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We are discussing something here that the noble Lord who just spoke may not fully appreciate, although he was a distinguished civil servant. Yet if I took him back to his early days of membership of the Civil Service, I suspect that he, at least in another place, spent some time in the Box late at night while listening to debates. It is a fact of parliamentary experience that the power of delay—the powers to keep Ministers up into the small hours of the morning, and to use every legitimate purpose to delay legislation—has been, over the centuries, a crucial power of the House of Commons. It also does not require a great constitutional expert to look at the present House of Commons and watch what has happened when its so-called reforms have taken place. Night after night, I pass by and look up instinctively to Big Ben to see whether the light is there and the House is still sitting. Night after night, I notice that it is no longer sitting. I listen to all of those speeches about parliamentary reform and the value of Select Committees, and I ask myself: what is happening in Parliament? I look at the legislation: a factory of it goes through, day after day. Nobody has seen more legislation than the Home Office, it appears, and what is the end result of that process?

I sat in Parliament within a large majority. In 1966 to 1970 we had a majority of over 90, and we could get most of the legislation that we wanted through. Even then, however, there were great debates about using the guillotine. When that was introduced, it was considered something that one used rarely—knowing full well that there would be a sustained public row and that the newspapers would almost always be against it. You would hesitate before you did it. Now, we see Bills timetabled from the start, with no need for rows about the guillotine. That factory down the Corridor continues to spout out legislation after legislation, which also contributes to the public mood of disillusion with politics. There are many factors behind that; I do not claim that Europe is No. 1, or even that the legislative factory down the Corridor is No. 2. There are other reasons, with which we are clearly familiar, including those connected with corruption.

What that all means is that this Committee has an opportunity tonight to try and restore the normal way of holding a Government to account, which is through primary legislation. It is not as if that is without precedent. I have mentioned this before: I do so again. On the statute book, in the European Assembly Elections

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Act 1978, which has since been absorbed into other legislation, there is a provision that no increase in the powers of the European Parliament can be made or agreed to in Europe by any Minister at any time without their coming back and having primary legislation in this House. With respect to the noble Lord, Lord Williamson, many Foreign Office officials argued that it was impossible to put that parliamentary brake in process; it was considered impossible to do.

The noble Lord may well remember the arguments that took place about that legislation. It was largely due to the spirit of a female lawyer in the Foreign Office, who insisted that we did have the right to do this, that we proposed to do it. It was a crucial element in the letter of the then Prime Minister to the Labour Party aimed at getting people behind the decision of the referendum and to carry through a more positive attitude. I refer to the 1977 Labour Party annual meeting and the letter of Jim Callaghan to the chairman of the party on the eve of the conference. It was an indication that, despite the commitment in the 1972 legislation, we could use parliamentary procedure as a brake if both Houses of Parliament decided to do so.

It is a welcome change that the Prime Minister has suggested that the passerelle clauses should have to go before both Houses of Parliament. I accept the valuable interjection of the noble Lord who explained that initially it was not the intention for them to go through this House. It is certainly right that they should go through both Houses of Parliament but this is not enough. I know the noble Lord very well—he was Chief Whip under my leadership for a while—and he knows the procedures of the other place better than anyone. He knows that one vote held on one occasion in the House of Commons is as nothing compared with a series of votes held on primary legislation.

Lord Roper: I find a possible contradiction in the noble Lord’s argument, which is otherwise rather powerful. If all primary legislation in the other place is now timetabled, the value of primary legislation is a great deal less than he is now arguing.

Lord Owen: I quite agree. And because it is timetabled it is less onerous to ask the Government to accept that it should be primary legislation. I accept that it is certainly weaker. But it could be argued that they have now controlled the process to some extent and there do not have to be guillotines. Far from weakening my case, I think it strengthens it.

I wonder what the Liberal Democrats’ position will be on this. As I understand it, when this matter came to a vote in the other place, Liberal MPs voted in favour of it being in primary legislation. The little debate that we had earlier today was one thing—I did not bother to vote; I vote so rarely that I am not going to vote on trivial matters—but this is another. The arguments used in that debate, about questions of judgment, cannot be used in this one. This is a substantive and important debate. I am very pleased to see the leader of the Liberal Democrats in his place, because he played an important part in the drafting of the letter of the Prime Minister in 1977. He will remember the importance that was attached to the power we gave Parliament to curb any increase in powers in the European Parliament.

