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(b) any amendments to the Bill made necessary by those changed circumstances to be considered in detail by the House, if necessary on recommitment.(Lord Howell of Guildford.)
Lord Richard: My Lords, I want to make three points, and I hope that they may assist the House. Progress on the Bill has been slow and it has been thorough. Let us look at the statistics. Parliament has had 24 days of debate, with 10.5 days in this House; 315 amendments were tabled in the Commons; 266 were tabled in the Lords. There have been no fewer than 57 Divisions: 12 in this House and 45 in another place. The Bill has been scrutinised thoroughly, minutely and in great detail. It is at the final stage of its parliamentary progress. It should now proceed.
It is noteworthy that those who are most in favour of postponing the Bill are the very people who are opposed to the treaty. I am sure that it is a great coincidence, but it is difficult to find, at least in this House, someone who says that he is in favour of the Bill and also in favour of not proceeding with it. I listened to the speech of the noble Lord, Lord Howell, with great interest, as I always do. He uses elegant words and flowing phrases. I was reminded of an incident that took place many years ago in the other place when I rather upset the late Lord Hailsham. I cannot remember what the issue was, but he made a great speech in which there was great talk of honour, constitution and principles. I had to follow him, and follow him I did. I accused him of something I called vintage Hoggery. I then defined vintage Hoggery as the art of elevating a political motive into a high-flown constitutional principle. He was not very well pleasedyour Lordships may not be surprised. Nevertheless, it is good, I suppose, to see that Hoggery still flourishes and exists, at least on the Conservative Front Bench.
The issue here is very simple. It is whether, having got this far, there is any justification for not continuing. We should look first at what the Irish say. They have urged other countries to proceed with their own ratification processes. The Irish Minister for Europe, Mr Roche, said on the BBC on Monday:
I believe that the Irish people have had their say. I believe that they now want to allow each of the other member states to have its say and then at the end of this process to say, Well where does this leave us? Where are we? I mean, the whole genius of Europe is that it has moved together and that it moves together in unison. The idea of a two-tier Europe is not attractive to any member state.
Mr Roche was then asked by the interviewer, Evan Davis:
You want the rest of us to continue with the ratification process, do you, because the British are voting on Wednesday?".
Well, we certainly have said we're not going to intrude on any other member state's ratification process. It's right and proper that each member state deals with this matter in its own constitutional procedures as we did with our process. Our process is respected and we respect everybody else's right to deal with it through their processes.
If the Irish Government do not think that the process of ratification should be postponed, why on earth should we? Nor do I accept for one moment the argument that somehow or other postponing the Third Reading of this Bill gives the Government more elbow room, latitude and clout in any future negotiations. It seems to me to be exactly the contrary. If we pass this Bill, the British position becomes clear. If we do not, it will remain imprecise and opaque, which seems to me to be what the Opposition want.
I do not accept the arguments that the result of the Irish referendum makes it more difficult for us to play our full part in European affairs or that by passing this Bill we are somehow joining with others in bullying Ireland. I cannot help wondering whether these objections would still be made if we had proceeded on a different form of ratification other than the one we chose. There is nothing wrong with ratifying a treaty by the parliamentary process. That is how Maastricht, Nice and the Single European Act were done. The other form of ratification is by a public referendum. Either one is equally valid in law and produces the same effect. I cannot help thinking that the attitude of the Opposition would hardly be the same if we had chosen to ratify via a referendum. Consider this possibility: if that referendum had been arranged, say, for next Monday, is it seriously contended that it would be postponed because of the difficulties that it is alleged might flow from the Irish vote? I do not think the Opposition would advocate that for an instant, even though the effect of the referendum, if positive, would be precisely the same as the passage of this Bill. Either way, therefore, we would go on with it.
The fact is that the Official Opposition just do not want the treaty; it is that which has motivated their actions. I do not think that this House should pander to them any longer. We have come a very long way in considering the Bill. It would be ludicrous for us now to refrain from completing our job.
Lord Neill of Bladen: My Lords, I support the amendment. The Foreign Secretary said in his Statement the other day:
The rules of the treaty and of the EU are clear. All 27 member states must ratify the treaty for it to come into force ... There is no question of ignoring the Irish vote or of bulldozing Irish opinion. Ireland clearly cannot be bound by changes that it has not ratified.[Official Report, Commons, 16/6/08; col. 704.]
He is completely correct in what he said. I hope that I shall be forgiven for reminding your Lordships of some of the relevant legal provisions, as I do not think that we spent any instant of time on them. You have to go to the treaty of Lisbon in its unreadable form, which is in Command Paper 7294the hunks and not the rewritten version that we have all been working from, which the Government kindly produced. If you toil your way through to page 156 of the treaty as printed, you come to the final provisions. The key provision for today is Article 6:
This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic ... This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification
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Those provisions require ratification of this treatynot some other amended or altered versionby all 27 member states. The treaty will not enter into force until the last of the 27 has deposited the instrument of ratification with Italy. That event, we know, will never happen.
