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The noble Lord has different statistics. I was going to suggest that I write formally on this point because it is important. His concern that the committees have the opportunity to scrutinise properly is valid, and we need to take it seriously.

Lord Pearson of Rannoch: The Government’s figures give us 187 overrides in both Houses in the past three years, but it would be good to have the noble Baroness reconfirm that.

Baroness Ashton of Upholland: That is why I said to the noble Lord, Lord Willoughby de Broke, that I want to check that because figures get moved around, and we need to be clear. I was trying to demonstrate that scrutiny overrides are quite rare. My experience of them is that they are rare, but they happen. I accept that they happen. It is important, particularly as we look further at the implementation of the treaty, that we are clear about the issues and concerns that noble Lords have raised. The proposal that the Government have put forward is a simpler, better and more efficient process than an Act of Parliament. It makes sure that the Minister is bound by what Parliament says and that the process under which Ministers are bound is a new and rigorous process that involves not only the committees but also the opportunity to deal with issues on the Floor of both Houses. It is a process that noble Lords should welcome because it is the first time such a process has been put in place. It is a process to be used rarely, but it could be used in the UK’s interest. I hope that noble Lords will feel able to support it and that the noble Lord will withdraw his amendment.

Lord Howell of Guildford: My Lords, it is a pity, but perhaps inevitable, that we have been debating such a crucial matter through the dinner hour. No doubt your Lordships’ minds are turning to other things. The significance of this cannot be overestimated. I stand astonished that the noble Baroness the Lord President has been to Peru and back since we last debated these issues. I admire her stamina. I see why Ministers were talking about being exhausted. Most of Peru is 12,000 feet high and there are considerable breathing difficulties when you get there. It sometimes seems to me, listening to the Government’s arguments, that some of them are 12,000 feet high as well. They certainly give me some breathing difficulties.

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The tone of the Government’s arguments, and of their supporters and apologists, has been that they cannot really imagine that this passerelle procedure will ever be used in a difficult and awkward way. They say that it has never happened in the past—there have been passerelles in previous treaties, it is perfectly true. In the words of the noble Baroness, it is all extremely unlikely. I want to get this exactly right; I wrote it down. The noble Lord, Lord Wallace, said that it may never be used—he used the word “never”; noble Lords can check that in Hansard. That is a tricky word in this sort of context. I advise him and others who go into the “never” mode—

Lord Wallace of Saltaire: I wish to confirm that I did indeed say “may never”. The noble Lord will remember as he was a member of the Government in 1986 who passed the first Act that introduced a similar clause to this. It has not been used very often since then. The Conservative Government had their own very good reasons for including this in the Single European Act in the British national interest. It has not been used very often. We are in a different European Union with 27 members than we were then with 12, but it is unlikely to be used very often.

Lord Howell of Guildford: The previous passerelles were not similar to the one here because the treaty will collapse the Third and Second Pillars into the First Pillar. The noble Lord used the words, “may never be used”. Even so, the “never” is not advisable. I advise him and others who think in that mode to read this very fashionable book, The Black Swan, the theme of which is that surprises always occur—that things that are not predicted, not in trend and not extrapolated and do not fit the averages always happen and shape the future far more significantly than normal processes. If he does not like that—it is a very good read—he might recall the adage of my noble friend Lady Thatcher, the former Prime Minister, that the unexpected always happens. Either way, we should be foolish as a legislative Chamber and as a Parliament to assume that because these things have not been used very much in the past and because this is similar in name to previous treaty provisions—although it is not similar in its extent and scope; it is much larger—they may never be used in the future. We should provide that it should be so.

Lord Dykes: Does the noble Lord accept the view of his former senior colleague in government in the other place, Kenneth Clarke, speaking in the debate on the Bill in the Commons at a similar stage? He referred to Mr Heathcoat-Amory’s comments that the passerelles had been in existence before:

Lord Howell of Guildford: The comments that I have just made rather apply. I agree with my right honourable friend in the other place, who once served

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as my Parliamentary Under-Secretary and is an excellent fellow, when he said—I paraphrase—“Everyone but a fool knows perfectly well that this is word for word the same treaty as the previous one”. However, on this matter, I think that he is falling into the same trap. He, too, should read The Black Swan. The assumption that just because things have not happened, they will not happen is very tricky and produces a lot of surprises. I predict that this measure will be used and will produce—for some people, although not for me—all sorts of surprises. The unexpected always happens.

