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I would plead with the Government not to go down that road of reasoning. Most of us, even those of us moving these amendments, believe it is not in the interest in the European Union or this country to have any major package of institutional reform in the period ahead, yet here the Government are using an argument that is inciting people in the other member states to go in that direction-they can read Hansard too. All they will see is that the noble Lord and his colleague are saying, "Do not worry, none of these mini-referendums will take place; it will all come together in a big package". I ask that the Government not pursue that line because there is no difference between the two sides of this argument. Nobody wishes to argue-I certainly do not-for pushing towards a new major institutional package, but the Minister is making it impossible to avoid one.

Lord Howell of Guildford: My Lords, I fear that that is a good example of taking part of an argument, which I wish to develop much more fully, and giving it a particular boost. That is just one of a whole series of reasons why there will not be referenda over trivia and over small issues, which will come out separately, and why these matters simply will not arise. I could straight away give a long list of other reasons why it will never happen. Where there is no transfer of power or competence anyway, there will not be a referendum. There are plenty of powers already, as the noble Lord, Lord Liddle, has said. Where it does not apply to the UK, there will be not be a referendum; as with the current treaty change going through. Where there are accession treaties, there will be no referendum-not in this country anyway. Where there is codification under existing competencies there will be no referendum. Where there are significant tests-we have yet to debate that in full-there will be no referendum. So there are five other reasons, as well as the question of the package, why we will look at these things in a mature and rounded way.

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It is really quite pointless citing one issue and trying to project it to be the explanation of the whole situation. When you look at the whole situation it is perfectly clear that there will not be a whole series of tiny referenda on complicated issues that people will not want to vote for. That applies to almost everything that has been mentioned in this debate, including-I would love to dilate on it but it is probably out of order-the whole question of the European public prosecutor's office, on which the noble Lord, Lord Goodhart, is a great expert. We are going to debate that in Clause 6. Certainly it is one of many issues that may well come up, but the chances of it coming up as a separate issue as part of a treaty change, to which the Government would then agree and that other nations would all agree to, are very remote indeed-in fact, I would say, non-existent.

At this stage, it might be worth going over some of the essential points from the lengthy debate we had at the start of the Committee stage on the role of Article 48(6) of the Treaty on European Union and the rationale for Clause 3, which I mentioned in an exchange with the noble Lord, Lord Kerr, a little while back. There are two types of treaty change. This does not seem to be totally understood. I will try my best to remind your Lordships what they are. There is the ordinary pattern which requires an intergovernmental conference and the simplified type of treaty change which does not require an IGC. Both of them result in an amendment to the treaty and so both should be treated in the same way.

It is not right as the noble Lord, Lord Liddle, said in the earlier debates that the whole point of the passerelle is to dispense with the paraphernalia of treaty change. It is not true. It has the same elaborate systems of treaty change through the simplified revision procedure as does the ordinary revision procedure. People simply will not understand that because one method of treaty change is being used a referendum would be required yet if the same treaty changes-in this case dealing with powers rather than competencies-were being proposed and agreed under the other type of treaty change, then it would not be required. It is just that kind of incoherent approach which will go against the Bill's aims-they may be disputed by noble Lords opposite but they are our aims-of regaining some of the trust of the British electorate and seeking to reconnect them. It would leave people completely baffled-it would certainly leave many of the experts baffled-and not enlightened at all.

5.45 pm

Several of your Lordships wanted to ascertain what we mean by transfer of power and wanted us to give examples. Again, if I did not give enough examples at Second Reading or earlier in the Committee stage, I will try to do so now. There was confusion over the term "power" relative to "competence". As I tried to make clear at Second Reading and during the previous debate, "competence" is a term set out in the EU treaties, but "power" clearly is not. That is why we have set out in Clause 4(1) what we mean for the purposes of the Bill by the transfer of power. I want to elaborate on that. The first would be a move to qualified majority voting in those areas set out in Schedule 1 to

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the Bill which are currently decided by unanimity, consensus, or common accord. It is a long list in that schedule, I agree, but that is what the schedule is about. For example, there is the removal of the veto on legislation proposed under Article 77(3) of the Treaty on the Functioning of the European Union relating to passports and identity documents where potentially a piece of legislation could lead to the introduction of an EU-wide identity card scheme or a common European passport.

The second would be any proposal to amend or remove one or more of the emergency brake provisions of the treaties, which we will look at in much more detail when we come to Amendment 21.The third would be if a treaty amendment conferred a new or extended power on an EU institution or body to impose a requirement or obligation on the UK, or removed any limitation on such a power. That indeed would be a transfer of power. The fourth would be if an EU institution or body were conferred with, or empowered with, a new or extended power to impose sanctions on the UK. It is the last two transfers of power covered in Clause 4(1)(i) and Clause 4(1)(j) which are subject to the significance condition, to which I will come.

