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One can only assume that those provisions are in the treaty because someone believes that at some stage the European Union might want to decide that it moves these matters from unanimity to QMV; otherwise, why are they in the treaty? We could have struck them

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out. To suggest that such measures should be left to the Executive is a complete denial of parliamentary democracy. It may be that we trust that the Executive would say no and use their veto to stop those matters, but we are not an Executive Government in this county unfettered by Parliament. We are a parliamentary democracy, and our tradition has been that changes of this magnitude should be approved by Parliament. For the noble Lord, Lord McNally, to suggest that it is a huge bureaucratic burden to suggest that Parliament should be asked to approve changes that previously would have required a treaty change would have former liberal parliamentarians turning in their graves.

We must accept that those are significant provisions, which are of the nature of treaty changes. It may be that they are not used in the future, but if they were used and the Government were to agree that those things should be done by QMV in the future and the treaty should be changed in that way, they must be subject to parliamentary control.

Baroness Ashton of Upholland: My Lords, the issue that we are debating is not whether Parliament should have control but the nature of that control. I agree wholeheartedly with the noble Lord that it is important that Parliament should have control, which is why the provision is in the Bill. The issue is the kind of control that is most appropriate in this case. The difficulty that I have with the proposals of the noble Lord, Lord Howell, is that effectively Parliament’s control could be more unwieldy and less effective than what we have set out, which is the requirement for a vote in each House before a Minister is enabled to do anything.

We are clear in the Bill that a Minister of the Crown may not vote in favour of or otherwise support. That closes off the issues that noble Lords would reasonably be concerned about; that by saying nothing or abstaining, somehow a provision could go through on the nod because we have not intervened. Under our provisions, no Minister would be able to do that; they would have to say, “I am sorry, I would have to vote against that proposal because I do not have clarity from Parliament as to its views”. We have a large degree of agreement that Parliament must have a significant voice and a vote. The question is how best to achieve it.

I appreciate the noble Lord, Lord Howell, bringing back the matter, because on the last occasion I said that it was a new power and the noble Lord rightly asked me to explain in greater detail how it would work. I am grateful to him for giving me that opportunity. The noble Lord, Lord McNally, in his remarks and in conversations that I have had with him, has said that he is keen to ensure that we have been clear about Government thinking in order to address the concerns that Liberal Democrats have in other places, as the noble Lord would have in your Lordships’ House.

Let me try to set that out. Significantly, this is a new power because until now Parliament had no control over the passarelles. This point is new; it is something that my right honourable friend the Prime Minister was keen to ensure that we had. It recognises the importance of the Lisbon treaty and of Parliament.

Lord Roper: My Lords, does the noble Baroness agree that there is also a change between the discussions that occurred when we were looking at the constitutional

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treaty and the position that we are looking at now? At the time of the constitutional treaty, only the House of Commons had a right to have a view about these matters, but now we have a provision whereby both Chambers will have a view.

Baroness Ashton of Upholland:the noble Lord is correct. As he would expect, I feel quite strongly about the role of your Lordships’ House and the importance of ensuring that your Lordships have the opportunity to contribute where that is appropriate, as I believe it is here.

As I said, this is a new power. It is a new power because this is a new provision; it is the first time that we have had it. Noble Lords rightly want to challenge and test how it will work bearing in mind the way in which the conventions in your Lordships' House have traditionally operated. By recognising that this is a new power, I am saying that this is a new power where the conventions do not apply. As the noble Lord, Lord Howell, rightly said, this applies to both Houses of Parliament. As I said, this has to involve both Houses of Parliament and not—as the noble Lord, Lord Roper, said—just one. I want to be absolutely clear that if either House of Parliament says no to a Motion, then it will fall. Each House therefore has an effective veto over the use of any passerelle set out in Clause 6. Let me set out the thinking on how we believe it will work.

In practice, a Minister would ask Parliament to agree a Motion to use one of the listed passerelles. We envisage that this would probably be a straightforward yes or no question on whether to use a specific passerelle; for example, whether to move a specific policy area from unanimity to QMV or co-decision. After debate in both Houses, there will, if necessary, be a vote. Of course, it is for your Lordships to decide whether to vote, but we assume that there will be one. In another place, just for completeness, the Motion will be debated under Standing Order 21 which provides for a debate of up to 90 minutes. In your Lordships' House, it is for your Lordships to decide how much time you wish to spend on such a debate. We would expect that debate to be on the Floor of the House. The Government would discuss timing through the usual channels, as noble Lords would expect. At the conclusion of the debate, there will be a vote if a vote is needed. That is in the hands of your Lordships. We would ensure the capacity for there to be such a vote.

