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So there can be no uncertainty about the matter. It is crystal clear and I hope we can skate speedily over this non-issue.

9.15 pm

Lord Hannay of Chiswick: My Lords, the last thing that anyone will criticise Her Majesty’s Opposition for is taking insufficient account of every nightmare, frisson and other possibility that is around, because the list of amendments that we have discussed runs through the whole gamut and beyond. The noble Lord, Lord Howell, can feel confident that no one will ever accuse him of that. However, as the noble Lord, Lord Anderson, said, the treaty itself is extremely explicit so far as the responsibilities of the President of the Commission are concerned, in a way that seriously and totally precludes the sort of nightmare scenario suggested in this amendment. I would have thought—the noble Baroness the Leader of the House can no doubt confirm this—that in order for this to come about, you would have to change the treaty. In which case you do not need this amendment, because if you change the treaty you will have to have the full ratification procedure as laid down, as we are now painfully but enjoyably undergoing in this House.

If the noble Lord receives sufficient satisfaction from the Leader of the House I hope that he will feel able to withdraw the amendment.

Lord Wallace of Saltaire: My Lords, the justification for moving the amendment is not that this is likely but that “the idea is around”. A great many ideas about European integration are around. During the dinner hour I ran across the noble Lord, Lord Pearson of Rannoch, on his way home and I upbraided him for going home. I was imagining that if he had stayed here he might have wanted to raise the question of whether it was possible to envisage a European federation eventually having a European emperor. After all, there are some candidates for this—a Hohenzollern or two, a Bonaparte and a Habsburg. Some of us have met Otto von Habsburg, who was a Member of the European Parliament for the Christian Social Union in Bavaria. Some noble Lords may also remember a wonderful story. He was asked one evening whether he was going to watch the Austria-Hungary football match. He said, “Yes, perhaps I will. Who are we playing against?”.

The fact that these ideas are around does not necessarily mean that we should be taking them seriously. In the Daily Mail this morning, Melanie Phillips tells us that the European Union is incompatible with democracy. The idea is around. Should we take it seriously? There are some on the Conservative Benches who do take that seriously, but I trust that the noble Lord, Lord Howell, does not.

Baroness Ashton of Upholland: My Lords, I shall do my best to be clear with the noble Lord, Lord Howell, and not to be in any way dismissive. What I interpreted from our previous discussions, as noble Lords have just done, is that there is very little to say on the matter, because the treaty is so clear. It is therefore difficult to extrapolate in great detail. Let me say that noble Lords who have just spoken are right that the treaty is clear. Article 245 of the treaty on the functioning of the European Union states:



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as my noble friend Lord Anderson said. Article 17(3) of the treaty on European Union says that members of the Commission, which includes the president,

If we have three positions and two of them are forbidden to hold any other role, then—unless my logic has gone completely astray—you cannot double hat any one of them. There are not enough of them to achieve that.

The first proposition is that the treaty does not allow it: it is not a question of interpretation and there is no ambiguity; it is absolute clarity. Equally under the treaty there is no provision that we could do this by any passerelle provision: it is not there and does not exist. Indeed, as the noble Lord, Lord Wallace, has said, the only way that the two posts could be merged would be by a treaty change and that could happen only via an Act of Parliament, because this would be an EU amending treaty and it would have to be approved by an Act of Parliament.

Noble Lords opposite have said that in their view, the most positive way to ensure that nothing that they are fearful of happens is by Act of Parliament; here it is. I hope that the noble Lord will withdraw his amendment.

Lord Howell of Guildford: My Lords, I thank the noble Baroness. I say to the noble Lord, Lord Wallace, that the old jokes are definitely the best and I look forward to more old jokes from that direction.

I am a bit reassured by the noble Baroness that, although this raises a much broader question, in the treaty and the Bill as they are presented to us, the ideas that I have been taken to task for saying are around—and they certainly are; I have many more quotations that I could bring to your Lordships’ attention, but I shall not—are unlikely to happen, or could not happen, without changes. I am interested that she thinks that there is no loophole through the passerelle system, but that it would require a new treaty or a major amendment to the treaty and an Act of Parliament. That is the kind of language that we like on this side of the debate. One of our worries—this is almost bringing me on to the next amendment, so I shall say only a few words—is that this is a very open-ended treaty. It is a treaty made of that substance—amoebic jelly, or something—that keeps expanding in horror films. One just does not know what kind of powers can be introduced and at what point.

In a moment, I will come in detail not only to the passerelle loophole, but to others and to the question repeatedly asked from this side of whether our constitutional system, our Parliament, has enough control over the movement and redistribution of powers in the European Union. Some of them may be unfavourable to us; some of them may be helpful. That is the background against which one still asks whether we can have the total reassurance that we require. The noble Baroness is in a reassuring mode, and I am reassured by her, at least for the moment, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.