Ireland has duly followed its constitutional requirements and a referendum was held. I have looked at the Constitution of Ireland. Articles 46 and 47 deal with proposals for an amendment of the constitution, which have to be,
That law is the next article, which simply says that a proposal for amendment of the constitution should be,
The proposal will be held to have been approved if a majority cast their votes in favour at such a referendum. I am shortening it, but that is the gist.
That event has not happened. The opposite has happened. The people have refused it; they have rejected it. For the sake of accuracy, I should record that there are two referendum Acts in Irelandthose of 1994 and 1996. As far as I can tell from a textbook summary, they add nothing of relevance to the present debate.
What are the facts as they are today? The best source for me was todays Irish Times. On page 8, we are told, that the Taoiseach, Mr Brian Cowen, said in the Dail yesterday:
he is talking about discussions that will take place tomorrow
The Labour leader, Eamon Gilmore, spoke in a similar vein. The Irish Times quoted him as saying that it was important that everyone accepted and respected the decision made last Thursday. The Fine Gael leader, Enda Kenny, joined in, emphasising his disappointment with the result but adding that the decision must be accepted and respected.
Meanwhile, the first page of the Irish Times carried the headline, EU may offer concessions and opt-outs to win new treaty vote. We read from the reporter:
France and Germany are quietly hoping the Government will consider holding another referendum in the spring before the next European elections on the basis of several opt-outs from core EU policies or declarations explaining how the Lisbon Treaty does not affect Irish tax or abortion laws. British diplomats are more cautious, believing a second failed referendum could provoke an EU crisis.
One understands from that that the discussion has moved on from the text of the Lisbon treaty to some improved version that the Irishand, we must add, the other 26 member stateswill be content with. That will be a new treaty and will lead to a new Bill coming to this House and to the House of Commons for approval.
We must be prepared to face the factsthe legal facts and the facts of the worldwhich are that the Lisbon treaty is dead and that there is no possibility of the treaty in its existing form ever coming into operation. Ireland, by its own due process, has rejected it. All the political parties in Ireland accept that result. It is inconceivable that the text, without a change, will ever be put before the Irish people again in a referendum. It is possible that there will be something different in a few months time, but the Government are planning to ratify a dead treaty. I say dead, because the treaty itself so dictates by insisting on unanimous ratification. Nothing in existing law on the Lisbon treaty says that there is some way in which you can deal with it now with less than a 27-member vote.
The other thing that we need to think about and to which the Government have given no consideration, so far as I can see, is the effect on the Bill, of which we are being asked to give a Third Reading, of the Lisbon treaty never coming into effect. I will take your Lordships to that, but I can summarise in advance by saying that the absence of a Lisbon treaty strikes a lethal blow at the Bill as it is. I shall start with the commencement clause, Clause 8, which states:
Section 3 (and the Schedule) come into force in accordance with provision made by the Secretary of State by order.
The Table in the Schedule to this Act sets out substitutions required to reflect terminology after the commencement of the Treaty of Lisbon.
The whole exercise of relabelling and amending existing treaties will not come into operation until the treaty of Lisbon has commencedan event that I submit to your Lordships will never happen. Clause 8(3) says:
that is, in a day or two from now.
Let us look back to see what we have in the rest of the Bill. Clause 1 defines the treaties that we are talking about. They are defined in terms of signature. I make that point in case anyone seizes on it. The clause states:
In this Act the Treaty of Lisbon means the Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community signed at Lisbon on 13th December 2007.
Clause 2, which is headed, Addition to the list of treaties, says:
et cetera. That is the language. We are to add to the list of treaties a treaty that will never have any effect. What, precisely, is Parliament doing in telling everybody who writes a textbook or completes a list of up-to-date legislation on the EU that they are to add to the list of relevant EU treaties a treaty that is, at the moment, completely dead? A new one may come along, but we have not got there. In Clause 3, we have the changes in terminology. I am not going to take any more time. I have referred to subsection (3)
Lord Neill of Bladen: My Lords, I am sorry that noble Lords do not like to be told the legal position. I would have thought that the rule of law would be a welcome doctrine in this House.
Lord Anderson of Swansea: My Lords, is the legal position not the same as that in respect of the Nice treaty, which was rejected by the Irish and is now law?
Lord Neill of Bladen: My Lords, correct me if I am wrong, but the same treaty was ultimately put to the Irish population again. The Irish were told to rethink and came up with a different verdict. That is not what we hear from Ireland today. They are not going to do it again and they will not be insulted by the idea that they might do so.
Clause 4 is headed, Increase of powers of European Parliament. It states:
The Treaty of Lisbon is approved for the purposes of ... the European Parliamentary Elections Act 2002.