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Having made the case for at least occasionally using the full parliamentary brake of legislation, we must ask whether the passerelle clauses represent something substantial. That is the issue that we have to discuss. There is no question—no one seems to have denied it; indeed it has been used as the Government’s reason for giving a single vote in both Houses on this issue—but that you could in some circumstances, as it would require unanimity, move to a vote for qualified majority voting in foreign policy. Imagine a situation where, seven years on, no one political party has an outright majority in the other place and we have, say, a Labour-Liberal Democrat coalition. The issue of moving to a qualified majority vote comes up in the European Council and the Prime Minister of the day—I will not say which political party he comes from—comes back, having made a decision in the middle of the night, to go along with the majority and have qualified majority voting. Do people understand that in that circumstance, the only check is going to be a single vote in the Houses of Parliament? I would argue that it is a fundamentally important decision, the decision above all which would influence whether integration was fully achieved or the rather ambivalent European organisation we have at the moment remained.

9 pm

Lord Howell of Guildford: I thank the noble Lord for allowing me to intervene in his excellent exposition. I understand that the vote that he is talking about in the other place now often takes place under a deferred division procedure, which means the actual vote may be on days when most of the people who heard the debate are not even there.

Lord Owen: It is not for me to go into too much detail on what is or is not reform in the other place. I am very conscious of the fact that, as you get older, you always think everything that happened in your time was much better than it is at present. In my family when my children were younger and I started reminiscing about how much better things used to be, they would quote from the Monty Python sketch and say, “I worked 27 hours a day”. It would end with a collapse of stout party and I would not be able to resume my case. I am not sure any noble Lord would intervene in that way, but in case they might be tempted, I will not follow the noble Lord down the path of discussing what should or should not be reform in the House of Commons. That time has long since passed for me.

Baroness Ashton of Upholland: I am grateful to the noble Lord. I wanted to clarify that no Minister in the middle of the night could agree to anything. What is proposed by the Government in the Bill is that the vote would have to take place before the Minister could signify support or opposition in any form, whether by nodding their head, voting or abstaining. The noble Lord needs to be aware of that.

Lord Owen: I am afraid the noble Baroness did not quite hear what I was saying. I said that in the middle of the night the Prime Minister may succumb in the

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European Council to a decision for a unanimous vote. The legislation that is passed will be subject to a vote in both Houses of Parliament, but once that decision is taken by the Prime Minister—and it is usually in the small hours of the morning—

Baroness Ashton of Upholland: I want to be absolutely clear. The Prime Minister or any other Minister could not make that decision in the middle of the night. The requirement on them is that, before they can signify support or otherwise for any proposal under the passerelles, they must have already had the vote and debate in Parliament. They simply cannot do what the noble Lord proposes.

Lord Owen: I am afraid the noble Baroness shows how little time she has spent in the small hours negotiating in the European Union. The European Union makes decisions by unanimity in the European Council in many diverse ways, quite often not actually in the Chamber. It is usually a case of three or four people who are having difficulty with a particular issue being called into the president’s room where they make the decision on whether they are going to vote unanimously—this is in terms of their own collegiate decision—and whether another person will make a deal. That is the nature of the animal and I personally understand it. It is a continuous negotiation. Votes are negotiated over and concessions are made in one area quite removed from another. In a situation like this, even seven years on under the complex circumstances in which I am considering the question, most British Prime Ministers would be reluctant to go to qualified majority voting. But the argument will be made: “It doesn’t make very much difference. Only just a little bit further. Not many more. We’ve already made this concession in some areas”. Then a great prize will be offered to them. They will perhaps be told, as we saw only a few months ago, that a new reform will be offered on the common agricultural policy—which you can be sure will be in exactly the same position seven years on. A few more spectacular inducements will be put before them. That is the way that it happens, and they make that decision. It is the only decision that really matters. It is an agreement between individuals that they will do something if the others agree to do likewise.

