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The response of the UK Government and the other member states involved will be to look at what is being proposed and assess its relevance and importance in terms of what was being negotiated. As the noble Lord, Lord Lamont, and other noble Lords said, this is a very important aspect of the functioning of the European Union and of the Lisbon treaty. As noble Lords will know, we considered carefully the other articles to which my noble friend Lord Radice referred: Articles 4, 27, 34, 81 to 89, 96, 98, 105 and 157, where references to competition remain as they were. We will also have looked at the protocol strongly supported by the then-Prime Minister Mr Blair and the now-Prime Minister Mr Brown. I have no idea whether Mr Brown was upset, but I know that he supported fully the ambition of getting a protocol.

Lord Forsyth of Drumlean: I apologise for interrupting the Minister: I do not want to detain her. I am reflecting on the words she used about President Sarkozy: “a symbolic gesture without legal force”. Does that mean that it is the Government’s position that what President Sarkozy promised his people was an empty promise?

Baroness Ashton of Upholland: I am just quoting what President Sarkozy said in the last speech I heard where he referred to this. He said that this was an important symbolic gesture but it was not a legal change in any way. I am merely quoting him. I am not suggesting or trying to get into the mind of the President of France, nor indeed what he “promised to his people”. That is simply my understanding of what he believes. It is a consequence of what happened. The point that I was moving on to is, having got that, it is important to see what the effect of what is being put forward would have. In any negotiation one looks at what is being put forward and determines whether it has an impact that would be detrimental either to the functioning of the European Union or to the Government’s national interests.

I have already explained that the other articles remain the same and read them out. I have also indicated that we promoted and pushed for a protocol to be clear on the matter. We then had to consider the question of whether a protocol has the right kind of status. I am going to quote John Major in 1992, who said:

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Seventeen protocols were annexed to the treaty of Maastricht. The opinion in many different places but not least the Commission is that the protocol is as legally binding as anything else. That is the nature of protocols within European Union treaties.

The question for the Government is simple. President Sarkozy has put forward a proposition for his own reasons. I do not pretend to suggest that I want to interpret them. Having put forward that proposal, which is important to the President of France, the responsibility of the UK Government is to consider whether it has an impact on the functioning of the European Union and national interest. Looking at the treaty, taking the right kind of legal opinion, it is clear that it does not. Noble Lords might have preferred to have the original text within the treaty but the bigger question for the Government is whether it makes any difference. The answer is no.

Therefore, in the spirit of negotiation, it is reasonable for the UK Government to say that, provided we have all the other articles and the legally binding protocol, we believe that the position remains as it did. That is the position that the Government took and stand by.

I turn to Amendment No. 63, which seeks to introduce co-decision for the proposals to address distortions in competition. We support that shift and we believe that it is important to involve the European Parliament in the process. It adds to democratic accountability and transparency.

Amendment No. 62 relates to EU state aid rules intended to ensure fair competition and a single common market. Noble Lords know that the rules prevent state aid that would seriously distort competition. It is not in the UK’s interest. We should have to notify all UK aid to and seek approval from the Commission before the aid could be given, not least because that could result in a delay of up to a year and hold up aid being given to small-scale projects that are unlikely to distort competition.

Amendment No. 64 refers to the promotion of structural reform, the core of the Lisbon agenda which the UK has championed since 2000, referred to by the noble Lord, Lord Hunt of Wirral. Those treaty provisions introduced by Maastricht set a framework by which member states can co-ordinate their economic policies in order to boost competitiveness and productivity, which is a UK interest. The Lisbon treaty makes only limited changes to that framework. It retains the existing provisions for the co-ordination of economic policies by Ministers within the Council. That ensures that it is the member states themselves that remain responsible for their economic policy. It allows the Commission to address a warning to a member state on the same grounds on which the Council can address recommendations. It is an extra procedural step but a warning carries no legal force. It is another route by which our common approach to achieving economic reform could be held up to the light and examined.

Amendment No. 32A refers to the confirmation in the Lisbon treaty of the fact that the single market is a shared competence. In order for the single market to operate effectively it is essential that some activities are managed at EU level to make sure that we have coherence, fairness and transparency. Amendment

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No. 39, to which the noble Lord, Lord Blackwell, referred, is about customs co-operation. There is nothing new in customs co-operation. We participated in it before we joined the European Union. We carry out important co-operation work with member states and the Commission. As the noble Lord will know, that is to do with money laundering, counterfeit goods and illegal meat products. Those are important areas in which we would wish to continue to be involved.

6.15 pm

Amendment No. 71 is on the common commercial policy, which covers trade. It has been part of the treaty since 1957 and has brought huge benefits to the UK. The process does not change under the Lisbon treaty. The key changes are the inclusion of foreign direct investment and the enhancement of the role of the European Parliament.

Amendment No. 72 proposes inclusion of the words,

The treaty merely reflects reality. It is also made clear that unanimity is preserved for CCP agreements in those fields when unanimity would be required for the adoption of internal rules.