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Lord Howell of Guildford moved Amendment No. 28E:

(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to vote in favour of, or otherwise support, the decision, and(b) each House agrees to the motion without amendment.

The noble Lord said: My Lords, we now come to a more elaborate and important amendment, which concerns the matters about which I have just been speaking on the previous, much smaller amendment. I want to bring into the Clause 6 world the passerelle provisions and the accountability provisions—measures to ensure parliamentary approval of provision for the EU to adopt measures to obtain treaty objectives.

That sounds like yet another debate on passerelles but of course it goes much further than that. We now have another article—I hesitate to state the number because in my copy of the treaty it is Article 308, but I believe that it has somehow become Article 352. That has received curiously little attention, but it is an article that we should discuss and consider carefully if we are to attempt to do our duty in examining the whole Bill properly. The article, which in my version of the treaty is Article 308, but which I think has become Article 352, states:

a body about which we have heard an awful lot recently—

Could we have some real illumination of the real implications of that, what it might mean in the future and what we are signing up to? It is not very clear, it needs to be clear and we need to have the right clarification on the record.

In addition, I have some comments on the objectives of the treaty and the powers that can be mobilised to achieve them. We had a very interesting debate this afternoon. My noble friend Lord Hunt made a brilliant speech—alas it did not carry the day in votes, but it was brilliant all the same—on the proposals in the amendment tabled by the noble Lord, Lord Goodlad.

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The debate was really all about whether opting in should have the same parliamentary brakes on it and the same statutory controls in the Bill as the other passerelles in Clause 6. The House decided that it should not.

The excellent report of the noble Lord, Lord Goodlad, also reminded us of what might be called the hidden worry about the treaty: the whole range of other passerelles that it has inherited from past treaties and that are not listed in Clause 6 and are not in the Bill. There is a whole string of them. After the debate, I learnt by looking at a document that had been deposited on my desk that the Government had replied on the Bill and the treaty of Lisbon implications for the UK constitution. I refer to the report of the Constitution Committee, which unfortunately had not reached me. Ministers may say that that is the incompetence of my not-very-large organisation, that it should have reached me and that it was tabled and reached the Printed Paper Office, but I felt it rather sad that it did not reach me until this afternoon after the debate. I may be wrong. Perhaps the noble Baroness referred to it in the debate. I am not sure whether she did. Perhaps she could tell us when she comments in a moment. Here it is, and it is full of information that I wish I had had—I also wish my noble friend Lord Hunt had had it because he did not have it either—for this afternoon.

I shall concentrate in particular on the information that was prompted by the comments in the report by the committee of the noble Lord, Lord Goodlad, which suggests that past issues under the parallel procedures should also be taken into account. Indeed, the report says:

That is quite an important statement, which did not feature very much this afternoon. If I had known the nature of the Government’s reply to it, I would have certainly urged others to raise it or raised it myself. It tells us that there is indeed a big and powerful list of issues that allow treaty changes without resort to any kind of intergovernmental conference.

There is the provision in the first paragraph, which allows the European Council by unanimity—that is quite fair; I am not making QMV points at this stage—to amend the number of commissions. That is an old one, but it is there still. There is the provision that allows the Council to strengthen or to add to citizens’ rights. That is an important provision that comes from a previous treaty—the Maastricht treaty—and is there still. One is always open to the gibe, “Why didn’t you think of more accountability on that at the time of the Maastricht treaty?”. “I do not know, I cannot remember”, is my answer. Now that we are piling up these provisions, which allow the treaty to be elasticised and expanded, we are starting to become anxious about it, and rightly so.

There is the provision that allows the Council to confer jurisdiction on the European Court of Justice in disputes relating to legal acts creating EU intellectual property rights. We did not hear much about that this afternoon; yet here is an important provision, again inherited I think from the treaty of Nice but one that

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could be used in the future and that allows an extension of the powers and involvement of the ECJ. Another provision allows the Council to add to the list of criminal offences defined at EU level and, again, every member state must agree, but there it is. A “member state” means a government in the European Parliament—not the national Parliaments, incidentally—so that one could be flicked through. There is a provision that allows the Council to add to matters for which directives can be made on criminal procedural law. Again, member states must agree in the European Parliament. Another provision is to extend the European public prosecutor’s powers to include serious crime having a cross-border dimension; and so on. I quote:

As I have emphasised, they do not provide a specific move from unanimity to QMV, although presumably under other parts of the passerelle machinery they could be moved from specific unanimity to QMV.

9.30 pm

So I have a little complaint. It is fair enough for the Government to confine their own information to the debate and everything else, but we are trying to improve this Bill. So far we have not had all that much success because zero amendments have been achieved, but even by our debate, if not by voting things through, we are trying to improve it. It would have been helpful for those of us who have the honour, the privilege and the duty to move these various amendments in order to fulfil our line-by-line examination and duty to get the right documents at the right time.