Some of your Lordships expressed the view that the giving up of the veto was not a transfer of power. That is a good point. We disagree with it. We believe it clearly is and is seen as such in public debate and in public concerns. Giving up a veto would remove the UK's powers to block legislation in sensitive areas and has done so in the past. To be clear, we are not proposing a referendum before the UK can agree to legislation based on articles in Schedule 1. We are proposing a referendum before the UK can agree to a treaty change giving up its right to veto such legislation. That is where a transfer of power would take place.

Perhaps we should also be clear that there is no consensus or appetite in the EU to remove these vetoes, and this Government would not agree if there was. We also made clear that we were confident that this would not lead to referenda on trivial issues, a matter to which I have already referred. As a further safeguard-I mentioned it in the list in replying to the noble Lord, Lord Hannay, a moment ago-we have proposed the significance condition in order to ensure that referendums would not be held on proposed transfers of power when they are on matters of little significance and where a referendum would clearly not be appropriate. I hope that meets at least some of the many observations of those who appear to be convinced that there would be an endless stream of small referenda.

We have proposed to limit the extent of the significance condition in Clause 3 only to Clause 4(1)(i) and Clause 4(1)(j), and only in relation to the simplified revision procedure. It is certainly true that the significance test and the significance procedure are limited. This is because under the simplified revision procedure the imposition of a new requirement, or obligation, or sanctions on the UK can be done only within existing competences. The noble Lord, Lord Kerr, was quite right to point that out at the beginning. Under the SRP you cannot transfer competencies but you can without doubt transfer powers. They may be considerable powers and considerable derogations from the authority

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of this country in very sensitive areas, which would not add to the popularity of the European Union and indeed might not improve their administration at all. The significance condition would mean that the Government of the day would be able to distinguish between significant and trivial changes that might not warrant the need for a referendum, and to explain this publicly and transparently to both Houses of Parliament. A good example would be a proposal to allow an EU agency to impose requirements on a national regulator. Such a requirement might well not be significant if it concerned co-operation between member states in the field of education, such as in sharing statistics on the number of hours of teaching for IT across the EU. It would obviously be inappropriate to have anything like that in a referendum.

As your Lordships will recall from our earlier discussions on the simplified revision procedure, one of the constraints of this method of treaty change is that it cannot be used to increase the competences conferred upon the European Union. I am sorry if it sounds as though I am repeating myself, but it cannot be said too often. Now we are providing under this Bill for our Parliament to be given the chance to test that no such increase of competence is taking place, as part of our overall aim, to which we have referred again and again and to which my noble friends have referred in several speeches, of increasing trust and accountability. We will not solve these problems by these measures alone, but we believe that they will make a substantial contribution.

If it were found that the simplified revision procedure had inadvertently been used to extend competence, the only option would be to require the treaty amendments to be resubmitted under the ordinary revision procedure. The EU is a creature of law and must act legally and not beyond its powers, so it would not be appropriate to say that, if a proposal for treaty change goes beyond what is permitted under Article 48(6) but the extension of competence is not considered significant, this change can be allowed under Article 48(6). That is why we cannot accept Amendments 17 and 18.

Amendment 19 would extend the significance test to decisions under Article 48(6) to give up one or more of the vetoes in Schedule 1, or one or more of the emergency brakes listed in Clause 4. Here, again, we are not convinced of the merits of extending the significance condition to cover these two scenarios. That would go the wrong way. The list of areas where unanimity, consensus or common accord apply in the EU treaties in Schedule 1 is a list of what the Government consider to be areas in which giving up a national veto would be significant enough to require the prior consent of the British people. There are a number of other vetoes in the treaties which the Government consider not to be significant enough to warrant a referendum but where instead Parliament would be required to approve such a move by Act, such as Article 355(6) on the Treaty on the Functioning of the European Union and the EU status of Danish, French or Dutch country or territory, which obviously has few implications for the UK and would not touch us.

The Government have already made clear that we consider the addition of a significance condition to be useful to help guard against referendums on trivial

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issues-a matter that has so concerned your Lordships-but we have also made clear that we consider that the Bill should set out as clearly as possible where a referendum should and should not be required in the future, in whatever form in which it actually came in front of this nation and other member states throughout the European Union.

As part of the Government's wider aim to reconnect the British people to the decisions that are being taken by Governments on the EU, we have made it clear that we want to play a perfectly straight bat and set out precisely where a referendum would or would not be needed. A significance condition with a wide scope, for which these amendments push, would do little to achieve this ambition and would even exacerbate the problem by increasing cynicism and inconsistency, as each time a treaty change is proposed the British people would know that it would still be down to the Minister to decide whether he or she, or the Government of which he or she was a member, thinks such a treaty change is significant enough in their view to put to the people. That is precisely the status quo that has led to the sensation of what has been called competence creep but which can also be described as power creep-a feeling that stealth and non-transparency are prevailing-and which has undermined the general public consensus on the virtues and achievements of the European Union of the kind that exists on the virtues and achievements of NATO, of the United Nations and of the other great institutions of the 20th century but that has not been accorded to the European Union.

Instead of the clarity and transparency offered by the Bill, the amendments would leave us with the distant and disconnected approach, described by my noble friend Lord Risby and others, that has driven UK approval of these decisions in the past. All the long-standing accusations of decision-making behind closed doors without public consent would therefore still hold true.

