Examination of Witnesses (Questions 100
- 113)
TUESDAY 27 NOVEMBER 2007
Mr David Heathcoat-Amory, Lord Leach of Fairford
and Mr Neil O'Brien
Q100 Lord Kerr of Kinlochard:
Surely it is rather unlikely that they would, because there would
hardly be qualified majority voting in the Council if, as you
say, an enormous number of national parliaments were against the
measure?
Mr O'Brien: This is exactly the problem. Anything
where it is likely to be relevant is very unlikely to ever happen,
which is exactly the point I am making. If you look at what happened
the first time this system was given a trial run, it was put out
to national parliaments who did object on subsidiarity grounds
and the Commission still went ahead with the proposal at the end
of the day. So the trial run of the system does not give me any
confidence that it will have a meaningful impact over the long
term. If you compare that to what national parliaments are losing
at the same time, for example through the new passerelle clauses,
through the simplified revision procedures, so that the treaty
change in the future does not necessarily involve the consultation
of national parliaments, and all the other changes in the Treaty,
clearly the net balance of a national parliament is hugely negative.
This is clearly a further shift in power away from this place.
Q101 Lord Kerr of Kinlochard:
Chairman, I think we should be clear, and if the orange card system
is used by a sufficient number of parliaments, if we are talking
about legislation, and the Commission nevertheless goes ahead
it is inconceivable that the legislation in question will pass
in the Council.
Mr O'Brien: As I understand the orange card,
the Commission then has to explain why it has gone ahead. What
a terrible thing to have to do?
Q102 Lord Kerr of Kinlochard:
We are talking about legislation. What is your problem? The orange
card comes up from the national parliaments: the Council discusses
it. You are postulating a situation where the large number of
governments necessary in order to get qualified majority voting
would vote in Council the other way from the way their national
parliaments already had. Is that not a rather unlikely situation?
Mr O'Brien: This is the problem with it. You
have to have your national government allow all these national
parliaments the parliamentary time to pass resolutions against
something which they have just voted for. It is almost infinitely
probable that it will never be used.
Chairman: I think this needs further explanation.
Do you want to go further on that one or not?
Lord Kerr of Kinlochard: No. I give up.
Chairman: I think we have a difference of opinion
as to what in fact the impact of the orange card is. We will explore
this further in the course of our inquiry. So far, we have taken
rather a different view from yours Mr O'Brien, on the effect of
it. I think we should move on very rapidly because I do want to
try to touch on some of the other issues.
Q103 Lord Roper:
You have just raised this question of the passerelle. I only make
two comments on it, one that there is a loss of power of national
parliaments. Do you believe that is the case in the light of the
statement made by the Prime Minister when he returned from Lisbon,
in which case he made it quite clear that the Government would
not allow a passerelle change to be made without parliamentary
approval?
Mr O'Brien: When he made a statement to this
House it was not clear to me whether he was proposing that it
was only the Commons that would have this power, which was in
the European Union Bill last time round. It was proposed that
only the Commons would get a say, not the Lords as well. I think
the fundamental problem with the passerelles—sorry, the
simplified provision procedure—is that it is a further move
towards incrementalism in the European Union. One of the things
identified as a problem by the Laeken Declaration was the step-by-step,
salami slicing in incremental integration of the European Union.
This clearly makes things worse. Jack Straw and the Government
objected to these things and said they should not happen. Jack
Straw said it would be awful if you got into a situation where
at 3 in the morning we were all discussing that we would trade
off further moves to majority voting for someone's increasing
quotas in milk or something like that. So there is no doubt in
my mind that this allows the treaties to be incrementally changed
in the future with much less scrutiny. At the moment at least
every five years when there is a new treaty, there is a major
row about it; a package deal, it is very visible and there is
a public discussion about it, whereas if you are gradually getting
rid of all these national vetoes, or if you are gradually changing
the text of the Treaties as you are allowed to do under the new
Treaty, then all these things can happen with very little public
scrutiny and the European Union will be able to advance further
ahead in public opinion than it already is. It is something I
find very worrying.
Q104 Lord Roper:
If there is an opportunity for national parliaments, if they practise
which the British Prime Minister has put forward and followed
in other Member States, to take an explicit vote on the particular
change, then in that case the national parliament would get rather
more power than they do over a treaty, which they cannot amend.
