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I think that the current proposals are eminently sensible. I tend to agree with the noble Lord, Lord Wallace of Saltaire, that they will be used relatively rarely, if at all, as their existence precludes the possibility of one state holding everybody else to ransom. In those circumstances I am totally content with the Bill as it stands. I hope to hear from my noble friend the Leader of the House that she shares my state of contentment.

Lord Tugendhat: I very much agree with what the noble Lord, Lord Tomlinson, has said. I would like to address my remarks largely to the noble Lord, Lord Owen. I agree with his description of how business is done; it is a long time since either he or I were at a Council meeting in Brussels, but I am willing to accept from his description that the way in which business is done has not changed a great deal, although it must now , with so many more members, be much more complicated. He overlooked one crucial point. When he talked about the whole mechanism of confessionals and people being taken to one side and deals being done, and all the rest of it, he was referring to a situation in which the outcome is fluid—in which the Ministers, whether they are heads of state in government or Foreign Ministers or whatever, are not bound by a previous decision. They are people who are in a position to deal.

I attended a great many Council meetings, albeit some while ago, and my experience of them was that if a Minister said that there was no possibility of his

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moving because he was bound by a parliamentary vote, a coalition agreement or something else—perhaps, as in the case of the Danes, by a vote of the very effective Folketing committee—the whole business described by the noble Lord, Lord Owen, did not come into play because the Minister concerned was not in a position to move. Indeed—

Lord Owen: Does the noble Lord agree that exactly that situation confronted the former Prime Minister Tony Blair when he was negotiating this Lisbon treaty? He had a commitment to a referendum on the previous constitution and he could not know what would happen on this particular thing. He was committed by a decision in the general election to have that. That did not stop him making a deal which effectively meant that he committed to not having a referendum on this new Lisbon treaty.

Lord Tugendhat: My Lords, my understanding was that the previous Prime Minister, Tony Blair, volunteered a commitment to a referendum. Therefore, he was bound by what he said and put it in his election manifesto. That is not the same as a Minister having been bound by a vote of the two Houses of Parliament. My clear recollection of Council meetings—the noble Lord, Lord Williamson, has attended many more than I have—is that if a Minister can say that he is under strict instructions from his Parliament, or in the case of the Danes from the Folketing, or in the case of some other countries from a coalition agreement, then the whole business of the confessionals simply does not arise.

The point of the noble Lord, Lord Tomlinson, that we are talking about one brake among several, is also relevant. However, I wanted to take up the battle-hardened memoirs of the noble Lord, Lord Owen, because my battle-hardened memoirs lead me to a slightly different conclusion.

Lord Stoddart of Swindon: My Lords, the noble Lord, Lord Wallace, said in his remarks that the people distrust parliaments. I am not at all sure that that is right. The people distrust powerful political elites and the bureaucracies that support them. They think that Parliament is impotent in the face of those powerful institutions; that is the truth of the matter.

The noble Lord also said that he thought that the passerelles would never be used. If they are never going to be used, what on earth are they in the treaty for?

Lord Wallace of Saltaire: My Lords, I said that I thought it less likely that they would be used. However, the noble Lord, Lord Tomlinson, corrected me by pointing out that the circumstances in which the passerelles were most likely to be used would be, as we are now, in a European Union approaching a membership of 30 where perhaps one of the smaller and newer member states was holding out against a strong consensus. That is the likeliest circumstance. It is not the one that a number of Members of this House are suggesting, in which gallant England stands alone against a wicked Continent.

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Lord Stoddart of Swindon: My Lords, I have never said that we are standing alone against wicked continentals. I do not think that continentals are wicked, although we are perfectly capable of standing on our own; we shall come to an amendment on that later. However, the nuances of the noble Lord’s intervention are rather different from those that came across when he made his speech.

The passerelles, which would normally be in a treaty, should, as proposed in Amendments Nos. 136 and 136A, be agreed by a proper legislative process through a Bill in both Houses of Parliament. That is self-evident. The arguments have been made for that, and I do not wish to prolong the debate on it.