Baroness Williams of Crosby: I thank my noble friend for giving way for a moment. How would he escape from the horns of a very difficult dilemma? If, on the one hand, Ministers, in order to avoid a referendum, had to tell themselves that something was not in the national interests of Britain, would one not find oneself subsequently an extremely weak force in the European Union? If, on the other hand, they decided to press on with something that they regarded as being in the national interest and that would attract a referendum, would they not find themselves subject to the kind of fragmented referenda that we discussed earlier and which the Minister described earlier in his own speech?

Lord Howell of Guildford: I do not think that that would be the case, for the very good reason that the great issues that concern our national interest can be delivered very largely by the co-operation and development of close working within the existing competences of the existing treaty. My noble friend has in her mind some thought that new treaty requirements would indeed come along that would somehow be in the national interest but which Ministers would be reluctant to push for fear that they would have to expose them to the British people. There might well be issues in the

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future, although I cannot see any countries at the moment being terribly willing to go through the complex treaty procedure for them, which Ministers believe are in the national interest and of value and which can be pursued only by treaty change. In that case, they would rightly be required first to come before both Houses of our Parliament so that it could be explained whether they were significant or not. If they were significant, they would then be required to be put to the test of a referendum, with the Government arguing that these changes, or this package of changes, were necessary to improve the national interest and the strength of this country. That is the kind of debate we should have had over the Lisbon treaty, but of course we did not.

Lord Dykes: My Lords-

Lord Howell of Guildford: No, I am not going to give way again, I am afraid. We have had enough interventions.

I was concluding by saying that all the long-standing accusations of decision-making behind closed doors without public consent would therefore still hold true if these amendments were accepted and the wider and wider number of decisions were left to the judgment of Ministers as to whether they were significant. There are concerns, as I have said, that creeping power and creeping competence are not being properly debated and explained and not justified as being in the national interest, and have weakened the European cause.

People talk about the need for "reconnection"-that phrase came up. We have to be realistic and accept that reconnection has failed. It is failing here in this country, although we are not the only country in which it is failing. Some noble Lords seem to want to continue as before and seem to be happy to see a continued advance of European treaty changing, competence transferring and power transferring, which are precisely the trends that have so undermined public trust, weakened the European cause and made the European Union today in need of reform and less well positioned to meet the colossal challenges of the future than it should be.

I must say that I hope that some noble Lords who are my noble friends, and noble Lords who I greatly admire, will not be offended if I see them as the last knights or the lost lords of the old Europe, of the Euro elite. They are the ones who want to go back while the world goes forward, and indeed I myself sometimes have the same wish that things could go back, but they cannot. We are now in the information age. In the age of the internet and the website, the age of public empowerment, those ideas are as out of date as the Teutonic knights with their armour and their glories. So I urge the noble Lords who have moved and spoken to these amendments to withdraw them and to understand that we are living in a changed age in which the requirements of a strong and democratic European Union will change in themselves and will require new and agile legislation, understanding, and a new connection with the people of Europe.

6 pm

Lord Liddle: My Lords, we have had a long debate on a series of relatively small amendments designed to improve the Bill, but it has been a very interesting one.

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Three weeks ago, when we had our first day in Committee, I have to say that I felt a bit sorry for the noble Lord, Lord Howell. He cut a rather lonely figure, with no one on the Benches behind him coming to his defence. I thought that he was having difficulty persuading the House that the Bill before us is essentially as he described it: a pro-European measure. In the mean time, the Government have called in their reinforcements. We have heard speeches from the noble Lords, Lord Waddington, Lord Flight, Lord Risby and Lord Hamilton of Epsom, all defending the Government's position. I wonder if the Minister feels any better as a result of the people who have come to his aid, because my reaction to what they said is that if they-the noble Lords, Lord Waddington, Lord Flight, Lord Risby and Lord Hamilton of Epsom-truly represent balance and the moderate centre on these issues, then God help us and particularly God help Britain in Europe. The only reason that they see their position as balanced is that this Bill essentially does not contain what they really wanted. What they really wanted was an in-or-out referendum on Britain's European membership and the repatriation of powers. I hope that the scales are beginning to fall from the eyes of some of their Lib Dem coalition partners about what really lies behind the motive for this piece of legislation. It is to appease anti-Europeanism-I was going to say Euroscepticism, but it is not scepticism, it is anti-Europeanism in this country.

Lord Pearson of Rannoch: My Lords, does the noble Lord accept that those of us who are described as Eurosceptic are not anti-European? We are against the project of European integration. We love the real Europe, the Europe of separate nations each with its glorious and distinctive past and future, if it could get out of this ill-founded and unfortunate project.

Lord Liddle: I certainly do not want to contradict what the noble Lord has said, but he ought to remember that, loving Europe's history as I do, I know that it is also a history of bloody conflict, of massacre and genocide, which the European Union has played a major part in bringing to an end. I listened to the Minister's supporters speaking from his Benches, and it seems that they all think that the history of the European Union is essentially one of betrayal. So when Winston Churchill called for Europe to unite, that was a betrayal, and when Harold Macmillan decided to take us into the Common Market, that was a betrayal.

