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I was merely trying to draw these amendments to a close in the happy conclusion that the Government have said that it will not be possible to be prosecuted, extradited or anything for the crime of xenophobia when it entails speaking against or insulting the European Union, especially as the project proceeds. My noble friend Lord Stoddart may well be right. As I said, I think we need to look at Hansard and come back on Report if necessary.

On direct taxation, I think that the Minister said that this amendment was quite unnecessary. I fear that he will turn out to have given a hostage to fortune. I am reasonably sure that as this project proceeds, using the single-market provisions of the treaty which are under qualified majority voting or the social policy provisions of the treaty, the European Union will get its tentacles round more of our direct taxation than it has already done through the judicial activism of the Court. But I am delighted that the noble Lord said that. As I say, I hope he has not given a couple of hostages to fortune. In the mean time, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 130 and 130A not moved.]

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Clause 3 [Changes of terminology]:

Lord Hunt of Wirral moved Amendment No. 131:

“(c) may be made only if a draft of the order has been—(i) laid before Parliament; and(ii) approved by a resolution of each House”

The noble Lord said: Clause 3 deals with changes in terminology and the necessary and consequent alterations in both terminology and numbering in UK legislation that the treaty of Lisbon makes necessary. Amendment No. 131 is in my name and that of my noble friend Lord Howell of Guildford. It is about parliamentary accountability. How should the procedure be dealt with to ensure that Parliament scrutinises any necessary changes which come forward? Our concerns with Clause 3 centre on the legal confusion and unintended consequences that might result from hasty and unscrutinised amendments to UK laws.

It has become a general principle that if the Government wish to take Henry VIII powers to amend primary legislation by order, then we as a House look at that very seriously indeed and want to scrutinise it very closely. In this case the sensitivity of the legal ramifications of the changes surely make the case that there should at least be affirmative parliamentary approval.

The changes are consequent on the collapse of the three pillars into the overarching term “the European Union”, the EU. The European Community will no longer have separate legal status; nor will the common foreign and security policy. Police and criminal justice co-operation will be handled separately. The Government have given various assurances about the efficacy of the CFSP exemption in Clause 2 and of the safeguards around the introduction of further police and judicial co-operation, about which many noble Lords have expressed deep concern. The differences of view expressed in the other place on the potential effects of these changes reinforce those concerns.

I do not want to go into all the ramifications of these changes. They were dealt with in extensive debate in the other place. I want to confine the debate about the amendment, if that is possible, to the procedural mechanics of how the changes should be effected.

Of course, the amendment in no way prevents necessary drafting changes being made. All it does is give an opportunity for Parliament to reassure itself that they are as innocuous as the Minister will no doubt claim. However, we need a little more than just assurances.

The amendment says that, under Clause 3(5), if there is to be an order under subsection (4), it shall be made by statutory instrument. Paragraph (c) says that it shall be subject to annulment—the negative resolution procedure. The amendment would insert a new paragraph (c) containing the words,

(i) laid before Parliament; and (ii) approved by a resolution of each House."

I followed the debate in the other place very carefully indeed. I saw that this was a major issue, as it is—and should be—in this House. References to the European Community are to be replaced with references to the

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European Union. On the face of it, that seems a simple process, until one looks at the context in which all these changes are to be made. Looking at the speeches of many Members of the other place, one is concerned about how wide-ranging these changes might become and about the wonderful law of unintended consequences. There is therefore a good case for Parliament to be involved in scrutinising the changes.

I was impressed by the speech in the other place of Jo Swinson, the Liberal Democrat Member for East Dunbartonshire, who not only said how strongly she agreed with the spirit of the amendment, but clearly stated that the Liberal Democrat party would support the amendment, because it is,

She pointed out that all the amendment did was propose the sensible change of moving from the negative to the affirmative resolution procedure. She expressed herself well when she added that the amendment both proposes that we should keep:

What a wonderful objective, which I wholly endorse. She added how much she welcomed the opportunity to join forces with the Opposition:

I say this because there is a rumour that the Liberal Democrats in this place have decided to support the Government not only on amendments with which they disagree, but on amendments with which they agree, with which their party agrees, and which their party moved in the other place. This is currently no more than a rumour, and we are about to put it to the test. I say, by way of warning to whoever is going to speak from the Liberal Democrat Benches, that such was the persuasive speech of Jo Swinson that it caused her party leader, Mr Clegg, accompanied by Dr Vincent Cable, Mr Edward Davey, Danny Alexander and Chris Huhne—the list is endless—to swarm into the Lobby with the Conservative Party in favour of the amendment. I therefore anticipate with profound optimism that we shall get support on the amendment.

It is important for parliamentary democracy that we should have proper scrutiny in this place. I therefore have much pleasure in begging to move.

Lord Pearson of Rannoch: My noble friend Lord Willoughby de Broke, the noble Lord, Lord Stoddart of Swindon, and I have a Question about whether the schedule should stand part of the Bill grouped with this amendment. We tabled this to draw your Lordships’ attention to how the stealthy but steady advance of the project of European integration has been reflected in its name over the years.