I repeat that this document arrived on my desk after the debate on the committee’s report this afternoon. I do not think that that is right. But that is probably background to the broader issue of the need to look very carefully at the ways in which the powers exist and can be expanded, developed, lengthened and strengthened for achieving the treaty’s objectives, and how that can be done with or without proper parliamentary control. We prefer it to be with effective parliamentary control and not too much power for the Executive. Others have a different view. I understand it, but I think that it is wrong and out of date. In the mean time, I beg to move.

Lord Dykes: My Lords, following the remarks of the noble Lord, Lord Howell, one is bound to express some sympathy. It is always very awkward for any Members, particularly those who are proposing amendments, not to have the chance of seeing crucial documents at the right time. I do not seek to interfere or to explain the background because I am not aware of it. However, in contrast to that, throughout our proceedings in Committee and on Report I have found—I think that other noble Lords would echo this—that the Government have been very assiduous and efficient in making sure that Members are well informed in advance on all the modalities and matters to do with any amendments that are tabled and so on. So I repeat my feeling of surprise that that has apparently happened and I, too, look forward to hearing the explanation of Leader of the House in answer to the noble Lord, Lord Howell.



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I do not wish to embarrass the noble Lord, but I also have some sympathy with him on his initial remarks about Amendment No. 28E. As he said, this refers to Article 352 of the TFEU, which was originally the famous Article 308. Bearing in mind that on the previous amendment my noble friend Lord Wallace said that the noble Lord, Lord Pearson, had apparently gone home, I couple my surprise and sympathy for the noble Lord, Lord Howell, with shock because the noble Lord, Lord Pearson, used regularly to raise the famous Article 308 matters in legislative proposals and in parliamentary Questions. For him to miss this opportunity on such an important matter seems to be surprising.

Noble Lords will remember that the famous old Article 308 gave those extra powers to the Union or the Community and the Council of Ministers to make decisions where there was nothing covered in other treaty articles and provisions. The flexibility clause, as it has been named colloquially, gives the Union institutions the ability to adopt measures to achieve one of the objectives set out in the treaties where the treaties themselves do not provide the necessary powers. This means the Council acting by unanimity in adopting the measures and there is, therefore, always the use by member states of the national veto if that is deemed to be necessary. One would expect that to be a very rare occurrence.

The flexibility of the clause therefore is more to do with competence and implied powers of the Union rather than the flexibility of the interpretation of the treaty articles or the flexibility of member states to opt in or opt out of the provisions. The noble Lord, Lord Howell, alluded to a number of changes made to the article. In particular, the phrase,

has been removed. The original justification for Article 308 was to deal with those matters in the internal market provisions that were not going to be covered by other treaty articles. There was a good deal of United Kingdom sympathy for that, because of our deep affection for the single market and the creation of the internal trading market of the European Union. This contrasted with our objections about extending powers in other areas of the Community’s endeavours in future legislation. The article has since been expanded to state that national parliaments will be informed of the proposals of any measure that will not lead to harmonisation of the laws of the member states. The article cannot serve as a basis for legislation in relation to CFSP.

Sometimes there are misunderstandings in these matters. One can range over a number of issues that come up in respect of this article and other examples not related to this. I have—quite legitimately—come into possession of a copy of a recent ministerial letter to a noble Lord. I will not name the Cross-Bench Peer. I tried to find him this evening to ask if I could mention his name. I could not find him and therefore, for what I am sure are understandable reasons, I prefer not to name him. The ministerial reply is dated 29 May. It is from the Government and concerns the anxieties of the noble Lord, Lord X, about whether, if

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one burned the European Union flag, one could be prosecuted under UK law for stirring up racial hatred or animosity. The ministerial reply states:

It continues:

Noble Lords getting into such phantasmagorical territory as the voluntary or compulsory burning of the EU flag in order to make a point against the European Union seems to us on these Benches utterly daft. What on earth are people anxious about in the rational development of the modern European Union of 27 countries’ machinery to make the working of the Union effective? One must have that essential machinery: that is what the Lisbon treaty Bill is about.

I find the anxieties about Article 352 also to be overstated by people thinking that it is an “open sesame” to any agreement on extending powers. After all, it has to be by unanimity—we need to keep reminding ourselves about that. Some noble Lords, because of their original views and antipathy towards the European Community and all its works, get carried away with a lot of nonsense on these occasions. We were reassured on 13 March by the famous Lisbon treaty impact assessment of the EU Select Committee, of which I have the honour to be a member. It stated:

I think it is fair to say that the Committee did not sound worried about that. It seemed to be a common-sense addition, as the growth of the treaty has meant other activities must be covered. As the Lisbon treaty puts it beyond doubt that the Article 308 machinery does not allow the EU to expand or circumvent the limits set by the treaties—

I am reassured, and I think that Members on these Benches are reassured, by these welcome declarations.


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