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The noble Lord, Lord Grenfell, wanted to ensure that there is a guarantee of a debate and not just the usual channels and so forth. We will write that in to the scrutiny. I know that the usual channels will be comfortable with that and we will find a form of words. As I indicated, I think that the best way forward is to put alongside this a separate scrutiny reserve resolution that your Lordships will see again, debate and vote on in full before it is approved. That should be drawn up in conjunction with the noble Lord, Lord Grenfell. It will be drawn up with Mr Connarty in another place so that it is absolutely clear that the procedures of each House will be fully adhered to. The promises and commitments that I have made will also be adhered to. That will be amendable in your Lordships’ House.
In response to my noble and learned friend Lord Morris of Aberavon, the vote on the proposals that might come out of the committee would also be an amendable resolution. It is not the equivalent of a statutory instrument, which I know is one of the concerns of noble Lords. I talked in the committee about the difficulties of a vote in both Houses leading to a deadlock, not least because of the 13-week timetable. The noble Lord, Lord Maclennan, is right—some of these issues are minor and technical, some of them are more substantive. Although I know that in my conversations with noble Lords the focus has been about whether the Government choose to opt in, it is also important to look at whether they choose to come out of something. That is very important.
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It may well be that the day would come when a committee of your Lordships’ House felt that it was important that the House debated and voted on whether the Government should pull out of something, in the interests of this country. The noble and learned Lord, Lord Lyell, was concerned that these might come in packages. It has never been my experience that they come in packages, and even if we had them coming one on one, they are all separate legal instruments that must be debated under the proposal and voted on individually. It is not a case of packaging it all together; they would have to be taken separately. As I have already indicated, we do not always know at the beginning of a year exactly what will be forthcoming, but we can set out our strategy and our view on the issues that we know will be coming up.
I say to my noble friend Lord Rowlands that what my noble friend said in Committee about not necessarily being aware of all the issues around justice and home affairs and the opt-ins led to the proposal for an annual report at the beginning and an annual review at the end. It is entirely down to what he said that that will happen. I am delighted that the noble and learned Lord, Lord Woolf, is satisfied. I am looking at the judiciary. I do not have to have it for this process, but I have taken it on board and I have fed it in, as the noble and learned Lord would expect. I promise to come back to him on that.
A number of noble Lords, not least the noble Baroness, Lady O’Cathain, have asked about the 13 weeks, which is a very strict deadline. After 91 days, if you are not in the proposal, you are not participating in the discussions and debates. You are not in the working groups, you are not influencing the decisions and you are not supporting other member states that would find it incredibly valuable to have the UK on-side. You are not amending the proposal, which may be fine, but which you may like to see made stronger. You are not there, and you are certainly not being allowed to speak in the discussions of the Justice and Home Affairs Council on the issue, because you are not part of it.
When the process is complete, we could, if we wish, seek permission from the Commission and the Council to join the proposal, and that may well be forthcoming. However, it would be on a proposal that we would have had no say in, which we may have initially thought was in the interests of the UK, but which could be made stronger. That is an important point—
Lord Howell of Guildford: My Lords, I am extremely grateful to the noble Baroness, and I apologise for interrupting those very detailed comments. If, as she appears to be arguing, we are going to, in effect, deny the other place the opportunity to look at this issue again, we need to be absolutely clear about what she is proposing. The proposal makes an exception. It says that where an earlier opt-in decision is necessary, those rules will not apply. In fact, it will be in the Government’s gift to say, “I am sorry, we have overridden that particular opt-in opportunity”. Does that fit in with the detail of the timetable that she is talking about?
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Baroness Ashton of Upholland: My Lords, I tried to address that in my opening remarks. I checked, and the Home Office has overridden scrutiny only once in the past year. There is a procedure whereby, when one is looking for readmission agreements with third countries—to return third country nationals from the European Union—there have been occasions when the signatories needed for the countries to agree that they are going to send back third country nationals have taken place within six weeks. That has led to a quicker process. That is the only example that I could find, and I raise it specifically to make it clear that there could be exceptional circumstances.
When we look at the scrutiny or reserve resolution that we put before your Lordships’ House, we will have had time by then to discuss with the EU Committee how it wishes us to handle it. I do not want to pretend that it has never happened, because it has. There were a specific set of circumstances in which it did happen. Therefore, I cannot pretend that it may never happen again. Such an agreement might come forward, and we will find a way of dealing with that.
The noble Lord is right to raise the “weasel word” point made by the noble Lord, Lord Marlesford; whether there is anything that is weaselly in any attempt to say that there will never be such circumstances or that the Government could say, “Actually, there are 20 times when that would happen”. Hence, my being very precise about it. We will make sure that we cover that in the resolution. It will come back to your Lordships’ House, it will be amendable, and noble Lords will be able to vote on it.