First it was called the European Common Market, which is what the people of this country thought that they were voting for in 1975. Then it became the European Economic Community; not much change there, you might think. Then it became the European Community; again, not a big difference, unless you were on the ball and not asleep at the switch. Finally, of course, it became the European Union, which is—

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Lord Tugendhat: I think that the noble Lord is in error. It was never called the European Common Market. It began with three institutions: the European Economic Community, the European Coal and Steel Community and EURATOM. In the late 1950s, the three were merged into the European Economic Community. I think that he will find that, at the time of the referendum, the people of this country wisely decided to remain members of the European Economic Community.

Lord Pearson of Rannoch: I am grateful to the noble Lord, but I hope that he will concede that most people in this country still refer to the Common Market. That is what it was known as and what, in 1975, I thought that we were debating; it was called the Common Market. No doubt he is technically correct, but that is how it started and how it still is in the minds of most people. As I was saying, we have now progressed through all these stages towards the European Union, which is what we have today. Any use of earlier stalking horses has now been banned.

You have to hand it to the Eurocrats: they think long-term. No doubt they continue to do so with this constitutional treaty of Lisbon.

Lord Wallace of Saltaire: Briefly, I compliment the noble Lord, Lord Hunt of Wirral, on the massive amount of work that Conservative Party researchers have clearly been putting into this.

Lord Hunt of Wirral: I just read Hansard.

Lord Wallace of Saltaire: We all appreciate that we play games on this. I simply read the relevant report of the House of Lords Delegated Powers and Regulatory Reform Committee, which satisfies us on this point:

We on these Benches accept that. We remain deeply committed to active parliamentary scrutiny on the whole process of European integration. That cannot only be done as we pass each institutional amendment to the treaty. We must work at it through our committees as well as in our Chamber on a continuing basis. That is the sort of scrutiny to which we are committed. We are rather less committed to playing games with the Conservative Opposition.

Lord Stoddart of Swindon: I should like to quote from Britain’s New Deal in Europe, the document issued by the then Labour Government prior to Britain’s entry into the Common Market. It says:

So the terminology “Common Market” is perfectly correct, and is set out in the new deal document.

19 May 2008 : Column 1319

According to this important amendment, an order made under Clause 3(4) would be subject to affirmative resolution. If it is not accepted it will mean that any terminology—terminology is important in my view—that is altered will be put into operation and under the acquis cannot then be repealed before a Motion for annulment can take place. That is why the amendment is so important. It asks that before any terminology that might adversely affect this country is put in place, Parliament should have a say that means something rather than just expressing an opinion. I support the amendment and urge every Member of the Committee to do the same if they want to protect parliamentary power and privilege.

8 pm

Lord Bach: Amendment No. 131 relates to the power in the Bill allowing the Government to make changes to terminology or numbering resulting from the Lisbon treaty in other pieces of UK law. The Bill provides for references in UK domestic legislation to the “Communities” to be treated as references to the “Union”. The schedule sets out other changes in terminology in the European Communities Act 1972 and the Interpretation Act 1978 needed to reflect the change from European Community to European Union.

Other consequential changes may be required in other pieces of legislation. That is why the Bill contains a power for the Government to update terminology and numbering in existing legislation by order, subject to annulment by resolution of either House of Parliament. That is a power to make purely technical changes. For example, the article numbers in the treaties will change on entry into force of the Lisbon treaty. The “co-decision procedure” is renamed the “ordinary legislative procedure”. These are not changes of substance, but may need to be updated in UK law to reflect the change of terminology. I repeat that this will not mean any change of substance in terms of existing UK legislation. It is a purely technical updating exercise. Clause 3(4) makes it clear that the power to update references in existing legislation is limited to changes,

This order-making power is necessary to avoid any legal uncertainty as a result of changes to terminology. The negative resolution procedure is appropriate in this case. Otherwise each House would have to approve every single such consequential change. We believe that we have got it right. Clause 3 avoids that exhaustive—not to say exhausting—exercise. As a safeguard against the unlikely event that this or a future Government would try to exceed the very limited power to make orders set out in the clause, it is clearly provided that any orders are subject to annulment in pursuance of a resolution of either House of Parliament.

Lord Roper: I have been following the Minister with great attention, particularly in view of the remarks of the noble Lord, Lord Hunt of Wirral, and those of my honourable friends in another place. There are precedents for this in previous legislation that has been introduced to amend the treaty, and I understand that the negative

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procedure has been used on every occasion to make comparable changes. I hope that the Minister will confirm that in due course.