Then they have to come back to the House of Commons and put it to the vote, but does one think that it will be a free vote? It will be said that the Prime Minister has given his word on this issue and that this is a matter of confidence in the Government. It will be argued, “If you don’t do this, there will be some disadvantage”, because some commitment will perhaps have been given that will bring jobs to some constituency. And so up will get some MP in the debate who, as part of this wider deal, is able to say, “If the vote does not go through, there will be job losses in my constituency”. We have been through this.

It is sometimes a disadvantage in this Chamber that so many of us have served in another place—in my view, too many of us come from that place—but, every now and then, it brings an air of reality as to how decisions are really taken. Decisions on a matter

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as serious as this are taken as a result of a negotiation between heads of government. When they have made them, they come back. Of course, there was no particular moment when the previous Prime Minister gave assurances to the others that there would be no referendum on the Lisbon treaty, but does anyone believe that he did not make a commitment that there would be no referendum? That was the deal, and he negotiated it. He was not going to give it away unless he got various things and the so-called government red lines. He does not come back and tell everybody, “I’ve made this wider deal”. But we know that that is how decisions are taken inside the European Union.

I shall not call the noble Baroness the Lord President a word beginning with “n”, because I do not believe that it applies to her. However, I believe that, when we have to consider this, we know—and there is certainly nobody of any other party who comes to this Chamber from the House of Commons who does not—that this one vote in the House of Lords and the House of Commons is a democratic and parliamentary brake that is very much inferior to having full legislative authority. I hope that we will eventually return this Bill to the House of Commons with a clause stating that there has to be primary legislation.

Lord Blackwell: I shall intervene only briefly after that powerful speech by the noble Lord, Lord Owen. If the Government reject the amendments, I can only believe that they will do so on the grounds that having primary legislation is too arduous a process. It is because it is a more arduous process that many of us believe that it is the proper democratic control of decisions of this importance.

However, there is another point to this. In those political negotiations in the middle of the night which precede the formal legislative Act of the European Council and which the noble Lord, Lord Owen, described, the fact that the British Prime Minister has a more arduous process to go through may be to our advantage. The UK may not be comfortable with many of the proposals pushed forward by the European Union. The noble Lord described compromises being reached in the middle of the night—we know that all kinds of things are agreed as part of a package—but the stronger the barriers to a British Prime Minister being able to say to his colleagues in Europe, “I cannot agree to that because I will not be able to get it through the UK Parliament”, the stronger will be the UK’s position in that negotiation. That is another important reason, on top of the UK democratic reasons—which are the most important—for making the process as arduous as possible on decisions of this importance.

Lord Wallace of Saltaire: This debate has ranged widely beyond the exact amendment: we have heard about parliamentary reform and the whole question of parliamentary scrutiny of the EU process as a whole. We are actually discussing important procedural changes, from unanimity to qualified voting on a number of specific issues within an EU of 27 which will in time become an EU of 30 or more. Although those are serious issues, we need to return to the amendment that we are discussing.

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I say to the noble Lord, Lord Owen, that the public mood of disillusionment with politics is not a particularly British phenomenon. It is, as we saw with the French and Dutch referenda campaigns and as we are seeing now with the Irish referendum campaign, a general problem throughout western Europe. It has until the recent presidential election campaign in the United States also been a major problem in the United States. The public have been switched off from participation, distrustful of parliaments and of the US Congress. It is one of the real constraints under which we all operate.

The contradiction is made more acute for all of us by the increasing necessity of international co- operation and international negotiation not only within the EU but within a range of other regional and global institutions and the necessity of making agreements by negotiation within those international institutions which national parliaments find it hard to catch hold of and which national publics do not wish to understand. That is the contradiction with which we are faced.

In terms of parliamentary scrutiny not only of the passerelle but of Community and EU legislation as a whole, if we are going to take an increasing role for national parliaments seriously, the Government will have to help us to play our role more effectively. I take one obvious example: the long Recess between the end of July and the beginning of October. It seems to me self-evident that once the Lisbon treaty is passed, EU committees must meet in early September and if necessary Parliament as a whole must return in early September to do our scrutiny role within the confines of moving necessary collaborative decisions further forward. I hope the Leader of the House will be able to say something about that. Parliamentary scrutiny takes place through the partnership between the two Houses and between the committees and the full Chambers of the two Houses, which is the most effective form of scrutiny.