We have not heard much about Amendment No. 150. It should not be in this group of amendments. Since it is, however, I shall say a few words about it. This involves the procedure for parliamentary control of decisions taken, day to day, on a large number of issues. The current situation is not satisfactory. Both Houses get notice of what is proposed, they can discuss it, but the Minister then goes over—

9.30 pm

Lord Roper: I understand that this group includes merely Amendments Nos. 136, 136A, 149 and 151. Amendment No. 150, which I call the Danish pastry, comes rather later.

Lord Willoughby de Broke: I said that with the leave of the Committee I would speak to that amendment as it dealt with the powers of Parliament. I am sorry if the noble Lord missed that.

Lord Stoddart of Swindon: I am obliged to the noble Lord, Lord Willoughby de Broke, for confirming that my understanding of the position was correct. The situation is not satisfactory from a parliamentary point of view. Parliament may make a proposition; it may make suggestions; but it cannot alter decisions that have been reached by the Government. That is simply not good enough. I think the bypass procedure has been used 187 times, so Parliament has been unable to fully discuss the proposal that has been sent to it by the Commission.

The amendment proposes that Ministers should be mandated; in other words, they should not make decisions until both Houses of Parliament have properly discussed the issues and made a decision on them. That is the only way in which a democratic Parliament can work. The present situation is completely undemocratic. Ministers can go to Europe and agree by qualified majority, and our Parliament, which is all I can speak for tonight, will not be able to say yes or no to a decision which often severely affects people in this country. I support the amendment of the noble Lord, Lord Willoughby de Broke, and hope that we shall come to it on Report at a much earlier hour than it is now.

Lord Neill of Bladen: I had not intended to speak to this amendment. We have heard some significant speeches from people with wide experience who have actually sat in various committee rooms into the middle of the night. I have had none of that experience; I am simply

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a Cross-Bencher who knows a little about what the man in the street thinks about the Lisbon treaty and his state of knowledge on its ramifications. Someone said that the passerelle will never be used. We have to proceed on the footing that it may be used, and if so, it will be because of some important piece of business that cannot be transacted within the Union unless the passerelle bridge is crossed. It will be something significant, so I start not from a position of some fantasy that will never happen. It will one day and when it does it will matter.

I come back to what people know. The noble Lord, Lord Williamson, says that he will not use the term “passerelle”; it is good enough for him to talk about a footbridge or a narrow footbridge. Our discussion this evening would be totally unintelligible in almost any room, pub or meeting. No one would have the faintest idea that there was to be a mechanism for increasing the scope of the treaty by this method—even by unanimity. They would think that Lisbon is a done deal and that that is where we are and, if they took enough trouble, they would find out what was in the treaty. This is a route to an extension of that and, as I have suggested, when it is used it will be very important. It is entirely speculative and one could say that there is no basis for this, but I wonder what role the man or woman in the street would want Parliament in Westminster to have if and when that power is used to cross this bridge. Would they want an approval by a single vote one evening in the Commons and another in the Lords, or, as it is something important, would they prefer that it was dealt with by a more rigorous procedure where the matter could be fully debated? That procedure is by Act of Parliament. To me, the obvious answer would be, “We want the best procedure available”. The noble Lord, Lord Wallace of Saltaire, was right to draw attention to the fact that Parliament will have a new role to play—it is an absurdity—for two and a half months. This cannot possibly work if we have issues on subsidiarity, to mention just one example, arising in that time.

If Parliament is going to take a stand and live up to the role that it will be given, why do we not start now? Why do we not insist on a better class of procedure for looking at the invocation of the passerelle? If I have understood correctly the answer of the noble Lord, Lord Roper, to the question that I put earlier, there is nothing on this issue in the report of our impact assessment committee, admirable though it is. I do not think committee members focused—or were asked to focus—on whether this matter of approval in Parliament would be dealt with by an Act of Parliament or by a simple resolution. I do not think that they addressed that; they cannot deal with everything. We are on our own. This Chamber has not had that guidance. We have heard the view of a committee in the House of Commons. I urge noble Lords to adopt the amendment that has been moved.