Lord Waddington: I wonder if the noble Lord would allow me to put him right on this matter because it was raised the other day by my noble friend Lord Howell. In his great speech at Zurich, Winston Churchill said that he wished America, Britain and even perhaps the Soviet Union to be the godfathers of the new Europe, and he quite obviously was not considering that we were qualified for membership because of our own worldwide interests. He said that Germany and France should bury their differences and build a new Europe of which we would be the godfathers. We want no more of this nonsense of pretending that Winston Churchill committed himself to Britain being a member of the European Union, because he said exactly the opposite.

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Lord Liddle: We can all trade our Winston Churchill quotes, but certainly the thrust of his intervention was greatly to promote the cause of European union. Was it a betrayal when Lord Cockfield pursued the White Paper on the single market? Was it a betrayal when the noble and learned Lord, Lord Howe, fought for the Single European Act in order to bring that White Paper into legislative effect? Was it a betrayal when the noble Lord, Lord Brittan, as a Commissioner, fought tooth and nail to extend the single market? And was it a betrayal when John Major and the noble Lord, Lord Hurd, agreed to the Maastricht treaty, which has led to a more effective Europe on issues such as cross-border crime, freedom of movement, an effective presence in the world and progress towards co-operation in defence? The trouble for the noble Lord, Lord Howell, is that although he is right to say that the leaders of Europe can take Europe forward largely by using the existing powers granted to the European Union, most of those sitting behind him seem to think that those existing powers are a great betrayal. I do not understand the logic of their position.

The noble Lord, Lord Risby, argued that referenda are now part of our political culture. Let us be clear: Members on this side of the Committee believe in referenda on big issues. Were we to join the euro, there should be a referendum. Were there to be some equivalent of the European constitutional treaty, there should be a referendum. But the point of this Bill is not major referenda of that kind, but proposals for, I think, 56 different issues on which referenda could be held. Next week, we will have the first national referendum in Britain for 36 years. This is not a coherent policy. The fact is, as my noble friend Lord Richard brilliantly outlined, that many of the topics which are to be subject to a referendum would just be the subjects of ridicule if we ever got to the point of having such a contest. Indeed, as the noble Baroness, Lady Williams, pointed out, there are grave dangers to our democracy in multiple referenda, which give power to big money because it is big money that wins. That, of course, may be the position in the referendum next week.

I would say that, yes, Europe should largely work within its existing powers and we should not be arguing for big transfers of powers. That is not the purpose of these amendments. Their purpose is to give Ministers pragmatic flexibility to deal with situations in the real world as they arise. I was not at all satisfied by what the Minister had to say about crises. What would Britain do if there was a major banking crisis which affected cross-border banks and something needed to be done at the European level in order to rescue the banking system? This is a hypothetical case, but what would Britain do? How can a Government credibly sign up to measures to tackle the problem if they know that they have to go to the country in a referendum? That is the basic argument for the amendment, which would allow Ministers to sign up to things in cases of urgency.

Listening to the Minister, one might think that there is a lot of pragmatic flexibility in the Bill to decide whether matters are significant. But that is not what the Bill says. The significance test is presently limited to Clause 4(1)(i) and (j). Its application is therefore very limited.

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We are not arguing for massive transfers of powers; we are arguing for pragmatic flexibility within the structure of the Bill, and that is why we have put forward these amendments. Doubtless we will come back to these issues on Report. In the mean time, I am happy not to press Amendments 16A and 16B.

Amendment 16A withdrawn.

Amendment 16B not moved.

House resumed.

Middle East and North Africa


6.12 pm

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, with permission, I will repeat a Statement made by my right honourable friend the Foreign and Commonwealth Secretary in another place.

"Mr Speaker, with permission, I will update the House on recent developments in the Middle East and north Africa.

Britain has continued to take a leading role in international efforts to protect civilians in Libya, and the case for action remains compelling. Gaddafi's regime persists in attacking its own people, wilfully killing its own civilian population. Our strategy is to intensify the diplomatic, economic and military pressures on Gaddafi's regime and, since the House last met, we have made progress on all those fronts.

On the diplomatic front, I co-chaired the first meeting of the Libya Contact Group in Doha on 13 April. The 21 states and seven international organisations represented demonstrated clear unity, with participation from across the Arab world and the African Union in attendance. The group agreed that Gaddafi's regime had lost all legitimacy, that the National Transitional Council should be offered further support and that the UN special envoy should take forward an inclusive political process. I will attend the next contact group meeting in Rome on 5 May.

At the NATO Foreign Ministers meeting in Berlin on 14 and 15 April, I joined colleagues in showing our determination to increase the pace of military operations to enforce UN Security Council Resolution 1973. The 28 NATO member states and six Arab countries that attended, 16 of which are engaged in military action, agreed a common strategy. That is an important milestone in world affairs, a sign of a growing ability to work across traditional regional divisions and a demonstration of the breadth and unity in the international coalition in support of the Libyan people.