I cannot say that it will never happen, but it will be extremely exceptional. We will find a process of dealing with it that does not take away from the committee the opportunity to consider it, bearing in mind that that will be the timetable. I hope that that will help the noble Lord. Alan Clark’s diaries are very good but I do not see them as an authority on this issue. I would rather go on my own experiences of the European Union and, in particular, of the Justice and Home Affairs Council.
I hope that what I have said takes us to a place where your Lordships will feel comfortable. I am extremely grateful to everybody who has spoken. I do not know what the noble Lord, Lord Goodlad, will do—we are in his hands—but I am grateful that the other three noble Lords who added their names have thus far indicated that I have done enough to demonstrate the Government’s commitment to ensure that Parliament has a proper place in this.
Lord Goodlad: My Lords, this has been an extremely valuable debate which has exposed a variety of deeply held views. I begin by expressing my renewed gratitude to the noble Baroness the Leader of the House for the extremely constructive way in which she has sought to carry forward the discussion.
As I said at the beginning, since the early 1970s, before we acceded to the European Community, debates on European matters were characterised by a cross-party nature and traditional party allegiances were set aside. That was certainly the case in recent years, as I have
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My view—I speak purely for myself; other members of the Constitution Committee have expressed their own views—is that the constitution should be clarified in the Bill. We heard the commitments that the noble Baroness made on behalf of the Government and the aspirations that she expressed; some of them were inchoate but no doubt they can be clarified. As I mentioned, many noble Lords have worked in the vineyards of the hustings, in Parliament and elsewhere over many years to support the cause of Britain in Europe, and many public officials, some of whose alumni are in their places today, have sat up late at night negotiating on Britain’s behalf. All are equally aware of the necessity of maintaining public confidence.
It is preferable that provision for parliamentary scrutiny is in the Bill, and in my view the best shot so far has been in the terms of the amendment. If that is not the case, it can be returned to at Third Reading. Such has been the widespread support for that view in this House that it is within our traditions that the opinion of the House should be sought.
4.58 pm
On Question, Whether the said amendment (No. 25) shall be agreed to?
Their Lordships divided: Contents, 196; Not-Contents, 227.
Ampthill, L.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Bagri, L.
Baker of Dorking, L.
Ballyedmond, L.
Bell, L.
Blackwell, L.
Blaker, L.
Bottomley of Nettlestone, B.
Bridgeman, V.
Bridges, L.
Brooke of Sutton Mandeville, L.
Brooks of Tremorfa, L.
Brougham and Vaux, L.
Bruce-Lockhart, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Carrington, L.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Coe, L.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Crawford and Balcarres, E.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dean of Harptree, L.
Dear, L.
Denham, L.
Dixon-Smith, L.
Dundee, E.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Feldman, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Goschen, V.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hanham, B.
Hanningfield, L.
Harris of Peckham, L.
Hastings of Scarisbrick, L.
Hayhoe, L.
Henley, L.
Higgins, L.
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Hogg, B.
Home, E.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Inglewood, L.
James of Blackheath, L.
James of Holland Park, B.
Janvrin, L.
Jenkin of Roding, L.
Jopling, L.
Kalms, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Leach of Fairford, L.
Lindsay, E.
Liverpool, E.
Lloyd-Webber, L.
Luce, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L. [Teller]
McAlpine of West Green, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maginnis of Drumglass, L.
Mancroft, L.
Marland, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Murton of Lindisfarne, L.
Naseby, L.
Neill of Bladen, L.
Neville-Jones, B.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
O'Cathain, B. [Teller]
Oppenheim-Barnes, B.
Owen, L.
Palmer, L.
Palumbo, L.
Park of Monmouth, B.
Parkinson, L.
Patten, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plummer of St. Marylebone, L.
Prior, L.
Quinton, L.
Rawlings, B.
Reay, L.
Rees, L.
Rees-Mogg, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Rogan, L.
Rotherwick, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Saatchi, L.
Sainsbury of Preston Candover, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Sterling of Plaistow, L.
Stevens of Kirkwhelpington, L.
Stevens of Ludgate, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Tebbit, L.
Thatcher, B.
Trefgarne, L.
Trenchard, V.
Trimble, L.
Trumpington, B.
Ullswater, V.
Verma, B.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walker of Worcester, L.
Warnock, B.
Warsi, B.
Waverley, V.
Wilcox, B.
Windlesham, L.
Wolfson, L.
Wolfson of Sunningdale, L.
Young of Graffham, L.
Addington, L.
Adonis, L.
Ahmed, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Bilston, L.
Blackstone, B.
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Blood, B.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Bowness, L.
Bradley, L.
Bradshaw, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Chichester, Bp.
Chidgey, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clement-Jones, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Corston, B.
Coussins, B.
Crisp, L.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dearing, L.
Dholakia, L.
Donoughue, L.
D'Souza, B.
Dubs, L.