Amendment No. 80 looks at the extension of co-decision to the establishment of staff regulations.

Lord Hunt of Wirral: I am not moving that amendment.

Baroness Ashton of Upholland: In which case I think I have covered all the amendments. I hope the noble Lord is happy.

Lord Hunt of Wirral: Happiness is relative. I am grateful to the noble Baroness for her response. I am particularly grateful to my noble friend Lord Lamont for pointing out once again that there is some evidence that Governments are resisting the Commission’s competition policy. He instanced in particular France and Spain, and a number of my other noble friends have given other examples. I certainly agree with my noble friend Lord Blackwell that we are probably looking at more than a missed opportunity—it is an indication that things are moving in the wrong direction. My noble friend Lord Brooke of Sutton Mandeville told us about the Napoleonic war, which the noble Baroness referred to as “a classical education”. It was a classic example of exactly what we have been talking about; I agree with that. My noble friend Lord Forsyth instanced a number of questions that were aimed really at the Liberal Democrat Benches, and I shall come to that in a moment.

To the noble Lord, Lord Radice, I shall say just this. Without going into great detail, there is some evidence that the European Court has questioned the validity of protocols. That is why one is cautious about putting one’s faith into the changes that have taken place.

Baroness Quin: The noble Lord mentioned his concerns about the European Court of Justice, but surely the European Court of Justice would not ignore all the

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many clauses that have been quoted by the noble Lord, Lord Radice, and the noble Lord, Lord Grenfell, which are in the existing treaties and which have a clear commitment to undistorted competition.

Lord Hunt of Wirral: Yes, I agree. I mentioned the noble Lord, Lord Grenfell, who has been meticulous in ensuring that we get the full text of what his committee has deliberated on. He has done what the noble Baroness, Lady Quin, has just done—instant the existing provisions which have always been there. My concern is with the provisions that are no longer there and the replacement with the protocol which I was just referring to the noble Lord, Lord Radice. I cannot agree with the noble Lord, Lord Pearson. I think that he has already identified me as a Euro-enthusiast, which in his view is a derogatory term. I regard it as a symbol of something that I have believed in for so long: a prosperous, peaceful Europe. That is why we want always to improve the way in which the future will pan out.

I agree with the noble Lord, Lord Hunt of Chesterton, not only because we have the same name, but because he made a very important point about the need for constant co-operation. It was my privilege to be associated with a number of instances of that co-operation when I had the honour of having ministerial responsibility for science.

One strange comment came from the noble Lord, Lord Williamson, which I have been trying to work out. He said that the problem with Amendment No. 29B was that it would impose a hurdle. What is the nature of the hurdle? It is that the report must be approved by affirmative resolution of both Houses of Parliament. To a bureaucrat, that is a hurdle. To a democrat that is exactly what should happen. What is the point of being in this House if we do not from time to time affirm important resolutions? I find his comment slightly mysterious; no doubt he will explain it to me in greater detail.

What lies behind this debate is the worry—a deep sense of foreboding—that it is not exactly just symbolic. Charlie McCreevy, the Commissioner for the single market, recently said that,

I agreed with the noble Lord, Lord Pearson, on financial services, because we urgently need in that arena a more efficient and integrated market. In response to the noble Lord, Lord Williamson, I want to consider Amendment No. 29A, which has no mention of a hurdle. On an area on which I think all sides have reflected concern, it merely says that the Secretary of State should report annually to Parliament,

which meets the point raised by the noble Lord, Lord Radice. We are just keeping an eye on it. Therefore, I wish to test the opinion of the Committee.

6.22 pm

On Question, Whether the said amendment (No. 29A) shall be agreed to?

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Their Lordships divided: Contents, 63; Not-Contents, 162.

Division No. 1


Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Blackwell, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Caithness, E.
Carnegy of Lour, B.
Cathcart, E.
Colville of Culross, V.
Colwyn, L.
Cumberlege, B.
Denham, L.
Dixon-Smith, L.
Elton, L.
Fookes, B.
Forsyth of Drumlean, L.
Freeman, L.
Gardner of Parkes, B.
Glentoran, L.
Griffiths of Fforestfach, L.
Hanningfield, L.
Henley, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Jenkin of Roding, L.
Kilclooney, L.
Kingsland, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lindsay, E.
Luke, L.
Lyell, L.
Mar, C.
Marlesford, L.
Mayhew of Twysden, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Noakes, B.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Pearson of Rannoch, L.
Reay, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sheikh, L.
Skelmersdale, L.
Stevens of Ludgate, L.
Stoddart of Swindon, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Trefgarne, L.
Trenchard, V.
Verma, B.
Wade of Chorlton, L.
Wilcox, B.
Willoughby de Broke, L.