Lord Pearson of Rannoch: Why does the noble Lord keep promoting parliamentary scrutiny when we have seen that no scrutiny from either the House of Commons or your Lordships’ House has made any difference since the process began? The European Union completely ignores all the committees’ recommendations and we are wholly powerless. What is the point of all this scrutiny until we get the power back?

Lord Wallace of Saltaire: I recognise that the noble Lord, Lord Pearson of Rannoch, views the European Union as a foreign body over which the United Kingdom has no influence. That is not my understanding of the European Union, in which the British Government and British politicians, when they are effective, have influence. I have to say that I am not sure that the current British Government have a coherent European Union policy. However, I am rather more confident that the Government have a European policy than that the Conservative Opposition have one. We take part in these negotiations. We often make the proposals that the

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noble Lord, Lord Pearson, then attacks as having been imposed on the poor innocent British people—but that is the narrative that the noble Lord wishes to prefer. The Conservative Front Bench and the noble Lord, Lord Owen, need to be careful not to slip too far towards the UKIP narrative that the United Kingdom will usually find itself in a desperate minority against a continental cabal. That is not usually the case and it ought never to be the case. Effective British negotiators ought to ensure that it is not usually the case.

The question asked here in what is—I hope that noble Lords will agree—a less partisan and more reflective Chamber than the House of Commons is how best to fulfil our scrutiny role. The clauses that we are discussing, and in particular Clause 6, propose a number of new procedures to deal precisely with changes in EU voting procedures in specific areas without treaty amendment. It argues that Ministers will not be able to agree to these until there has been a Motion carried by each House. I trust that the Minister will assure us that, before such Motions are carried, the relevant committees of each House will have had an opportunity to consider the proposals in detail in the circumstances agreed. Those are the sort of assurances that we on these Benches want from the Government before we decide how to respond.

9.15 pm

Lord Owen: The noble Lord praises endlessly the Select Committee approach and the committee procedures, and he may well be justified in that, but in this case the Select Committee on Foreign Affairs of the House of Commons has made a specific recommendation that there should be full legislative procedure.

Lord Wallace of Saltaire: I recognise that. The noble Lord, Lord Howell, preferring on this occasion the Commons to the Lords committee—we all quote the committee that we prefer—made that particular proposal. We are talking about specific decisions in specific and confined areas in which there may be proposals to move from unanimity to qualified majority voting. As we move from an EU of 27 to an EU of 30 and more, there may on occasions be a case for making such decisions. I have heard many people in Brussels argue that the passerelle clause is likely never to be used, so it is possible that we are having an enormous argument about something that will actually never be carried into practice. The question for us to consider is whether the proposals made in Clause 6 are adequate or whether they need to have belt and braces added by the full Act of Parliament on each one, as the Conservative amendment proposes. I wait to see how the noble Baroness the Leader of the House can assure us that that will be adequately guaranteed.

Lord Tomlinson: I was not going to intervene in this debate, but I do so briefly, partly to defend my noble friend the Leader of the House from the rather unfair treatment that she received at the hands of the noble Lord, Lord Owen. The noble Lord’s speech was very

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interesting and I certainly enjoyed some of the reminiscences that it brought to mind, but it was dealing in totally different circumstances. The noble Lord should remember, as I occasionally have to, that it is 29 years since he was my boss in the Foreign Office and that in European terms a lot has changed—and changed dramatically—since I was pleased to serve under him in that Labour Government.

When we look at today’s proposals, we are dealing with nine different circumstances in which a passerelle is proposed as a possibility. Without going into every one of the safeguards in each of those nine circumstances, let us at least understand that the primary safeguard in every single case is the requirement of unanimity to the process of change that is being proposed. In most cases there are other locks on the process in addition to the requirement of unanimity. That is not the sort of circumstance that I remember the noble Lord, Lord Owen, went through. Take, for example, fisheries policy, where I know—and I had great sympathy for him—there were times when he had to sit through the night in smoke-filled rooms to get an agreement.

However, that is not the process of decision-making that is now the major challenge to the European Union. It is the sheer fact of having a community of far greater membership with the prospect of more to come, and at least having the opportunity for the overwhelming majority to be able to reach a mechanistic sort of agreement to stop any eccentric member state holding the rest to ransom on something they all want.

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