Economically, since my Statement on 4 April, further Libyan entities have been sanctioned and the regime is now subject to some of the most comprehensive economic sanctions ever agreed by the United Nations. On military matters, since NATO assumed full control over all military operations on 31 March, more than 3,500 sorties and 1,500 strike sorties have been conducted. This

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action has seriously degraded Gaddafi's military assets and prevented widespread massacres planned by Gaddafi's forces. They remain unable to enter Benghazi, and it is highly likely that without these efforts Misrata would have fallen, with terrible consequences for that city's brave inhabitants. Yesterday, Italy announced that its aircraft would take part in ground strikes and the United States Government have contributed Predator unmanned aerial vehicles to the coalition forces.

Heavy fighting continues around the towns of Brega, Ajdabiya, Yefren and Misrata. The regime's indiscriminate shelling of residential areas in Misrata shows that it continues to target the civilian population. Gaddafi has shown that he has no regard for civilian lives. The International Criminal Court prosecutor has said that there is evidence of a case against Gaddafi for crimes against humanity. We look forward to the prosecutor's report to the United Nations on 4 May. By his actions, it is clear that Gaddafi has no intention of observing the conditions in UN Security Council Resolution 1973 that I described to the House earlier this month. He has repeatedly ignored the ceasefires that he has announced.

Our military action is defined by the UN Security Council resolutions. We are also clear that Gaddafi should go, and it is impossible to see a viable or peaceful way forward for Libya until he does so. The Libya Contact Group's statement made it clear that we and our allies regard the National Transitional Council, in contrast to Gaddafi, as a legitimate interlocutor, representing the aspirations of Libyan people. Our diplomatic mission in Benghazi is working with it. Our special envoy, Christopher Prentice, will shortly be succeeded by John Jenkins, currently Her Majesty's Ambassador in Baghdad.

Last week, I announced our decision to expand this mission with a small advisory team of British military officers. Their sole purpose is to support the National Transitional Council's efforts better to protect civilians by advising on military organisational structures, communications and logistics. They are not involved in training or arming the opposition's forces, nor are they executing or providing operational military advice. This is fully in line with the UN resolutions, with which, I repeat to the House, we will remain wholly in accordance, retaining the moral, legal and international authority that flows from that.

We have supplied vital, non-lethal equipment to assist the National Transitional Council in protecting civilian lives. So far, this consists of telecommunications equipment and body armour. We are considering with our international partners further requests. In the coming weeks, we hope to agree internationally the process for establishing a temporary financial mechanism to provide a transparent structure for international financial support for short-term financial requirements such as public sector pay. Yesterday, Kuwait announced around £110 million worth of support for the NTC.

I am sure that the House will join me in paying tribute to the skill, bravery and professionalism of the men and women of the UK's and allied Armed Forces. Their actions in the NATO operation have saved many lives and their efforts are essential to bringing a lasting

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peace and a better future for the Libyan people, who have suffered so much at the hands of this brutal regime.

The UK is also supporting the other needs of the Libyan people in every way we can. The humanitarian situation in the west of the country is getting worse every day. Many civilians in Misrata lack access to basic necessities, including food, water and electricity. There is a shortage of some crucial medical supplies. That is why my right honourable friend the International Development Secretary announced last week that the UK will provide medical and other emergency supplies and undertake evacuations for 5,000 migrants stranded at Misrata port in squalid conditions. The UK has so far given more than £13 million to meet immediate humanitarian needs, providing funding for medical and food supplies, emergency shelter, and assistance for evacuating poor and vulnerable migrants. In Misrata alone, UK support has given 10,000 people food and 2,000 families water and hygiene kits, and provided essential medical staff. But the regime must guarantee humanitarian access, not just broken promises which then put the lives of aid workers and volunteers at risk.

The wave of demand for change in the Arab world continues to gain momentum in other nations. As I said earlier today, we condemn utterly the violence and killings perpetrated by the Syrian security forces against civilians who are expressing their views in peaceful protests. This violent repression must stop. President Assad must order his authorities to show restraint and to respond to the legitimate demands of his people with immediate and genuine reform, not with brutal repression. The emergency law should be lifted in practice and the legitimate aspirations of the people met. The UK is working intensively with our international partners to persuade the Syrian authorities to stop the violence and respect basic and universal human rights to freedoms of expression and assembly.

Syria is now at a fork in the road. Its Government can still choose to bring about the radical reform which alone can provide peace and stability for Syria in the long term, and we urge them do so. Or they can choose ever more violent repression, which can only bring short-term security for the authorities. If they do so, we will work with our European partners and others to take measures, including sanctions, that will have an impact on the regime.

Given our concerns for British nationals in Syria we changed our travel advice on Sunday to advise against all travel there and to advise that British nationals should leave unless there is a pressing need for them to remain.