That is a dead duck. It does not apply at all. There will never be a treaty of Lisbon. We go on to Clause 5, which is headed, Amendment of founding treaties. It tells us in subsection (1):
A treaty which satisfies the following conditions may not be ratified unless approved by Act of Parliament.
Then there are two conditions, of which the second is:
Condition 2 is that the Treaty results from the application of Article 48(2) to (5) of the Treaty on European Union (as amended by the Treaty of Lisbon).
That condition can never be satisfied, so Clause 5 can never operate.
Clause 6, which is headed, Parliamentary control of decisions, gives a whole list of provisions that will need parliamentary approval. All make reference either to the treaty of European Union, covered in paragraphs (a), (b) and (c) of subsection (1), or to the treaty on the functioning of the European Union, covered in paragraphs (d) to (i). Those treaties are defined as the Lisbon treaty in subsection (4). The effect of that is that no provision other than Clause 1and possibly the clause on commencementwill ever come into force, or bite on anything, if there is no treaty of Lisbon. For Parliament to be asked to give a Third Reading to a Bill that has nil effect, and submit it for Royal Assent, seems entirely wrong.
Your Lordships may sayand I see the smiles of some noble Lords facing methat there has been a big win for the proponents of the treaty. So it is. Everybody in the House knows that every vote has been won by the Government and their allies and lost by the Conservatives. We all know that. We know that the Bill is in a position where, if we were asked to put up our hands, a majority would be in favour. I have not the slightest objection to any parliamentary procedure that could be devised for taking the opinion of Parliament on approving the terms of the Lisbon treaty. However, we ought not to be asked to go through what is now a charade of Third Reading of a Bill that, as I have demonstrated, can never achieve its intended result.
It would be different if someone were prepared to stand up and say, Dont you worry, itll all be put to the Irish population again and theyre going to vote it through, so there is some real substance here. However,
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Lord Neill of Bladen: My Lords, I am about to finish.
Lord Tomlinson: My Lords, I thank the noble Lord for giving way. If he is seriously asking us to do what the Irish have asked us to do, would he not reflect that the Irish have asked us to continue and to complete the process of ratification in this country?[Interruption.]
Lord Neill of Bladen: My Lords, I shall carry on. The last time I had really big support was at a planning inquiry, where I was booed by an entire village. I did not let it put me off then.
We ought not to be doing this. There should not be a ratification or a Third Reading of a Bill that is so crippled by a shot that has gone through it. On whether we should help our Irish friends, I do not know which way they are turning. They are shot to pieces. They say very nicely in a very nice accent to all the other member states, You carry on with ratification. But earlier I heard people saying, This Parliament is sovereign. We take our own decisions here. It is a total irrelevance. The view expressed by the Irish on what other member states should do does not weigh with me in the slightest. We are in London in the Westminster Parliament. We make our own decisions.
Lord Wallace of Saltaire: My Lords, many of us have been reading the Irish Times and the Irish Independent during the past two or three days. A great many things are being said in Ireland. It is not at all clear yet what the Irish response will be. We must respect the Irish decision and the debate which follows from it. We await the response of the Irish Government and the leaders of the Irish no campaign on what they propose to do next.
Sinn Fein has already come up with a list of specific guarantees that Gerry Adams says would satisfy it. They include guarantees against any privatisation of public services, the entrenchment of workers rights and Irish neutrality. I am not sure whether the Conservative Front Bench is happy about that list or about the strengthening of Sinn Feins position in Irish politics to which the no campaign has contributed through its unlikely alliance between socialists, nationalists and free market libertarians.
But, I say to he noble Lord, Lord Neill, the British decision is for us to make as a sovereign Parliament and a sovereign country, and not to hand over to the Irish to make on our behalf. It is the particular responsibility of our House as the revising Chamber
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For many years, the Conservative Party was a responsible Government. When the Danes voted against the Maastricht treaty, in a Statement to both Houses, the Prime Minister, John Major, said:
My right hon. friends the Chancellor of the Exchequer and the Foreign Secretary and I believed that this was the right treaty when we negotiated it. The treaty itself has not changed, nor has my view of the treaty.[Official Report, Commons, 3/6/92; col. 827-834.]
We now have an irresponsible Conservative Opposition. I note that the amendment in the name of the noble Lord, Lord Blackwell, has now been taken over by the Front Bench, in the same way that so many amendments put down by Bill Cash in the other place were taken over by the Conservative Front Bench in this House.
We find it difficult to grasp exactly the way that the Conservative Party now feels on this. William Hague said of the Amsterdam treaty:
even though it was negotiated largely by John Majors Government. On the Nice treaty, he said:
Is not the truth, when we cut through the spin, that the agreement represents three more major steps to a European superstate?.
Now the Conservatives are saying that the Nice and Amsterdam treaties are fine; it is just the Lisbon treaty that takes us one step two far.
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