Mr O'Brien: I think that is slightly disingenuous
because you can get to a vote on the Treaty and you can say yes
or no to it, and ultimately you get to say yes or no to the proposal
that is going to come to you under this new mechanism. It is not
like you have any more detailed control. What is happening is
that these large packages of changes are being broken down into
much smaller and less visible streams of small changes.
Q105 Lord Roper:
I am sorry, but do you not have more power if you have power over
specific changes rather than over a package?
Mr Heathcoat-Amory: May I make the point that
most of the passerelle clauses, and there are several in the Treaty
as we know, do require parliamentary approval, but not all of
them. There is one that is frequently overlooked regarding foreign
policy. Article 17 will allow for additional instances of qualified
majority other than those referred to in the Treaty; in other
words that new types of decision making in foreign and security
policy can be switched from unanimity to qualified majority voting,
and there is no reference to parliamentary approval in Article
17. It may be that the British Prime Minister has made a promise
that in his case Parliament will be consulted. Whether that will
survive his passing from office or in different circumstances,
I do not know. Certainly the Treaty does not require a parliamentary
input. I think this is damaging because one of the way of people
trying to sell this Treaty is that it puts us full stop on the
escalator whereby more powers go from national parliaments and
electorates to the centre without anyone really noticing. The
very existence of passerelle clauses where the whole system becomes
self-amending I think is damaging to that perception.
Q106 Lord Roper:
Mr Heathcoat-Amory, just on the point that you have made about
an assurance by the Prime Minister, is this not something which
will be put explicitly into the legislation, and whereas we cannot
amend the Treaty, we can amend the legislation to include an obligation
to bring this to Parliament if a passerelle is to be used?
Mr Heathcoat-Amory: I would certainly support
that amendment. I think we have a very useful alliance here to
amend the Treaty.
Q107 Lord Roper:
Not the Treaty but the Act.
Mr Heathcoat-Amory: I am sorry; I do apologise,
the Act.
Mr O'Brien: I would caution, though, in thinking
too much in terms of Parliament. The significance of this really
is in terms of the public's interest and input into the process.
It may well be that there is a vote here on a wet Thursday afternoon
to change some particular detail. The problem is that it is no
longer going to be visible in the same way that the Treaty is
to the public out there, and they will certainly not have their
opportunity for example to call for a referendum or complain about
it in any other way. I am just thinking in terms of Parliament
and also in terms of visibility and accountably to the public
as well.
Q108 Lord Sewel:
Very briefly, there was a bit of a hullabaloo about putting the
reference to "free and undistorted competition" into
a Protocol. Do you think that that move was significant and do
you think it will have any practical effects that are removed
in that Protocol?
Lord Leach of Fairford: It is hard to judge
at this stage whether it goes much beyond symbolism. It may not.
Clearly the situation in France was what dictated this. I think
if it does go beyond symbolism, which is the second leg of the
question, it would be very serious. Free and undistorted competition
has been a principle within the European Union, the Community,
since I believe the Treaty of Rome. We do live in an increasingly
competitive world. My own business life is in the most competitive
part of the entire world, trading on the coast of China in Hong
Kong which is a very free market. When you see the impact of competition
that the whole world has to face from Asia, not just China, not
just India but all over, the idea of regressive steps would be
very concerning. I have already alluded to the heavy burden of
regulation. The Financial Services Action Plan is going to be
a £19 billion cost to implement for the City of London. At
first it was really hardly noticed in Britain and I think it was
taken very lightly by the Government. And of course the City was
riding very high at the time. We had not had Northern Rock and
the credit crunch and all those problems; £19 billion suddenly
looks not a trivial sum but a very large sum. I believe that the
downgrading of free competition is potentially very difficult.
It is by no means clear, however, how great will be its practical
effect. Do you have a different view?
Mr O'Brien: Only in the sense that some people
hope it will have a different effect. Sarkozy says: "This
may also give a different legal direction to the Commission; that
of a competition that is there to support the emergence of European
champions, to carry out a true industrial policy". There
is certainly hope that this will shift the balance in terms of
the less and free market approach. Whether it will, only time
will tell.