In Yemen, the UK welcomes the news this morning that the efforts of the Gulf Co-operation Council to resolve the current political deadlock are close to success. I understand that President Saleh and the parliamentary opposition have accepted the GCC's proposal. This is potentially good news. Both sides now need to come together to confirm their commitment to the peaceful, inclusive and timely transition process that the GCC has brokered. The UK remains committed to our long-standing support for Yemen in these difficult times.

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Although the immediate situation in Bahrain is calmer, there continue to be many credible reports of human rights abuses. I urge the Government of Bahrain to meet all their human rights obligations and uphold political freedoms, equal access to justice and the rule of law. Dialogue is the way to fulfil the aspirations of all Bahrainis. I urge all sides, including opposition groupings, to engage.

In Egypt, which I will visit shortly, we welcome the actions being taken by the authorities to move towards a broad-based, civilian-led Government and an open and democratic society.

In Tunisia, with EU partners we are providing support to help the Government in Tunisia meet the wishes of the Tunisian people. On 11 April, the commission responsible for bringing together opposition parties and civil society approved the draft law for the constituent assembly elections scheduled for 24 July. This is a step further towards free and fair elections and an open, democratic society.

The European Union has a crucial role to play in the southern Mediterranean. The great changes in the Arab world are truly historic and the response from the nations of the European Union should be bold and ambitious. The review of the European Neighbourhood Policy is due to be published in a fortnight. We have been making the case that we have the opportunity to use that policy to help the peoples of the southern Mediterranean achieve their desire for freer and more prosperous societies. A renewed Neighbourhood Policy should see the EU using its economic magnetism to encourage and support political and economic reform in neighbouring countries. A partnership of equals should reward those who make the necessary political and economic reforms, and-importantly-withdraw benefits from those who do not.

Finally, it remains essential that progress is made in the search for a just and lasting solution to the Israeli-Palestine conflict. This is what the majority of ordinary Palestinians and Israelis demand of their leaders. The extraordinary changes in the region are an opportunity to be seized, not an excuse for further prevarication leading to more frustration and discontent.

In our response to the dramatic events in north Africa and the Middle East we will continue to stand for reform, not repression, and for the addressing of grievances rather than brutal reprisals. It is a policy in accordance with our own beliefs, in line with our own national interest and in pursuit of the peace and prosperity of the wider world".

My Lords, that concludes the Statement.

6.24 pm

Baroness Royall of Blaisdon: My Lords, I thank the Minister for repeating for this House the Statement made by the Foreign Secretary on the Middle East and north Africa. We on the opposition Benches join him in supporting the Gulf Co-operation Council initiative to resolve the crisis in Yemen and to achieve a peaceful political settlement. I also associate these Benches with his remarks regarding the continued need for focus on the Israeli-Palestinian conflict and, indeed, on the review of the European neighbourhood policy.

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Every Member of this House will have been appalled by the recent reports of government violence and repression in Syria. First, can the Minister provide an estimate of the number of UK nationals who are in Syria at present? How many are in the southern city of Deraa? It has been reported that 5,000 soldiers and seven T55 tanks entered the city on Monday and attacked the protestors. Have the Government had any discussions with our European Union partners about working jointly, as we ended up doing in Libya, eventually, on contingency plans to try to help to get our people out if the need arises? Of course, I fully support the condemnation in the Statement of the actions of the Syrian Government.

It was only a few weeks ago, on 27 January, that the Foreign Secretary travelled to Damascus to meet President Assad. From these conversations, how likely do the Government judge it that President Assad will heed the Foreign Secretary's calls for restraint and reform? I welcome the Minister's statement that work is under way at the United Nations, but can he provide a more detailed analysis of what progress is being made regarding a statement and/or a resolution from the Security Council? In particular, can he outline what financial sanctions and freezes are being discussed at UN or EU level to make clear the international community's condemnation?

In a statement this morning, the Foreign Secretary said:

"There needs to be accountability for the deaths that have occurred".

What discussions have been entered into regarding the investigation of accusations of crimes against humanity and the call from Human Rights Watch for an official commission of inquiry? Finally, given the strong lead that the Arab League showed in relation to the unacceptability of Colonel Gaddafi's actions, what diplomatic work is being done across the region to marshal unified condemnation of these actions?

While news has subsided slightly regarding Bahrain, the reports of the arrests of opposition figures, deaths in custody, allegations of torture and the denial of medical treatment are extremely concerning. Can the Minister update the House on the progress of the political reform process initiated by King al-Khalifa? Can the Government also tell us what recent discussions they have had with Crown Prince Sheikh Salman bin Hamad al-Khalifa, who, it has been reported, has been close to reaching agreements with the protestors? Britain's historically close ties to Bahrain should give us all the more reason to be clear and unequivocal in our urging for reform, not repression, as a response to popular protests on the islands.

We join the Minister in commending the brave service of our forces in Libya while the House has been in recess. The specific operational steps announced by the Government during that time-providing telecommunications, body armour and 10 military advisers -each had an operational rationale reflecting the new realities on the ground. Although we understand the rationale for these steps, will the Minister now update the summary of the legal advice previously provided, to cover each of the announcements that have been made during the Recess?

