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The further clarification we have is that not only is CFSP excluded, which has reassured a number of noble Lords in recent debates, but that the consent of the European Parliament is also now required. Personally, I welcome that, but I accept the suggestion of the noble Lord, Lord Howell, that it needs to be explained more thoroughly by the Government. Finally, we have a veto. There is a famous obsession with vetoes, but in this case it might be justified depending on what matter needed to be vetoed in the future. In the mean time, we feel that it is not necessary for the amendment to be pressed tonight.



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Lord Hannay of Chiswick: My Lords, the amendment relates to an article which is not even Article 308, which has been referred to so often, but to Article 235 of the treaty of Rome. It is something of a miracle that the authors of the treaty of Lisbon have managed to arrange the same three figures in a different order. I am sure that if the noble Lord, Lord Pearson, had been in his place he would have told us that it had some cabbalistic significance equal almost to 666 being the sign of the devil, but he is not here so we shall be spared that. However, it is Article 235 of the Rome treaty which noble Lords opposite ratified along with the rest of us when we joined the European Community, as it then was.

Is it a passerelle? No, it is not. A passerelle is a provision that enables the Council to change something in the Lisbon treaty without going through the whole process of treaty change. This provision does not allow that. It allows the Council to do something which is not provided for in the Lisbon or any other treaty if, by unanimity, the Council so wishes to do it. That is not a passerelle, I am sorry to say, so it is wrong to call it that. It is a provision, I agree, that allows for some flexibility, and in the past it has been used—quite often, or in fact invariably—with the agreement of this country because it has been seen to be in our overall interest. Since it requires unanimity, I have no doubt that that is the touchstone that will be applied in the future.

As to the past passerelles of which noble Lords have been reminded by a letter from the Leader of the House, I say merely that it is an admirable thing to have done. It is quite right to remind us that they exist, but they are not in any sense sinister. They are something to which successive British Governments have agreed over the years and fall, therefore, under the rubric of pactus sunt servanda, which now that the Mayor of London is favouring the use of Latin in schools, will perhaps come to be more regularly understood and less mocked than it has been in the past. It is a fairly important aspect of the way the European Union works. It is right that the Government have reminded noble Lords of the existence of these passerelles—they are passerelles that have been agreed in the past—and how they continue to exist, but I do not think there is anything sinister about them. I hope that, on reflection and in the light of assurances given by the Leader of the House, the noble Lord will feel it is possible not to proceed with the amendment.

Lord Blackwell: My Lords, this is one of the most significant provisions in the treaty and it is sad that having run out of time to discuss it in Committee, we are now considering it at this late hour on Report. The noble Lord, Lord Hannay, says that it is not a passerelle, but this is a measure which allows the EU, through the Council, to extend its competences. Under this clause, the EU can take powers to pursue its objectives where the treaties do not provide for them. As we know, the objectives are set out in very broad terms in Articles 2 and 3 of the treaty, and at the moment at the end of Article 3 it states:

So it is limited to the competences in these treaties.



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We have heard a lot about the fact that the competences of the EU are only those set out in these treaties. Lo and behold, we now have an article which says that if there is a competence that the EU needs to pursue those objectives but which is not set out in the treaties, we can decide to adopt that competence. I do not find much reassurance in the constraint that if the treaty says you cannot harmonise laws, then it cannot be used to harmonise laws. I am aware of only a small number of cases where the treaty specifically prohibits harmonisation of laws—some under the area of freedom, security and justice—but I do not think most competences that the EU might want to take on are covered by that restriction. Yes, it excludes defence and foreign affairs, for which we should be grateful, but that still allows huge scope for extension of competences to achieve these very broad objectives in Article 3 for any measures that the EU wants to take which are not currently set out in this treaty.

It is true that Article 308 provided very similar powers and the noble Lord, Lord Hannay, is right that those went back to earlier treaties, but they were, as was described earlier, constrained in the wording of the earlier article by the need for the measures to be necessary for the operation of the Common Market or the internal market. That is a very different scope from a clause which removes that condition and allows any competence to be taken on board to meet any of these very broad objectives which, I remind your Lordships, include things such as achieving a highly competitive social market economy, social progress, technological advance, and solidarity between generations. There is no end of things that could be taken on board to meet those objectives under this clause.

As we know from the inquiries made by the noble Lord, Lord Pearson, of various Ministers across the Dispatch Box, Article 308 has been used in the past to provide measures which went beyond the internal market because, although we are told that the European Court never exceeds what the treaty says, the law has been interpreted here in a very permissive way to allow Article 308 to be stretched beyond the original meaning. In that sense, this clause tries to legitimise the abuse that has been made of Article 308 in the past, but in doing so it not only legitimises that position but opens up huge opportunities for further development of competences under this treaty. To my mind, that would traditionally have needed a new treaty. Extending the competences of the European Union should not happen without a proper treaty. This article allows it to be done by unanimity, but by the Executive.