Baroness Ashton of Upholland: This has been an interesting and stimulating debate on an important subject. Noble Lords have made clear that they consider

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this an important aspect of our deliberations in Committee and I agree.

What is very important is that this is the first time since passerelles—footbridges—came into existence, through the Single European Act of 1986, that Parliament is able to determine whether they should be used. I think that the noble Lord, Lord Neill of Bladen, is correct in looking for a better class of procedure. That is what we have acquired here. Through this legislation, we are giving Parliament the power to veto any use of a defined list of treaty-amending provisions—the passerelles or footbridges. That is extremely important. Many of our deliberations have been about what that ought to look like—whether it should be through Act of Parliament or, as we have proposed, through a vote in both Houses of Parliament. I know that noble Lords, particularly on the Liberal Democrat Benches, are looking for what has changed, in terms of how we think about that scrutiny, from when the Bill left the other place and came here. I will seek to address that.

I am conscious that, many weeks ago, I promised the noble Lord, Lord Tugendhat, that I would make sure that in my discussions on the Lisbon treaty I would be clear about the importance of Europe and the value of the treaty provisions. I think that, in principle, these provisions could be beneficial to the United Kingdom. If we wanted, for example, to make a minor change to the EU’s machinery without recourse to a full-blown intergovernmental conference, this would enable us to do so. We should not see what is proposed in the legislation from an entirely negative viewpoint. I accept that noble Lords are concerned about making sure that we have the right checks and balances. I argue that nowhere is that better done than in your Lordships’ House and in another place. As noble Lords have indicated, from their long experience in the European Union, it is unlikely that this option will be used often. Passerelles to move treaty powers from unanimity to QMV have been around since 1986 and used only once. I think it extremely unlikely that we will see great frequency of use, but the option could be of potential benefit.

Noble Lords have rightly concerned themselves with the role of the Minister, and at what point the Minister should play his role. I had an interesting exchange about that with the noble Lord, Lord Owen. He said that he wanted to use the N-word about me. I thought it was “naughty”, but actually it is “naive”. I do not pretend that I can emulate his experience from 1976 to 1979. What he should and probably does know is that I sat on the Justice and Home Affairs Council for three years and, as noble Lords have been kind enough to note today, I flew in from Peru this morning, where I was at the European Union Latin American/Caribbean conference until last night. Therefore, I pray in aid some experience of negotiations but perhaps not late into the night—the Justice and Home Affairs Council was quite civilised in its deliberations. I recognise that discussions go on between officials and Ministers outside the formal deliberations at the European Council. As noble Lords would expect, that is part and parcel of the system.

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The point that I sought to make but clearly failed to make effectively is a different one. Here, we are proposing that no Minister can enter those deliberations and make any suggestion, positive or negative, until both Houses of Parliament have made it clear what the position should be. The wording that we have put into the legislation is there to capture not just votes but the kind of discussions and manoeuvres that the noble Lord recognises—and smiles at—where a form of assent is given without a formal vote. It is clear from what is in the legislation that that cannot happen in these instances. Until there has been a discussion—

Lord Owen: I—

Baroness Ashton of Upholland: The noble Lord cannot resist interrupting me, so I give way.

Lord Owen: No suggestion? The noble Baroness’s former Prime Minister was committed to a referendum and he told his colleagues that, if they gave way on certain matters and changed the constitutional treaty, he would commit to there being no referendum on the Lisbon treaty. We know that. That is the negotiation that took place in the middle of the night. Of course, he had to come back and win that, and in a way his commitment has been debated today. The present Prime Minister inherited the commitment made by the then Prime Minister, but it was against a commitment that he had already made to the British people that there would be a referendum.

Baroness Ashton of Upholland: However, here we are discussing the passerelles within the treaty under Clause 6. We are saying that, in the context of what is in the legislation, that has nothing to do with what happened in the middle of the night on the previous occasion. We are talking about what would happen if it were proposed that we should move on these footbridges from unanimity to qualified majority voting. We are saying that there would have to be a decision by both Houses of Parliament to give a mandate to the Minister in question to move on that basis. I argue that that is altogether different: it means a positive, improving and important role for Parliament.