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The ad hoc and unco-ordinated manner in which the Government steps were announced, rooted in no clearly articulated plan, has, we fear, served only to increase public anxieties, although in truth none of them is likely to significantly affect the strategic situation in Libya. As things stand neither Benghazi nor Tripoli appears likely to fall imminently to either side. Can the Minister give the House a fuller assessment of the present military situation? I ask this because the spokesman for the Prime Minister's Office stated this morning, in summarising the Foreign Secretary's report to Cabinet colleagues earlier today, that we need to prepare for the long haul. Yet, on the Foreign Office website, there is a press release, published this weekend, entitled: "Foreign Secretary denies claims of stalemate in Libya". The situation on the ground led the US chairman of the Joint Chiefs of Staff, Admiral Mike Mullen, to observe on Friday that Libya is "moving towards stalemate". What information or insight does the Minister possess about military progress that apparently has not been shared with America's most senior military figure?

That brings me to the question of political objectives and the military mission. On 21 March, speaking of Resolution 1973, the Prime Minister told the other place:

"It explicitly does not provide legal authority for action to bring about Gaddafi's removal from power by military means".-[Official Report, Commons, 21/3/11; col. 713.]

However, in the Times on 15 April, the Prime Minister and the Presidents of the United States and France said,

Would the House be correct in understanding the language of this article to mean that, in the view of the British Government, UN Security Council Resolution 1973 cannot be enforced without Gaddafi's departure? Given the explicit commitment to maintain NATO operations so long as Gaddafi remains in power, is a Libya free of Gaddafi now a political aim-one, incidentally, shared on all sides of the House-or a military objective of the British Government?

Can the Minister further explain whether, following this joint statement, American fighter aircraft have been once again engaged in ground assault operations and whether this statement of aims has led to any significant alteration of the US force posture? Can he be clearer on the means by which the Government seek to achieve the outcome that they seek? It is vital to do so not simply to ensure that the Government address the real concerns at home and abroad; crucially, it matters also to convince Gaddafi's henchmen that there is a credible strategy in place to ensure that his brutal attacks on civilians will not prevail.

We seek as broad a coalition as possible for these efforts and, in that spirit, I add my welcome for the addition of Italian fighter aircraft to the mission, as we heard announced today. Can the Minister update the House on the precise number of EU, NATO and Arab League countries that are respectively participating in the military operation? What efforts are being made to expand those numbers further? Do the Government believe that the contact group is proving agile and effective enough to direct the mission?

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Does the Minister agree that the comparison made last week by the Defence Secretary between the present mission in Libya and the Afghanistan campaign, where, a decade on, we have about 11,000 troops in theatre, not only ignores the different order of the threat posed by al-Qaeda and its supporters but needlessly threatens support at home and abroad for the mission? In the light of that comparison, can he assure the House that no personnel or equipment will be redeployed from Afghanistan to Libya, given the continuing national security threat being confronted in Afghanistan?

The Government are acting in Libya for principled reasons, but that does not remove our obligation to look at practical questions. On the rebels, can the Minister update the House on whether any further information has come to light regarding possible al-Qaeda involvement? Amid talk of the long haul, it should not be overlooked that Resolution 1973 contained a number of diplomatic measures and non-military powers designed to maintain the pressure on and isolation of the Gaddafi regime, including sanctions and embargoes. What further progress has been made on this front, in particular to put the financial squeeze on the Gaddafi regime?

From these Benches, the Opposition remain steadfast in their support for the enforcement of the United Nations Security Council resolution. That decision, implemented with professionalism and bravery by both our own and our allies' armed services, saved the 700,000 residents of Benghazi from a grim fate. The continued threat of murderous slaughter in Misrata shows why NATO forces still need to be in the skies over Libya, but we are not and should not be deaf to the anxiety in the country about Britain's present and future role in the Libyan mission. Therefore, as the Opposition, we urge clarity and coherence from the Government's side so as to maintain support for this mission at home and abroad.

6.34 pm

Lord Howell of Guildford: I thank the noble Baroness warmly for the supportive nature of her remarks and for her commitment that Her Majesty's Opposition stand fast behind the UNSC resolution and its implementation. That is a warming and strong message, for which I am grateful. I cannot possibly answer all her questions in detail, but I will attempt to answer those that I managed to write down as she spoke.

On UK nationals in Syria, there are figures, although I give them with some hesitation. It could be from about 700 upwards, but I do not want the noble Baroness to regard that as the final figure, as it is not always easy to gather all details quickly. However, the figure is in that sort of range. We are most certainly talking and co-operating with the European Union at many levels on how to react to the Syria situation.

On what we are doing about the very concerning developments in Bahrain, the answer is that we are in constant contact. We have been talking to Ministers as well as to the chief authorities in Bahrain, urging that they get back to the national dialogue that the King always wanted to argue for and observe standards of human rights as rigorously as possible. We have expressed considerable concern about the reports of torture and other aspects. We believe that our representations have to be constant and strong and we are continuing to press them.