The whole purpose of these amendments is to ensure that there is proper parliamentary scrutiny of things which otherwise would have required treaties. I am amazed, and would have brought this up in Committee if we had discussed it, that this is the one huge provision which is not included in the Bill under Clause 6, where the Government believe that parliamentary control of decisions is needed. Paragraphs (a) to (i) are listed but the biggest gateway to the adoption of new competences is not apparently seen as worthy of the same level of parliamentary scrutiny as the other decisions listed under Clause 6. I believe it

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should be. If the Government were to add it to the provisions in Clause 6, that would be a satisfactory measure. In the absence of that, I believe that this amendment is essential to protect proper parliamentary scrutiny of the treaty. If my noble friend is not satisfied tonight, I very much hope that he might consider bringing this back at Third Reading. I think it is far too important to pass at this late hour without proper debate.

Baroness Ludford: My Lords, I have a somewhat different view and interpretation of Article 352 from that of the noble Lord, Lord Blackwell. He said that it allows the EU to take any measure that it wants. I do not think that that is correct. I would even take issue with his description that it allows the EU to extend competences. It uses the words:

This has to fit within a policy in the treaties to obtain one of the objectives. I do not think, therefore, that you are extending competences if you invoke Article 352 and it certainly does not apply to any measure that the EU might want to take.

We have had a lot of talk this afternoon and this evening about double locks and triple locks. I think that there is a seven-part lock on this article. The first is the use of the word “necessary”, as opposed to “useful” or “desirable”. I am sure that there would be litigation over the term “necessary”, if necessary. Then you have this criterion referring to action,

That is the second lock. Then you have the need for unanimity, which means a veto, including by the UK or other member states. Then you have to obtain the consent of the European Parliament. Then there is the yellow and orange card procedure for national parliaments. I would say that, with the European Parliament role and the national parliamentary role, there is proper parliamentary scrutiny, as well as what would happen at Westminster under whatever procedures are agreed here. I do not accept that there is no proper parliamentary scrutiny. Then you have Article 3, which the noble Lord dismissed. I happen to think that it is quite important. It states strongly and clearly:

Finally, as has been said, this cannot be used to extend the CFSP provisions or, indeed, something do with Article 40—I think that it is to do with agriculture, but I am afraid that that is outside my pay grade. I just submit that there are considerable safeguards within Article 352. The noble Lord, Lord Blackwell, described it as meaning that you can just come along and say, “We want to do something else”. That is a misrepresentation of Article 352.

Baroness Ashton of Upholland: My Lords, I am grateful to all noble Lords who have spoken. I begin by making clear what happened with the response to the Constitution Committee report, which was published last Wednesday. Under the usual procedures of the

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House it was sent to the clerk to the committee, with copies for all committee members. Copies were placed in the Printed Paper Office, where noble Lords have been able to find it since last Wednesday. It was sent to the Libraries of both Houses. I also asked that it should go to Members who had spoken in debate. I will have to check whether that happened, as I have not had a chance to go back to my office. Certainly, all the usual procedures of how we publish a document were followed. I referred to the response at least once earlier in today’s debate. I am sorry that the noble Lord, Lord Howell, found it on his desk. I am not suggesting that he was implying that that was my fault, as it certainly was not. I have obeyed, as noble Lords would expect, every process. In fact, I have done everything that I can think of to inform noble Lords, including copying every letter to everybody. Every process has been adhered to extremely strictly. I hope that the noble Lord will accept that that was the case.

While noble Lords were talking, I was just reminding myself of what Article 352 says. When we talk about it, it is important to consider it in the context of what the words actually mean. I am just going to read a little bit of what Article 352 says. It is the updated version of Article 308, which I know has been an issue that scrutiny committees in your Lordships’ House and another place have raised before. Noble Lords referred to the noble Lord, Lord Pearson of Rannoch. He is not the only one, but he is certainly the most assiduous person in this. I am sorry that he is not here, but that is his choice, as indeed it was the choice of noble Lords opposite to debate this amendment at this time of night. We have a whole day left and, at the moment, only one amendment down. We could certainly have discussed this much earlier in the day if noble Lords had wished to, but the choice was not mine.