Noble Lords have argued that that should be done by Act of Parliament and not by what is proposed; they have veered between saying that Acts of Parliament are absolutely critical and saying that we do not do them very well anyway, particularly in another place. I argue that what matters is that Parliament has appropriate and proper debate, but I do not believe that that is always possible within an Act of Parliament. Clause 6 gives Parliament the opportunity, if it so wishes, to provide the Minister with some flexibility in negotiations—for example, with regard to the date of commencement of a particular provision and so on. Parliament can determine that it does not wish to give that flexibility, while still mandating the Minister, simply by removing Clause 6(3) from the discussion. That possibility would be available to it. If the Minister were given the mandate and some flexibility by an Act of Parliament, we would have to come back and create a new Act of Parliament every time the negotiation

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changed. Alternatively, as noble Lords know—because they sometimes complain about parliamentary discussion of legislation which is too open-ended—there is an argument for saying that what would have to be provided for would be far too open-ended for an Act of Parliament. Therefore, I take the view that what we propose here is much better.

Noble Lords—particularly but not exclusively those on the Liberal Democrat Benches—want to be reassured that what we have proposed and considered since the issue was debated in another place is stronger. I agree completely with the noble Lords, Lord Roper and Lord Wallace, about the value and importance of both committees in terms of scrutiny. That will be essential. I appeared before the EU Select Committee in your Lordships’ House last week to talk about another issue, but we also discussed the need to consider how best to achieve greater scrutiny. I accept that.

More importantly, the conventions that would normally apply to secondary legislation, statutory instruments, and the votes and debates with which noble Lords concern themselves in relation to primary legislation—traditions and conventions that we might not vote against something—do not apply in this context. In the words of the parliamentary counsel whom I consulted this morning, this is a new power. It is different. For the benefit of noble Lords on the Liberal Democrat Benches in particular, and for noble Lords in general, I can confirm that that is where we are. Therefore both Houses of Parliament can consider this fully and properly in the kind of debates that they would wish. The length and timings of debates are for the usual channels and are not within the Government’s gift to veto, alter or change. I hope that that will reassure noble Lords who have been concerned that in moving to this, which they would support in principle, the issue that was of greatest concern, both here and in another place, was how that would be different from the issues and concerns that have normally been raised when looking for votes on the debates in question. I hope that that reassures noble Lords.

Lord Roper: I am most grateful to the noble Baroness. Does she accept that between the original treaty and this legislation the House of Lords will, for the first time, have an opportunity to deal with passerelles, which is a new power, so the normal conventions on dealing with statutory instruments will not apply and this House would be free to reject any such Motion if it thought it appropriate?

Baroness Ashton of Upholland: I can confirm what the noble Lord, Lord Roper, said. This House will be completely at liberty. This is new and different. I hope that that reassures those noble Lords for whom this has been of greatest concern. I was grateful to the noble Lord, Lord Willoughby de Broke, for grouping on the Floor of the House as opposed to degrouping on the Floor of the House, which is the usual experience of Ministers. I am grateful to him and his colleagues who have done a lot of work on trying to condense some of the issues. I pay tribute to them for that.

The amendment deals with whether a Joint Select Committee would be more appropriate than what is being proposed. The noble Lord will not be surprised

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to hear that I disagree with that proposition. In both Houses we have experience of a way of looking at EU legislation that has served us well. I pay particular tribute to this House. The noble Lord was concerned that lots of legislation has been passed without scrutiny. I have checked this, and all proposals for EU legislation passed through the EU scrutiny processes in both Houses. Scrutiny overrides are much rarer than the noble Lord suggested. In 2005, there were 45 overrides. That was an exceptional year because as Parliament was dissolved, there were periods when the committees were not appointed. Parliament was operating, but the committees did not exist. I understand that that played a part in the number of overrides.

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