Again, for clarity, the usual conventions on statutory instruments will not apply. There is no constraint on your Lordships' House in deciding to give or withhold its approval. I think that that is the most fundamental point raised by the noble Lord, Lord McNally, regarding clarity and why this is different. He is right to say that an evolutionary process has happened here, and I am able to set it out very clearly. I believe that it is a significant difference.

The Bill makes it clear that the Motion has to be agreed without amendment so that we do not have any confusion about what happened, about whether or not it has been unequivocally agreed.

We move on to the subject of Amendment No. 24: the flexibility in the Bill. We have tried in the Bill to provide a little flexibility if Parliament agrees. As

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noble Lords are well aware, there may occasionally be negotiation on the final wording, perhaps on the date from which it is meant to take effect or in relation to the simplified procedure and the precise language of a provision. We have made it clear in the Bill that it is a matter for Parliament to grant flexibility and to decide whether it wishes to allow Ministers flexibility to take advantage of the negotiating process in order to promote the UK's interests. There is no question but that if Parliament wishes to remove any flexibility, it can do so. It may wish to grant flexibility elsewhere.

If the Government seek approval of a Motion with some negotiating flexibility then either House can amend that part of the Motion. Parliament can say yes to the passerelle but no to the flexibility. In answer to the point raised by the noble Lords, Lord Blackwell and Lord Howell, we think that this is a simple, efficient and effective way of requiring and giving Parliament the opportunity to control the passerelles, rather than an Act of Parliament with all that that would entail. If we had the position where we had an Act of Parliament, we might have to keep coming back to Parliament if there were a change, however minor, rather than this procedure which gives effective control to Parliament through a vote of the kind that I have outlined. I understand why a position that says that the conventions of the House would apply would make noble Lords nervous if they felt they were being hamstrung into having to vote. As I have made clear, the Government do not take that view. Quite the opposite; it is for your Lordships to decide.

I have given as clear an explanation as I can of how this would work in practice. We will obviously continue our discussions with the House authorities through the usual channels but that is the Government’s position. On that basis, I hope the noble Lord is able to withdraw his amendment.

Lord Howell of Guildford: My Lords, this has produced a number of new proposals which it will be very interesting to study more carefully. It comes down to a straight division of view as to whether primary legislation is a better curb on changes in the powers of Parliament and changes in treaties, as my noble friend Lord Blackwell said, of potentially a massive kind, or whether this can be done under the kind of procedure the Minister is now describing, which involves some powers but these powers apparently are to be achieved through changes in the Standing Orders of both places. The Minister speaks about SO 21. Probably I am out of date, but I can recall SO 20 and various emergency debates which could be moved under that. Is it now the position that in the other place SO 21 would allow the recommendations of the appropriate Select Committee—I am not sure which it would be—to be treated as matters of urgency and therefore an SO 21 debate would be granted by the Speaker? Is it the Speaker of the other place who has the power to see this process goes forward?

Baroness Ashton of Upholland: My Lords, it is not down to the Speaker. I sought to give as much clarity as possible and I will make sure that I give the noble Lord chapter and verse on this. My understanding is that Standing Order 21 is simply the Motion that says that there will be a debate on the relevant point and

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that the debate will last for 90 minutes. I do not believe I have misquoted the Standing Order but I will make sure. This refers to another place and not to your Lordships’ House. The issue I was seeking to address was that there will be a 90-minute debate in another place which will be the basis on which the decision will be taken. Noble Lords do not need to worry about Standing Order 21, which is an order under an Act. The relevant issue for your Lordships’ House is that there would be a debate with a vote. The noble Lord need not exercise himself too much. I was merely saying that there would be a 90-minute debate so that the noble Lord would have a point of comparison. It would be for your Lordships’ House to determine the length of the debate it would wish to have on the same issue. The critical point is that there would be a vote in both Houses and both Houses have a veto.

