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Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Stoddart of Swindon, L.
Trenchard, V.
Waddington, L.
Wade of Chorlton, L.
Wilcox, B.
Willoughby de Broke, L.


Adams of Craigielea, B.
Addington, L.
Adonis, L.
Afshar, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barker, B.
Bassam of Brighton, L.
Bilston, L.
Borrie, L.
Bradley, L.
Brennan, L.
Carter of Coles, L.
Chandos, V.
Chester, Bp.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Cotter, L.
Crawley, B.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
D'Souza, B.
Dubs, L.
Dykes, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Fearn, L.
Foster of Bishop Auckland, L.
Gale, B.
Golding, B.
Goodhart, L.
Graham of Edmonton, L.
Greaves, L.
Hamwee, B.
Harrison, L.
Haskel, L.
Haworth, L.
Hollis of Heigham, B.
Howe of Idlicote, B.
Howells of St. Davids, B.
Hoyle, L.
Jay of Ewelme, L.
Jones, L.
Judd, L.
Kinnock, L.
Kirkwood of Kirkhope, L.
Layard, L.
Lea of Crondall, L.
Lee of Trafford, L.
Lipsey, L.
Livsey of Talgarth, L.
Lofthouse of Pontefract, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
McNally, L.
Maxton, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Yardley, B.
Oakeshott of Seagrove Bay, L.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Bradford, L.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Roberts of Llandudno, L.
Rogan, L.
Rooker, L.
Roper, L.
Rosser, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sewel, L.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Steel of Aikwood, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tugendhat, L.
Tunnicliffe, L.

19 May 2008 : Column 1323

Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
West of Spithead, L.
Whitty, L.
Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.

8.23 pm

Clause 3 agreed to.

The Schedule [Changes of Terminology]:

[Amendments Nos. 132 to 135 had been withdrawn from the Marshalled List.]

The Schedule agreed to.

Clause 6 [Parliamentary control of decisions]:

Lord Howell of Guildford moved Amendment No. 136:

The noble Lord said: We now pass swiftly to Clause 6, which is a long clause, and in doing so I note that we are making good progress in a very complex area. Therefore, we need to focus on the most crucial issues which cause the most concern, and this is one of them.

The amendment should gain the support of most liberally minded people, but what I say next, I say more in hope than from experience. I hope that the Liberal Democrat Party will support the amendment, as it did with vigour in the other place. In the words of its spokesman, the eloquent Mr Davey:

that is, my colleague Mr William Hague—

No doubt we will learn later that something has changed, although we do not quite understand what. It seems to be pretty straightforward that parliamentary control is parliamentary control and belief in it is belief in it, but no doubt some contortions will be devised to tell us different. Even so, it is sad that we cannot rely on those of a liberal slant of mind to support what is clearly both liberal and democratic and in favour of the good parliamentarian’s cause.

These areas, as Mr Davey describes them—the so-called passerelle or ratchet provisions—are of widespread concern because they provide prominently and precisely for the treaty to be self-amending and therefore obviously, in the case of any such self-amendments, to reduce the powers of member states and national parliaments, perhaps not unilaterally but by methods which do not necessarily embrace parliaments sufficiently. They could do so on a substantial scale.

I note in passing that the words here are identical to the words in the rejected constitutional treaty, as are almost all the words in this treaty. When they first appeared, they were strongly opposed by Ministers, and it verges on the insulting to be told again and again that they are not the same words when they patently are. The Government have a lot more explaining to do to try to sustain their weak case that all this is somehow different from what went before. Jack Straw,

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the Secretary of State for Justice, when he was Secretary of State for Foreign and Commonwealth Affairs warned starkly how late at night at a European Council some concession could be easily traded for a concession on moving from unanimity to QMV and said that that was not acceptable. Mr Denis MacShane MP, as he passed colourfully through his Foreign and Commonwealth Office ministerial role, added:

Nor does it. Most noble Lords know that. It certainly invalidates the misleading claims by the Prime Minister that the Lisbon treaty marks the end of a period of EU institutional change. On the contrary, if passed, it would mark the beginning of a process of institutional change by the self-amending process and by the clear reading of comments being made throughout Europe that more institutional changes and integration are needed. Indeed, there is even some talk of the next round of treaty-making on top of this treaty, which will have its own internal momentum. Looking ahead, we could be in for a substantial volume of further change rather than a settled period without institutional change. It could change the position quite radically, even on common foreign and security policy, over and above the fact that there are 11 areas where QMV already intrudes in foreign-policy issues as proposed in the treaty, despite Ministers’ constant assurances to the contrary.

The Government were obviously worried about this and about safeguards. Their worry is reflected in Clause 6, which provides that a motion must be approved by both Houses before Ministers go along with the passerelle self-amending procedure—the new simplified revision process. Our contention behind the amendment is that that is not nearly enough. A treaty change which plainly transfers powers away from our Parliament requires not just a motion in the two Houses but an Act of Parliament. We are not the only ones who say that. The Commons Foreign Affairs Committee—an excellent committee I had some connection with in the past—recommended, in a very thorough review, that all treaty changes under passerelle procedure should be the subject of primary legislation. Is it to be pushed aside as just another committee—“never mind about it”? Incidentally, I notice that our own EU Committee in your Lordships’ House seemed rather more content with the proposal that there should be a mere motion in both Houses. But the Foreign Affairs Committee of the other place is a powerful and respected Committee and carries enormous weight. I do not think its very firm, unqualified proposition that primary legislation is needed in this area can just be disregarded.

8.30 pm

The Foreign Affairs Committee is right and the present Minister of Justice—the former Foreign Secretary—is right. It is ridiculous that the powers of our nation and our Parliament should be curtailed further. They obviously would be curtailed one evening on a whipped vote, on a wide range of issues such as visas, family law, police co-operation, the right of police to operate in other countries, the EU financial framework—an enormous area—and a possibility of

19 May 2008 : Column 1325

changing the rules involving CFSP as well. It cannot be right that all that should be done without Acts of Parliament. Everyone opposing the Government in the other place—all the opposition parties—knew that it could not be right, whatever the changed conditions and whatever some people may conclude.

This is just an amendment which seeks to correct that situation. It does not alter the treaty. No one can say this is wrecking the treaty. It does not touch the treaty; it is concerned with our own affairs. It does not alter what has been agreed in the Lisbon treaty, but it strengthens our democracy. This is a time when it needs strengthening and, for those reasons, I beg to move.

The Deputy Chairman of Committees (Lord Haskel): I have to inform your Lordships that if Amendment No. 136 is agreed, I cannot call Amendment No. 136A because they are alternatives.

Lord Roper: I agree with the noble Lord, Lord Howell—this group of amendments is extremely important. The European Union Committee has considered these matters and in the absence of its chairman—the noble Lord, Lord Grenfell—has asked me to say that it did report on them in paragraphs 315 and 316. It is rather important to look at the position of your Lordships’ House as far as the present situation is concerned alongside the situation at an earlier stage and in the legislation which was prepared to be put forward for the constitutional treaty. On that occasion the powers of the House of Lords were extremely limited. When the Prime Minister returned from the discussions on this treaty, he initially suggested that it would be for only the House of Commons to agree or not agree the use of a passerelle. It was only following questioning within your Lordships’ committee that the Minister, Mr Murphy, responded. When the Bill appeared for the first time, the House of Lords was given an equivalent power in this matter. Therefore, I think that the first thing to say is that there is a significant increase in the position of the House of Lords as far as this is concerned, compared with earlier proposals.