The article says:

There are quite important caveats built into that: unanimity; the proposal from the Commission and consent of the Parliament, which is new; and making sure that it is concerned with what is provided within the treaties and not beyond. Noble Lords will know that that has been important from a UK point of view in, for example, providing financial assistance to third countries, including Lebanon and Georgia, where we were concerned to ensure that there was macroeconomic stabilisation. So there is a value to this article—formerly Article 308, now Article 352—in helping us to address issues that could not have been foreseen but are absolutely within the treaty, and in ensuring that the safeguards are completely clear.

As noble Lords have said, let us be clear as to what those are. I have described one as unanimity, which means that the UK—and any other member state—can say no. We have talked about the consent of the European Parliament, so the democratic institution in Europe will have the right to say yes or no. Of course, as the noble Baroness, Lady Ludford, mentioned,

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national Parliaments will be able to play what have become known as yellow or orange cards; they could be used in this context, to raise concerns with the Commission and for Parliaments to say that this is not a way forward that they find acceptable. The noble Lord, Lord Hannay, made it clear that it is not a passerelle. It does not change the treaty, because it can only be used to give effect to a treaty objective: something that has already been determined. I have outlined what the procedure would be.

The Government’s position is clear. We have listened with enormous care to the scrutiny committees. In our response to the Constitution Committee, we have also made it clear that every explanatory memorandum submitted to the committees for proposals with what was Article 308 as the sole legal basis has contained an explanation of the justification of the use of that article. We will continue in exactly the same vein under Article 352.

There is a welcome clarification in what has been described under Article 352. The procedure that will be used and the consents that will be needed are clearer. As I have already indicated, we of course have a veto on it. I therefore hope that the noble Lord will feel able to withdraw his amendment.

Lord Howell of Guildford: My Lords, I am most grateful to the noble Baroness, and quite accept that if my postal systems are not all that marvellous and things come through slowly it is nothing to do with her; it is my fault. However, my noble friend Lord Hunt, who has been intimately involved in the handling of the Bill throughout, has still not received his copy either. Maybe, therefore, something more than just my own postal system is at fault. I am sure that she would be ready to check with her office as to what, exactly, happened in the case of myself and my noble friend. If I sometimes get a feeling that we are having to fight with wooden rifles and pitchforks against the government juggernaut, I will try to dismiss them and use the modern weaponry of debate and opposition.

The noble Baroness has given some reassurances, but they do not meet the general unease that runs through many of our queries about the distribution of powers. Power is a reality; it empowers those who can use it, who need to use it with humility, respect and care. Wherever it is being tossed around, acquired, redistributed, taken or given, we must be on our guard. Our parliamentary system has not been too bad at that over its lifetime and through its evolution.

I was not saying that this provision was a passerelle. The noble Lord, Lord Hannay, was quite right if he thought I was comparing it to a passerelle, but I was adding it to the general bundle of propositions and provisions in the treaty and the Bill which seem to

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open doors rather than close them. Far from supporting the Prime Minister’s view that there will be no more change or institutional reorganisation in the European Union, they imply that there is going to be a lot more and that we are going to be watching and, I hope, debating and having some control and final parliamentary say over a whole series of movements of power upwards and maybe, as the noble Baroness was suggesting, downwards as well. That will be the day.

We have not heard much about this recently but it used to be the dream of many modern reformers in the European Union that the acquis should be unravelled and revived, and that the acquis powers that have accumulated over two, three or four decades and belong to a different era should now be transferred back to the nation state. That would be the position of the real liberal moderniser in Europe today. About that we have heard nothing and certainly the treaty does nothing towards that end. It talks about subsidiarity. We hope that is going to work better than in the past but that is very different from what I am saying. We do not need in the modern age such a centralisation of powers and initiatives. We can live with more disparity. We heard the cries of the lawyers earlier that we had to have a harmony of legal authority in the ECJ and what chaos there would be without one supreme legal authority throughout the Union, obviously extending its powers now with the collapse of Pillar 3 into a single pillar. But wherever we can, and even against the instinct of the lawyers and other centralisers, we want to be looking the other way towards decentralisation and variety within the overall scope of the club that is the European Union which, contrary to constant speeches from over my right shoulder, we support and always have supported and believe is an immensely important part of the armoury and membership of this country in its pursuit of its international objectives.

This debate is part of a broader scene which confirms that this Bill extends competences. The list is there. It extends the QMV areas to between 51 and 61—I forget the names. It extends the powers of the European Parliament, which badly needs to reform itself, if we read it aright. I would say, in coming to the end of our debates, it has been a bad day for parliaments and this Parliament and a good day for Executive power. I hope those who have done that task will reflect on what they have achieved. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned.

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

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