Lord Howell of Guildford: My Lords, we are into very deep waters here. As for your Lordships’ House, which it is absolutely right for the Leader of the House to be concerned with, the procedure she outlines where we have a certain flexibility outside the powers of the Executive would give rise to the opportunity for debates, Motions and maybe even votes amending those Motions in accordance with the Bill. Our concern tonight is with the broader issue of the position of Parliament as a whole and that means the position of both Houses in relation to the Executive agreeing, through the process described in the treaty, to changes in the treaty and the removal of vetoes on certain areas of activity. Those might be significant or insignificant; they might be announced in the middle of the night for trade-off or in the middle of the day. I have no idea which. But now the noble Baroness says that this is all to be under SO 21. Well, I have SO 21 under my finger, and it is all to do with notice of Questions:

I repeat: are we talking about the Executive allowing government time? That still leaves the whole process basically in the hands of the Executive in the other place. We are all realists about what that really means: the Executive are still calling the shots. Are we talking about Back-Benchers, chairmen or members of Select Committees, who are Back-Benchers in the other place, seeking the support of the Speaker in getting the equivalent of what used to be an SO 20 order, now, apparently, an SO 21 order? I do not understand which of those is proposed, and whether the Executive really are relinquishing power or just seeking, through this arrangement with committees to—

I have not quite finished my question, but I do not understand this.

10.30 pm

Baroness Ashton of Upholland: My Lords, I appreciate that the noble Lord does not understand and I am worried that he is getting into a bit of a state about

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what is happening in another place, where I hope that the focus of our discussion will be on what happens in your Lordships’ House. Let me be absolutely clear: Standing Order 21 is for any vote under any Act and allows a 90-minute debate. It will be for the Government to table the Motion, as the Bill states. However, under the Act of Parliament that we are about to pass, the Government are not allowed to do anything. Remember what I said: no Minister can do anything—nod their head, shake their head or do anything—until Parliament has approved. The standing order that we are referring to is about the process that another place will undertake. I am absolutely clear that this means a 90-minute debate in government time, with a vote. For this House, the debate would be given time as normal, with a vote. The critical difference is that there is no convention governing this House on that vote. Any vote to oppose the Government’s proposal is a veto on the Government.

Lord Howell of Guildford: My Lords, I do not want to detain your Lordships on a complex business. However, Standing Order 21 of the House of Commons is on an area controlled by the Speaker, not by the Executive. That is what it says; the thing is written in front of me. There seems to be considerable confusion, but behind it lies a basic fact.

The noble Baroness is second to none in upholding and elucidating—indeed, improving—the role of your Lordships’ House as an amending and cooling Chamber. That is very good and she does it excellently. However, this debate is about something larger than that. It is about the powers of Parliament in relation to changes in treaties that would reduce the powers of our Parliament, in the elected lower House and this House, which is currently appointed. That is what we are concerned with and it is not at all clear from our discussion. SO 21 does not clarify the issue; it seems to confuse it further. The Executive appear to be still in control of the scene, as the noble Baroness has described it. Government time will be allocated. The request of a Select Committee will come bubbling up and it will be in the power of the Executive, if it is in their interests—

Lord Maclennan of Rogart: My Lords, I hesitate to intervene, but the noble Lord, Lord Howell, in attempting to clarify the precise procedure that might be followed in obtaining the support of Parliament, seems—not deliberately, I am sure—to be underemphasising the significance of the requirement in this Bill to obtain the approval of Parliament before these changes can be made. Ex ante, the Government’s executive role is controlled not by the decision that may be taken in a debate, however that debate is initiated, but by the very statute that we are debating tonight. That seems to me to be a profound inhibition on the Government. Although I wholly accept the necessity to put beyond doubt how the debate will be tabled, the fact is that the Government will be prevented from changing the law from what it will be under the Bill that we are debating.

Lord Howell of Guildford: My Lords, I see the point that the noble Lord is trying to make, but my contention is that the would-be statute, the Bill, with which we are concerned does not do the trick. We were looking for

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something stronger to satisfy the proposition that this will not be just another device for the Executive, on their own say-so, to allocate their own time, or not, and to whip their majorities, or not, into line on a change in the treaties that might affect a lot of people who would feel that there had not been a proper parliamentary process. That is the difference between us, I am afraid.