The second thing that your Lordships need to consider is that any proposal to use the passerelle procedure to carry a small alteration to the treaty would be by means of a European Union instrument, which would necessarily have to go through the scrutiny process of your Lordships’ European Union Committee. I cannot say what the committee would do in those circumstances, but it is not implausible that it would wish to have an inquiry into any attempt to change the provisions of the treaty, and would wish to make a report to this House. The idea that the parliamentary procedure that would occur if the passerelle were to be used would be that of a normal statutory instrument, which under a convention goes through this House without opposition, is something of an exaggeration.

I would be grateful if the Minister, in replying to this debate, would let the Committee know how the Government see the role of the two Houses in their consideration of orders to implement the use of a passerelle. I do not believe that the normal conventions

19 May 2008 : Column 1326

on the application of statutory instruments would apply. Before we come to make a decision on this amendment and before we have to face the challenge posed by the noble Lord, Lord Howell, about whether we accept some of the things that our colleagues have said in the House of Commons, I would like to discover how the Government envisage that such an instrument would be considered in this House.

Lord Neill of Bladen: I have a question for the noble Lord. Where do we find in paragraphs 3.15 and 3.16 the mind of that committee being focused on the alternatives? One is enactment by primary legislation in this House and the other is by approval, which can be through a motion before the Houses. However, I may be doing the committee an injustice, as I have had only a short time to look at the two passages that he cited.

Lord Roper: The committee was considering the proposals that had already been made in the Bill, which related not to primary legislation but to a decision on an instrument that would come before the House.

Lord Willoughby de Broke: With the leave of the Committee, it may be convenient for me to speak to Amendment No. 150, which deals with parliamentary control, although it is grouped separately on the groupings list. If that is in order, I should like to make a few remarks on it.

The purpose of the amendment in my name and the names of my noble friend Lord Pearson and the noble Lord, Lord Stoddart of Swindon, is to put flesh on the bones of the spurious claim that the Lisbon treaty gives more powers to national parliaments. Our amendment would require Ministers, before they cement their negotiating position on any proposed EU law, to get approval from a Joint Committee of both Houses and/or from both Houses of Parliament. Should the Joint Committee wish, it may refer matters to debate in both Houses.

Let me remind the Committee why I say that the claim that the Lisbon treaty gives or returns powers to national parliaments is entirely bogus. Under the terms of the two protocols in the treaty, which I believe that the Minister confirmed the other day are binding, parliaments will have the right to consider whether Commission proposals are compliant with subsidiarity. Parliaments have eight weeks to consider Commission proposals, which is a marginal improvement over the six weeks that were proposed in the constitution. I suppose that you could call it an improvement, but it is not worth arguing about; as Dr Johnson would say, it is like arguing the difference between a louse and a flea. If one-third of the 27 national parliaments consider that there has been no such compliance, it may be sent back to the Commission, which can simply decide to maintain its proposal if it wishes. How can that possibly be interpreted as strengthening the role of national parliaments? It does not.

Under Protocol 2, a simple majority of all national parliaments—14 in this case—may require the Commission to review a proposal. Again, the Commission

19 May 2008 : Column 1327

may decide to override national parliaments. Its reasons for doing so would have to be put to the Council of Ministers and the European Parliament, and a majority of those august bodies may then decide whether to support the parliaments. Those are very high hurdles indeed and, again, simply cannot realistically be described as giving more powers back to national parliaments. You can argue—as I would—that such proposals are actively damaging. They give the appearance of accountability without the substance.

The problem is that our own system of scrutinising parliamentary legislation in this country is not satisfactory either. We have the European Union Scrutiny Committee in the other place, or our own EU Select Committee. The only power that either of these committees has is that of scrutiny reserve. In theory this means that they can ask the Government not to approve EU legislation until it has been debated in Parliament. This simply has not worked very well, has it? The problem is not only the amount of legislation or the limited powers of the EU committees, but the propensity of Governments to use the scrutiny override reserve and proceed to legislate without either House of Parliament having had a chance to debate it or, indeed, often to scrutinise it properly.