Lord Leach of Fairford: If it were to do that,
then the effects would be really serious. You would see them in
external trade with increased protection. We have already had
trade wars over textiles and leather and the jeopardising of the
Doha Round, and internally you have this wave of legislation and
regulation. It is potentially dangerous.
Q109 Lord Tomlinson:
In the meanwhile, would you accept that the Protocol has the same
legal forces as the rest of the Treaty?
Mr O'Brien: Yes. The argument, as I understand
it, is being downgraded from an objective of the Union to a Protocol.
Q110 Lord Tomlinson:
But it has the same legal force as the Treaty?
Mr O'Brien: That is the argument.
Lord Leach of Fairford: Why move it if it is
no change?
Chairman: I think we have belt and braces here
anyway. It is in Article 3 of the Treaty of the European Union
as well. I want to give Baroness Symons the last word with the
last questions.
Q111 Baroness Symons of Vernham Dean:
Thank you, my Lord Chairman. I do not know that there is a great
more to be said except that we have run through the litany of
the ways you believe that just about every single institution
in Europe is getting more power. We have been through the legislative
reach, the European Council, the Council of Ministers, CFSP, European
Parliament, the Commission and the Court of Justice. Which of
these changes do you really think is going to have the most impact
on this country? If you had to pick out something that you really
do think is the issue that people should be really worried about
or really cheerful about because we all know someone is going
to be really worried, what would it be?
Mr Heathcoat-Amory: I am very reluctant to pick
one because I think the whole Treaty advances on such a broad
front that there is a general continuing transfer of powers and
decision making from national parliaments and electorates to the
centre, which contradicts the aim of bridging the gap between
the two, in my view. If I did have to pick out one, I think the
advance of the Union into the field of asylum, immigration, criminal
justice and policing is what worries me. Of course the British
Government has a claimed red line and a separate procedure for
covering some of this, which may or may not be watertight. I think
it is very dangerous when decisions affecting people's security
and rights over them of imprisonment and punishment are transferred
from a jurisdiction which they do understand, their own national
parliament which can therefore be changed in accordance with their
wishes at an election, to another jurisdiction which they not
only do not control but they do not understand. I think this is
eroding our powers of self-governance to a worrying extent, and
I think the public understand this. I know we must not talk about
referendums but I think it would be an outrage if they are not
consulted on something which is so important that it really goes
to the heart of any constitutional system. Indeed, if they are
not consulted and the Treaty develops in the way this is clearly
intended to, I think that the European Union will face a crisis
of legitimacy in a few years time.
Q112 Baroness Symons of Vernham Dean:
You simply do not believe the statement that the Prime Minister
made that the safeguards on those points, which are he says enshrined
in legally binding Protocols to the Treaty, are indeed safeguards?
Mr Heathcoat-Amory: They did their best but
it is putting sticking plaster over a text which has, lined up
on the side of the Treaty, the Commission, the European Court
of Justice and almost all other Member States. Against that, we
have some very slender and I think legally deficient red lines.
It is very unwise to decide and ratify a treaty and then hope
that your red lines will protect you in future. I think in this
area and others it is very dangerous, and certainly there are
massive ambiguities. The final arbiter will be the European Court
of Justice, which has a record of judicial activism and from which
there is no appeal.
Mr O'Brien: In very short order, I say that
the three significant things are: first, to make it easier to
pass more legislation through all these moves to QMV and also
through the new voting system; second, the new powers of the Court
of Justice, and justice is a very serious problem with the UK's
red line now in so far that if there are measures which amend
currently adopted legislation and we do not want to opt into them,
then we are thrown out of the whole thing. So our red line there
has been even further undermined, and fundamentally our red line
in that area is not strong because the European Court of Justice
is getting jurisdiction over this, something the Government always
said it should never have. The third—
Q113 Chairman:
We asked for one and you have had two. Lord Leach?
Lord Leach of Fairford: I do not care to choose.
Chairman: We have run far over time, which shows
the level of interest that everybody here, both witnesses and
members of the Committee, have in this subject. I thank you very
much indeed for answering our questions. You will receive the
transcript in, I hope, a fairly short period of time. Thank you
very much for participating in our inquiry.
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