Baroness Ashton of Upholland: My Lords, I hesitate to intervene again but I am concerned that the noble Lord is suggesting that somehow the Government or the Opposition would not whip on a Motion of this kind. Let me be clear about this. I apologise if there is any misunderstanding as regards Standing Order 21. If we are wrong about the number, I will, of course, correct it. That is the number I have been given. However, I appreciate that because I am not a Member of another place I am not familiar with the numbers in the way that, sadly, I have become familiar with the Companion. The Government guarantee to make time because they have to. They cannot do anything unless they do. They do not have any power to go to Europe and negotiate anything on these passerelles without parliamentary approval in both your Lordships’ House and another place. The Government cannot do anything, therefore they have to make time. Of course, it is government time because noble Lords would no doubt complain if it was not. That is right and proper. Where this has relevance and significance in terms of other instruments is that the Government will find time, in collaboration with the usual channels, for this to be debated. Noble Lords will know that even when there are conventions that, for example, statutory instruments are not voted against, on occasion they have been. We are saying that there are no conventions here; this is new. Therefore, noble Lords can vote on it.

There is absolute clarity on this. I am worried that the noble Lord, Lord Howell, is trying almost to confuse the issue in order to bring it back. I do not accept that. It is crystal clear that in both Houses of Parliament there will be a vote and a veto by either House. It will be done under the appropriate Standing Order of another place and it will be done in your Lordships' House under the procedure I have outlined. That could not be clearer. That is the decision before your Lordships’ House: whether that is sufficient to give what I believe is effective control or whether noble Lords believe, for reasons I do not understand, that an Act of Parliament is required as well.

Lord Howell of Guildford: My Lords, I totally reject the proposition that I am trying to confuse the issues; I am trying to clarify them. We have already had a completely misleading proposition about the Standing Orders of the House of Commons. Frankly, it is rather disgraceful that we should be misled over that. If the noble Baroness is suggesting that I tried to confuse things originally, I do not accept that.

Baroness Ashton of Upholland: My Lords, I do not think that I behaved in a disgraceful manner. I have already said that if I made a mistake I will correct it. I was not trying to act disgracefully in any way, shape or

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form. Indeed, under the new book that has been published, the relevant standing order is Standing Order 60.

Lord Howell of Guildford: My Lords, now we have moved to another Standing Order. I want to keep this calm and I do not want us to be distracted by the off-stage noises.

Lord McNally: My Lords, the noble Lord is being a barrack-room lawyer on this matter. If he wants primary legislation, he should test the opinion of the House. The Government have moved a great deal on this. He has managed to find a genuine mistake and now wants to turn it into a conspiracy. Some of us resent that.

Lord Howell of Guildford: My Lords, I have been called many things, usually in an opposite category to “barrack-room lawyer”. I do not think that I fit naturally into that category. However, I agree with the noble Lord that we should test the opinion of the House. There is a difference between us over whether the 90-minute procedure described by the Minister suffices as proper parliamentary control. We do not think that it does and we are entitled to that opinion. There is a doubt about how it would work in the other place. It is not a case of finding a difference: there is a distinct doubt. I will take the advice of the noble Lord, Lord McNally, which is often very good. Sometimes it is not very good and sometimes it is rather rude. However, in this case, I will take his advice and urge that we now test the opinion of the House.

10.40 pm

On Question, Whether the said amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 16; Not-Contents, 33.


Division No. 3


CONTENTS

Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Attlee, E.
Blackwell, L.
Ferrers, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Norton of Louth, L.
Seccombe, B. [Teller]
Skelmersdale, L.
Strathclyde, L.
Taylor of Holbeach, L.
Wade of Chorlton, L.

NOT CONTENTS

Addington, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Bassam of Brighton, L.
Bradshaw, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
D'Souza, B.
Dykes, L.
Farrington of Ribbleton, B.
Gibson of Market Rasen, B.
Goodhart, L.
Grenfell, L.
Hannay of Chiswick, L.
Harris of Richmond, B.
Howarth of Newport, L.
Linklater of Butterstone, B.
Ludford, B.
McKenzie of Luton, L.
Maclennan of Rogart, L.
McNally, L.
Maxton, L.
Quin, B.
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