Dykes, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkender, B.
Falkland, V.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Foulkes of Cumnock, L.
Fritchie, B.
Gale, B.
Garden of Frognal, B.
Gibson of Market Rasen, B.
Giddens, L.
Glasgow, E.
Golding, B.
Goodhart, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Griffiths of Burry Port, L.
Grocott, L.
Hamwee, B.
Hannay of Chiswick, L.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hooson, L.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kinnock, L.
Layard, L.
Lea of Crondall, L.
Lee of Trafford, L.
Leitch, L.
Lester of Herne Hill, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Ludford, B.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Malloch-Brown, L.
Mar, C.
Mar and Kellie, E.
Marsh, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Moser, L.
Newby, L.
Northover, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Oxburgh, L.
Patel, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Prys-Davies, L.
Puttnam, L.
Quin, B.
Radice, L.
Ramsbotham, L.
Razzall, L.
Rea, L.
Rendell of Babergh, B.
Rennard, L.
Ripon and Leeds, Bp.
Roberts of Llandudno, L.
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Rooker, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sewel, L.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Slynn of Hadley, L.
Soley, L.
Southwark, Bp.
Steel of Aikwood, L.
Stone of Blackheath, L.
Strabolgi, L.
Taverne, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Macclesfield, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tope, L.
Tordoff, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turnbull, L.
Turner of Camden, B.
Tyler, L.
Vadera, B.
Wall of New Barnet, B.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Crosby, B.
Woolf, L.
Woolmer of Leeds, L.
Wright of Richmond, L.
Resolved in the negative, and amendment disagreed to accordingly.
5.12 pm
Lord Pearson of Rannoch moved Amendment No. 26:
(1) Within six months of the coming into force of this Act, the Secretary of State shall lay a report before Parliament on the constitutional position of the Monarch in relation to Her people, Parliament and Ministers—
(2) Within one month of the laying of the report, a Minister of the Crown shall move a motion in each House of Parliament that the House approves the report.
(3) In subsection (2), the reference to “one month” does not include any period of time in which the House in question is dissolved, prorogued or in recess for a period of more than four days.”
The noble Lord said: I apologise for the delay, my Lords, but I got locked out.
I am sure that the whole of your Lordships’ House is united in the deep respect, gratitude and loyalty we bear to Her Majesty the Queen. I feel sure that we all approach the amendment with the greatest care. I am advised that it is in order for us to debate the monarch’s position as it may be affected by the Lisbon treaty, but we must not attempt to use the Queen’s name to influence a decision of the House; nor must we impute any views to the Queen herself, whom may God continue to bless and preserve.
The relationship between the Crown and the British people has evolved over many centuries: Magna Carta; the civil war and the execution of Charles I; the restoration, the Bill of Rights and the Act of Union have all contributed to the constitutional monarchy that we enjoy today. The Bill of Rights of 1689 is often held up as the nearest thing we have to a written
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- “no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm”.
Perhaps the best definition of the monarch’s position comes to us from Bagehot in 1687, in his work, The English Constitution—
Lord Lamont of Lerwick: My Lords, it was not 1687.
Lord Pearson of Rannoch: I am sorry, my Lords, it was 1867. Bagehot held that the sovereign had three principal rights or powers: to be consulted, to encourage and to warn. Inherent in those three rights is of course a fourth: the right to be informed. As I understand it, that is still the generally accepted position today and is reflected in the Prime Minister of the day’s weekly private audience with Her Majesty.
I think that it is also generally accepted that the Queen has one further duty, which is to maintain a Government. One thinks here of a possible hung Parliament and the situation that arose in 1974.
There are two other vital aspects of our unwritten constitution. One is that the Queen acts on the advice of her Ministers. The other is that in her Coronation Oath, the Queen promised to govern us and the Commonwealth according to our respective laws and customs. Many feel that those two aspects have been growing steadily more uncomfortable with each other since we joined the European Community in 1972, but that they may be brought into irreconcilable conflict by the treaty of Lisbon and as the European Union develops the powers that it will receive under that treaty.
The first of those positions—that the Queen acts on the advice of her Ministers—is well put in the letter that Buckingham Palace is currently sending out to the large number of people who are writing to the Queen asking her to withhold her consent from the Lisbon Bill, unless it has first been supported in a referendum of the people. I cite the relevant passage from that letter:
“Policy on the United Kingdom's membership of the European Union and the strengthening of relations between Member States is entirely a matter for the Queen’s Ministers and not one in which it would be constitutionally appropriate for Her Majesty to intervene”.
The possible conflict between that tradition and the Queen's Coronation Oath turns on the interpretation of what are “our respective customs”. There are those—I imagine that the Government are among them—who hold that our respective customs include the custom that the Queen acts on the advice of Ministers, whatever it is and from wherever it comes. That is the end of the discussion as far as those who adhere to that position are concerned.
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