Adams of Craigielea, B.
Addington, L.
Adonis, L.
Anderson of Swansea, L.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bew, L.
Bilston, L.
Blackstone, B.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Bradley, L.
Bradshaw, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Chidgey, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Cotter, L.
Crawley, B.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dholakia, L.
D'Souza, B.
Dubs, L.
Dykes, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falkender, B.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fearn, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goodhart, L.
Gordon of Strathblane, L.
Graham of Edmonton, L.
Grantchester, L.
Greengross, B.
Grocott, L.
Hamwee, B.
Harris of Haringey, L.
Harris of Richmond, B.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.

12 May 2008 : Column 853

Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Jones, L.
Jones of Cheltenham, L.
Jordan, L.
Judd, L.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Lea of Crondall, L.
Lee of Trafford, L.
Leitch, L.
Listowel, E.
Livsey of Talgarth, L.
Low of Dalston, L.
Ludford, B.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McNally, L.
Masham of Ilton, B.
Massey of Darwen, B.
Miller of Chilthorne Domer, B.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Murphy, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Neill of Clackmannan, L.
Palmer, L.
Parekh, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rana, L.
Razzall, L.
Rea, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Rosser, L.
Royall of Blaisdon, B. [Teller]
Scotland of Asthal, B.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Thomas of Gresford, L.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tordoff, L.
Truscott, L.
Tunnicliffe, L.
Tyler, L.
Uddin, B.
Vadera, B.
Vallance of Tummel, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williamson of Horton, L.
Young of Hornsey, B.
Young of Norwood Green, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.33 pm

[Amendment No. 29B not moved.]

The Duke of Montrose moved Amendment No. 30:

“(i) Article 2, paragraph 12, inserted Article 2B TEC (TFEU) paragraph 1(d), relating to the conservation of marine biological resources under the common fisheries policy; and(ii) ”

The noble Duke said: This amendment was tabled by my noble friend Lord Howell of Guildford. I am still feeling confused by the reaction of the Liberal Democrats to their own amendment being moved in this House. Luckily, the noble Lord, Lord McNally, put us on notice at the end of his article in the House Magazinewhen he said:

12 May 2008 : Column 854

If they have not confused themselves, I am sure that they have confused most other people.

Lord Forsyth of Drumlean: Perhaps my noble friend can help me. How can it be that the Liberal Democrats voted against an amendment that they put forward in the other place?

The Duke of Montrose: Is that not a question for the Liberal Democrats?

Lord McNally: How is it that the Conservatives voted differently in this House from how they voted in the other place? I said in my Second Reading speech that we were determined not to fall into Conservative elephant traps. Those will have to be a lot better than the one that they just tried to get us to trip into if they are going to succeed over the next few weeks. But I thank them for the advice.

The Duke of Montrose: This amendment opens up a subject that has caused a great deal of pain and confusion since the United Kingdom signed up to the treaty on the European Community in 1957. Since then, a proud industry has been decimated. This is particularly true in regard to the management of fish and marine stocks around these islands. It is incontrovertible that, so far as conservation of marine biological resources is concerned, if the common fisheries policy has existed at all, it has been an unmitigated disaster.

When debating this issue in another place, my honourable friend Bill Wiggin pointed out that the Minister had affirmed that the EU competence on marine biological resources and fishing derived from Article 102 of the UK treaty of accession, which said that,

Until now, that is the sole text to which the UK Government have signed up. This wording was found to be unclear, and a ruling passed by the European Court of Justice in 1979 said that:

Noble Lords will be aware that this means that all control of the resources of the sea, right up to our shoreline, comes under the administration of the European Community. It is only by the grace of three derogations from the starting date of this ruling that we are allowed to administer our own territorial waters between the shore and the six-mile limit. Between the six-mile and the 12-mile limits of our territorial waters, the rules have to be acceptable to all member states. Defra has the responsibility for policing the area, and this is where it can impose its own regulations on British fishermen, but not on the vessels of other member states who have not given agreement. The type of thing that happens is that British fishermen, if they catch crabs that are below a certain size, have to put them back. However, if the

12 May 2008 : Column 855

French boats are fishing next to them, they can catch those same crabs and take them away, because a different size restriction applies in France.

This derogation will expire in 2012. After this treaty, will this derogation be renewed under the codecision procedure or by the Council of Ministers? Whichever, it is bound to be an open question as to what new rules will be agreed under a regime that is founded on unrestricted access to the seas. Surely, when asked to clarify our treaties, we should consider going back to the original document before we sign up to any rewording of the provisions.

The proponents of this treaty tell us that they wish to bring clarity to all European arrangements. In this case, clarity consists of adding to the heading of Article 1, Title II, which is “Agriculture”, the words “and Fisheries”, and then going on to codify the powers in Article 2, paragraph 12, Articles 2B and 2C, by saying that in the area of conservation of marine biological resources under the common fisheries policy, the Union will have exclusive competence. The treaty goes on to say that the common agricultural policy and the common fisheries policy will be areas of shared competence. So much for increased clarity.

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