Lord Bach:I am not in a position to confirm that tonight but if the noble Lord, Lord Roper, knows it to be so, that is good enough for me. Of course it will not be good enough for the House so I shall find out. That is another powerful argument. Indeed, my most powerful argument has already been employed by the noble Lord, Lord Wallace. I am slightly disappointed that he mentioned the finding in the Delegated Powers and Regulatory Reform Committee. When it is against the Government, we hear about it so much—rightly, as it is a respected and independent Committee of this House. Having considered the matter, it came to the view that neither the delegation nor the level of scrutiny was inappropriate. That is good enough for me in this case; good enough for the Government; and it should be good enough for the noble Lord, Lord Hunt.

Lord Wallace of Saltaire:We heard a number of things about changes in terminology and the importance of us believing that everyone used to call it the “Common Market” and still thinks of it as a common market. My recollection of the question on the ballot paper for the referendum in 1975 was that it referred to whether we wished to stay in the European Communities, not in the Common Market. Is that the Minister’s recollection?

Lord Bach: I admire the noble Lord’s memory, but I am afraid that I cannot remember.

Lord Hunt of Wirral:We have had a lot of unanswered questions, including the last one. It seems that no one can remember. I much prefer to concentrate on the present and the future. I thank the noble Lords, Lord Pearson and Lord Stoddart—

Lord Stoddart of Swindon: I think that I can answer the question posed by the noble Lord, Lord Wallace. In his introduction to the document, which unfortunately has gone to Hansard, Harold Wilson, the then Prime Minister, referred to the European Community and, in brackets, Common Market. You can take which one you like.

Lord Hunt of Wirral:Obviously in this discussion between the noble Lords, Lord Wallace and Lord Stoddart, terminology is very important. It is important to me, too. My noble friend Lord Tugendhat reminded us how it all started, and in some ways his words are a caution to us all. When we joined the Common Market, as it was then called, there were three treaties: the European Coal and Steel Community treaty signed in 1951; the European Atomic Energy Community treaty, usually known as EURATOM; and the European Economic Community treaty, usually abbreviated to the EEC, set up by the Treaty of Rome in 1957. Collectively those treaties form what were known as the European Communities.

I am grateful to the Minister for explaining why he opposed this amendment. He did so because he said that we would be led into an exhausting procedure. He said it in such a tired way that there was a wave of sympathy, mainly because he is such a hard-working Minister. I then asked myself, what am I proposing that will exhaust him? It is merely that instead of

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putting the onus on those who wish to question something by putting down a Prayer to cause a debate, identical procedure would be followed in drawing up the changes that they be subject to affirmative resolution. I cannot see that that would cause the Minister a substantial period of exhaustion. Given his good track record in these matters, I do not think that it presents him with any problem at all.

We come back to whether our Delegated Powers and Regulatory Reform Committee is right in saying that this will be a strictly technical area. I would not have moved this amendment if I could agree with that 100 per cent and accept it as fact. I think that we are dealing with what could be a highly complicated area. The large number of changes that will be made as we move from one terminology to the other could have unintended consequences, which is why I proposed this amendment—and, presumably, is why the whole of the Liberal Democrat Party voted for an identical amendment in the other place. I am not aware of any Liberal Democrat in the other place who supported the Government. They all voted for this amendment—and I agree with them. However, what I do not agree with is the noble Lord, Lord Wallace of Saltaire, accusing me of playing games. He said that he was not interested in playing games with the Opposition. I tell him that this is not a game: it is a serious issue. It is all about parliamentary accountability. On many occasions, I have supported his noble friends who have proposed identical amendments on moving from the negative to the affirmative resolution procedure, and I will do so again. However, I do not regard it as a game. I regard it as serious parliamentary politics; holding the Government to account.

I know that the noble Lord is only following what the noble Lord, Lord McNally, said the other day when he accused me of setting elephant traps. Well, I have news for him. This is not so much an elephant trap as a mousetrap. I am in the presence of the noble Lord, Lord Willoughby de Broke, who owns St Martin’s Theatre, where “The Mousetrap” is the longest running show in town. So far as concerns this amendment, I will tell you whodunit—they done it! The Liberal Democrats did it in another place—they supported it and voted for it. I reckon that they are in danger of becoming the longest running farce in Westminster. We shall now see what they do and judge them accordingly. I wish to test the opinion of the House.

8.12 pm

On Question, Whether the said amendment (No. 131) shall be agreed to?

Their Lordships divided: Contents, 53; Not-Contents, 112.

Division No. 2


Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Attlee, E.
Blackwell, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Burnett, L.
Byford, B.
Carnegy of Lour, B.
Cathcart, E.
Cope of Berkeley, L.
Craigavon, V.
De Mauley, L.

19 May 2008 : Column 1322

Dixon-Smith, L.
Fookes, B.
Gardner of Parkes, B.
Glentoran, L.
Goodlad, L.
Greenway, L.
Henley, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Jopling, L.
Kingsland, L.
Lawson of Blaby, L.
Lindsay, E.
Liverpool, E.
Luke, L.
Lyell, L.
Mancroft, L.
Mawhinney, L.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Neill of Bladen, L.
Noakes, B.
Northesk, E.
O'Cathain, B.
Pearson of Rannoch, L.
Seccombe, B. [Teller]
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