Since 2001 the Government have used the scrutiny override 346 times. In 2005 alone, it was used 52 times in the European Union Scrutiny Committee and 28 times in the Select Committee of your Lordships’ House. I asked a question about that last summer and the noble Baroness, Lady Royall, who answered for the Government then, denied that there was any gap in European scrutiny. She said that the Government,

I am not sure how that answers the question. Merely writing to the chairman is not a particularly strong measure and does not answer the concerns that have been expressed in the Chamber this evening and earlier about the powers of Parliament to monitor, scrutinise and debate European legislation before it comes into force. The reality, I am afraid, is that EU proposals can become law without being properly scrutinised. For example, again in 2005, rather astonishingly, the EU produced 1,691 pieces of legislation, be they regulations, directives or decisions. Those passed into UK law without full scrutiny or, in some cases, any scrutiny at all. That really is quite astonishing.

Our amendments would mean that the scrutiny process is much stronger and more accountable than the current system. It would include both Houses of Parliament and require parliamentary approval of ministerial positions. It would be much harder for Ministers to override, and would mean that Parliament would control the position of Ministers in EU negotiations. Going back to my question last summer and today’s debate, I was happy to see that I got a little support from the noble Lord, Lord Wallace of Saltaire, who said:

Again, tonight, the noble Lord, Lord Wallace, in reply to the noble Lord, Lord Hunt, said that he was deeply committed to parliamentary scrutiny of EU legislation. So I hope that I can count on the support of the Liberal Democrats. I beg to move.

8.45 pm

Lord Williamson of Horton: I agree with the noble Lord, Lord Howell of Guildford, that these are important provisions on the footbridges, which your francophone Lordships continue to refer to as passerelles. Footbridges are important because they enable you to cross the line. In this Bill, they are important because we are dealing with clauses which have been inserted by the Government that are additional to the simple insertion of the treaty provisions into the European Communities Act; that is, they are important enough to require special clauses. They are also important because they go beyond earlier treaties. The two general amending provisions to simplify revision procedure so that things could be changed without an intergovernmental conference—they are in Article 1(56) of the treaty—go beyond previous treaties and legislation. It is also extremely important that what the Government have proposed should be adequate to ensure that we do not get an unwanted crossing of a line, which is sometimes described as creep in the provisions of European Union legislation.

The Government have at least two forms of blockage on the potential use of these articles. The first is that unanimity, which has not been mentioned but is very important, applies, so that the British position can be protected. Secondly, there is the parliamentary procedure which we are discussing. Whether it is sufficient to have a Motion moved in the House, and each House agreeing to that Motion without amendment, is a matter of judgment. This is an important issue and I believe that the Government have put sufficient belt and braces in the Bill. If we are not satisfied, we are running some risk with these, what I shall continue to call, footbridge provisions, and not classify myself for the moment as a francophone Lord.

Lord Owen: This is an extremely important amendment. I refer particularly to Amendment No. 136A, which I imagine is the amendment on which we may or may not vote. I cannot imagine a more important amendment among those on which we will vote. This will last for at least a decade. It is unlikely that we will get such major European Union legislation short of that.

It seems that there is a real problem for Members of this House and, particularly, for Members of the House of Commons. We consistently move forward with greater European integration against the will of the British people. We can argue about particular opinion polls at particular times, but there is a steady opposition to what we are doing in Parliament, which has been going on, I would say, since the early 1980s, which is a long time for Parliament to be in opposition

19 May 2008 : Column 1329

to sustained public opinion. Probably, there is no other issue on which Parliament has chosen to be against public opinion apart from the death penalty.

As this legislation goes through, we need to be very careful. I note that the leader of the Opposition said in a speech the other day that these European questions were sixth or seventh in lists of priorities. That may be true in a straight question to people, but opinion polls often do not gauge the deeper issues. In my view, many people in this country judged that the present Prime Minister had a good instinct on the European question—he demonstrated that over the euro, when he was Chancellor of the Exchequer—but he is in grave danger of losing that. I believe that is an important, deep issue on which people assess both individuals and political parties.

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