to save time I had not entered into the specifics of the competences. All I wanted to know was whether this treaty would increase the percentage of legislation coming from Brussels—a simple question, to which I hope to have a simple answer.

Baroness Ashton of Upholland: I am grateful to the noble Lord, Lord Stoddart. I did not see him stand up; I was not trying to cut him off in his prime from our discussions.

The categorisation of competences does not do anything new. The Committee will be aware of exclusive and shared competences, and areas where the EU can “support, co-ordinate or supplement” national actions. No change of substance is being proposed here; the categories reflect existing case law and, I believe, provide greater clarity than we have had before. The Select Committee said:

I hope that all noble Lords will agree with that quite important point.

It is also explicit in the Lisbon treaty that powers are given to the European Union by its member states, not the other way round. Again, it is important to clarify that that is how this works. It sets out exactly

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where the European Union has a power to act and in what way, and that it has only those competences expressly conferred on it by the treaties. I would describe that as making it absolutely clear that the member states are, importantly, in control of the treaties—“masters of the treaties” is how the German constitutional court put it.

Another important clarification is that the treaty also specifically recognises that competences can be transferred back to member states. If it is better that one be taken away from the European Union and go back to member states, that can now happen. It is important to recognise that, as Chancellor Merkel said, it is no longer a one-way street; that is absolutely right when there is the ability for things to be returned. Also, in the area of shared competence, if the Union ceases to exercise its competence it reverts back to the member states.

First, then, this is a clarification of what is exclusive and shared, and where the EU is acting to support member states. It is important to say that that is the extent of what the European Union can do, that competencies can be returned to member states and that those are conferred on the Union by member states. I should have thought that all noble Lords would welcome those important points of clarification.

Lord Pearson of Rannoch: Can the Minister help us a little by answering some questions? First, have any powers been returned to nation states since 1972 and, if so, can she identify them? Does she agree that the word competence is very unfortunate, because competence usually means an ability to do something and to do it well? We have come to use the French word “competence”, which means power, so perhaps we should use the word “power” in future when we discuss these matters.

What will be the procedure for returning those powers in future, which I maintain have never been returned in the past? Will that be by qualified majority voting or unanimity? Supposing that the other member states do not want to return powers that we might want returned, how will that work?

Baroness Ashton of Upholland: I have never known the word competence to have had such an emotive response from the noble Lord. Competence is a word that, as I understand it, has a legal meaning; that is why it is used. Words in the European Union often have meanings that are understood across all member states. I do not know of any powers that have been returned; the noble Lord may well be quite right. If I can get the answer to that now, I certainly will.

I do not know what procedure would be used, because that has not has yet been determined. My point was different; it was to say that the treaty recognises the possibility that powers could be returned. That of itself is novel and not to be underestimated as a potentially important aspect of thinking about the role of the European Union now and in future. As noble Lords have said, we are not going to get into the detail of what those competencies would be today. If noble Lords read the evidence given to the Select Committee by my honourable friend Jim Murphy,

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they will see set out the areas of difference in competences relevant within the Lisbon treaty; for example on sport, which is new; on space, which noble Lords have mentioned; on energy, tourism and so on.

When, as we will, we come to debate the issues raised in some of the amendments about specific policy areas, we may as part of that deal with the competences in the treaty. My point on this amendment is simply to say that we believe that categorisation is positive, that it is important to list the competences to understand the limits and parameters of the role of the EU and, as I said, to recognise that this is power—if the noble Lord wishes to use that word—conferred on the European Union by member states, not the other way round. I can confirm to him that no powers have been returned thus far.

Lord Stoddart of Swindon: The noble Baroness says that in the treaty there is the opportunity to get powers returned, but that has been the position since 1992, when John Major was Prime Minister and negotiated the subsidiarity clause. He came back to this country and declared, “Game, set and match”, because he had got that introduced into the Maastricht treaty. Since then, no powers or competences have been returned to this country at all, as the noble Baroness has just confirmed.

Lord Pearson of Rannoch: Does my noble friend remember that Mr Major said that 25 per cent of all EU legislation was going to be repatriated to member states as a result of his brilliant negotiating skills at Maastricht? The noble Baroness has just confirmed that not one such power has since been returned.

Finally, I put this to the noble Baroness. She says that these powers are conferred by treaty on the European Union by the nation states. If she cannot tell us how those powers are eventually to be returned, and if no powers ever have been returned, does this not confirm that we are dealing with a one-way ratchet? We are dealing with the acquis communautaire. The treaties, the protocol on subsidiarity and all the rest confirm that once a power has been passed, it cannot be given back without unanimity in the Council, which is unrealistic. I do not think that it helps to say that these are merely conferred powers.

Baroness Ashton of Upholland: The noble Lord is not going to agree with me on this, but he is right to say that you would have powers returned by unanimity, except in some areas of shared conpetence where, if the EU does not act, qualified majority voting might apply. As we move forward with the European Union of 27 member states, and begin to think about how it is going to operate in the future, one of the interesting points in the treaty is the recognition—whether or not it has been recognised before—that powers could be returned if that were most appropriate. I should have thought that the noble Lord would welcome that.

Lord Stoddart of Swindon: Those were two interventions on my speech, but I have finished anyway.

Lord Howell of Guildford: I am grateful to the noble Baroness for summing up the position as she sees it. There is an important thought here that we always

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plunge into the jargon of these treaties and of the law. It appears that here too we are to some extent in the hands of the lawyers and forget that there is a vast world outside that probably has little clue what we are talking about.

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