We come to the heart of the matter. The noble Lord, Lord Roper, who is very wise and informed in these fields, said that more than the normal convention would apply under the proposal in the Bill that there should be a Motion before both Houses. The noble Baroness spoke in detail about that. Apparently, this will all be different. She says that there is a new power and that the process will be simpler and better. All that is very interesting, but I think that we need to hear a lot more about it before we are through. It is very interesting that a new power is to be produced to cope with these unfamiliar situations.

I was surprised to hear about the detail that has apparently already been gone into and the advice of parliamentary draftsmen that this is a new power. Perhaps I should not have been surprised, but I was. Indeed, it raises a whole series of new questions. Parliamentary procedure both here and in the other place evolves and changes from time to time. It is always debated closely, because if the procedure is too loose all sorts of things can get through. We need to be very clear about all this.

The noble Lord, Lord Owen, spoke with dazzling clarity, as he nearly always does. He reminded us that the “legislative factory”, as he rather dismissively called the great other parliamentary Chamber, is not very popular and is not greatly admired for its sausage-machine activities in churning out legislation. He said that it is even less admired for the fact that a great deal of that legislation appears to be poorly scrutinised and for the fact that its Members appear to go to bed earlier than we did in our day, although he rightly warned me against the dinosaur argument that things were better in the past.

However, there is no doubt that there is no popularity in the other place or your Lordships’ House being too cavalier in letting legislation go through by this or that Motion and this or that whipped vote. Most people in this country seem to want a referendum, although we shall come to that in our debates both tomorrow and later on. The vast majority—86 per cent, according to the latest ICM poll—want a referendum. We need to be very careful, without subordinating ourselves to public opinion—we need to give leadership and experience where we can—about flying in the face of such a massive majority of people, who for a long time have wanted things to be other than Parliament appears inclined to agree to at present.

We then came to what one might call the middle-of-the-night syndrome. I was interested in the intervention that the noble Baroness made to reject the worries of the noble Lord, Lord Owen. However, I could not

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then understand what the Secretary of State for Justice, Jack Straw, was talking about when he said as Foreign Secretary that,

Of course the very fact that he said that indicates that that sort of thing goes on. I recall—I am sure that I am hopelessly out of date—that when I attended Industry and Energy Councils decades ago a great deal went on late at night and a great many pressures were exerted and trades and deals were done. If the Ministers came to a trading situation in the middle of the night, where it was raised that something might be moved from unanimity to QMV, could they act and then come back to the House of Commons, where we would ask for an Act of Parliament to validate it, and the Government would ask for a Motion of novel procedures? I am not sure whether they could act or would have to say that they could not even enter into the discussion until they had gone home and got a view from the other place. Perhaps we can clear this up at a later stage in our discussions. I am not totally clear on this procedure.

The time is pressing on. We have covered a good deal of ground this evening, largely by leaping swiftly from clause to clause. These are vastly important subjects; we are talking about treaty changes. They may be small, but they are treaty changes. These are things for which the party of the noble Lord, Lord Roper, voted in the name of parliamentary accountability and improved parliamentary control. These are not, as the noble Lord, Lord Wallace, suggested in an earlier debate, games. It is not, as the noble Lord, Lord McNally, keeps suggesting, an elephant trap. This party does not believe in trapping elephants. The comparison of elephants to the Liberal Democrats is not a happy one. After all, elephants never forget, whereas the Liberal Democrats seem to forget their policy every 10 minutes. Because of this talk of new powers, we have opened up a whole new area of questioning and issues of vast importance for the future. Something will happen and the more I hear that it will not, or is unlikely, or may never be used, the more certain I am that these matters will occur in the future. Those of us who fail to make provision will have been, as it were, the unwise virgins who failed to prepare for what is certainly going to happen, and will be very much criticised. That is why we need to return to this matter and that is why, for the moment, and clearly on those understandings, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 136A not moved.]

[Amendments Nos. 137 to 139 had been withdrawn from the Marshalled List.]

[Amendments Nos. 140 to 144 not moved.]

Lord Bach: My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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