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The noble Baroness raised the issue, which one sees in many commentaries, of the possibility of stalemate in Libya. To my mind and to many of those observing the situation closely, the position is fluid rather than stalemated. There is clearly movement to and fro. One moment, a street in Misrata is in the hands of the opposition and the next it is in the hands of Gaddafi's forces. No one can say that a stalemate, implying some sort of rigid settling-in of defensive lines on either side, has anywhere near been reached. The interventions of NATO in protecting civilians and destroying the weaponry that is killing them, with some precision in many areas, are part of the means by which the situation remains extremely fluid.

In the Statement, the Foreign Secretary reminds us of the words that he rightly used. If I get his words precisely right,

until Gaddafi goes. That has been reiterated by a number of world leaders and is apparently very much the view of the entire Arab League and leading Arab nations. While the UN Security Council resolution obviously does not involve, require or authorise direct attack on the personality of Gaddafi himself, there was a clear statement by the contact group in Doha and by the allies that until Gaddafi goes there will be no solution and no achievement of the aim of the Libyans being able to decide their own future peacefully.

How is that to be done and what are the pressures? The first pressure is in implementing the resolution and doing everything to protect civilians by all possible means. Beyond that, the organisation of freezes and sanctions has been extensive. The movements, by no means fully achieved, towards controlling the financial resources available to Gaddafi and his team are strong. As far as possible, given that many of Gaddafi's funds are under other names or obscure patterns of ownership, those funds are being frozen and individuals in Libya are being named as those who cannot have access to them or admission to other countries.

In addition, pressure is preventing Gaddafi from achieving further revenues from oil sales. There have been some unauthorised liftings of oil on the side, but they may be coming to an end. If he cannot get oil money, he will not get money and he will not be able to buy in weapons, mercenaries or any other of the instruments that he is using to attack his own people. In addition to that, we look for further defections of the kind that we have already seen from those closely around him.

This all adds up to a pattern of international pressures that come particularly from the Arab League. I stress that this is not just an Atlantic, a western or even a European project; it is a united project with the support of a very wide number of countries, representatives of many of which attended the contact group in Doha the other day, including Japan. I cannot go into details about the precise contribution that the various allies, including the Americans, are making, but we welcome the arrival of the UAVs. We believe that they will help to reinforce the protection of civilians, which is the main aim of the whole project.

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Ahead lie fluidity and increasing pressures on Gaddafi himself. Ahead lies a pattern in which the nations and regions of the world, including the Arabs, the African Union-to a lesser extent so far, I admit, although there have been some strong voices there as well-and certainly the responsible nations and democracies of the world, through the UN, are all depicting an end game and a better future for Libya, in which Libyans can decide their differences and carry forward their prospects without the dark and malign influence of Colonel Gaddafi. This is a possibility. To say that it is a probability at this stage is going too far, but it is an aim that can be worked for and is being worked for at this moment.

6.41 pm

Lord King of Bridgwater: My Lords, does the noble Lord recognise that the Statement he has just read is one of the most remarkable that many of your Lordships will ever have heard? It is about complete convulsion in a very important area of the world which threatens very significantly our whole economy and the stability of the region and the durability and survival of an enormous number of people. It is a remarkable Statement in the breadth that it has represented. We know about Tunisia originally and then Egypt; we have been involved in Libya; we now see the situation in Bahrain, Yemen and Syria; and there are uncertainties in other Arab countries, which I will not particularly mention except maybe Morocco and Algeria, where there are concerns and rumblings.

There was some comment made about the Prime Minister's comment that we are in for the long haul. What is absolutely without question is that it is going to be a very long haul whether it comes out well or badly. The economic and security implications of what is happening now are going to be with us for a very long time indeed. There is an old phrase, "The future is not what it used to be". There has been a convulsive change and we may be in the middle of it now or we may be only just at the beginning.

I want to add one particular point. In the first instance the Statement is concerned with the outcome in Libya. Can the Minister comment in particular about the situation in Algeria and the Polisario? What evidence is there that Gaddafi is purchasing a considerable amount of mercenary assistance which may be concealing the fact that the support he has within his own country is rather less than he might seek to pretend?

Lord Howell of Guildford: I am very grateful to my noble friend whose experience in these matters is unquestioned. What he says is right: these are historic developments. They are of course different in the different countries. There is a danger, while there is a certain degree of cross-border infection and contagion, of seeing the political mechanics inside each country as similar, which they are not. Each country is different and I have been reminded of that very vividly having spent the whole of last week in the Middle East.

My noble friend asked particularly about Algeria and its involvement in this. It is something we are watching very closely indeed. We welcome President Bouteflika's announcement that he intends to introduce

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political reforms, including the setting up of a constitutional commission and a revision to the law governing political parties. We hope that is a political reform statement that will be put in practice. There is no clear evidence of Algerian support for Colonel Gaddafi but it is certainly true that in the past Gaddafi has sought friends in that large neighbouring country, as he has sought friends throughout the African Union further south. Some of these friendships probably remain but I do not think I can comment further on the precise posture being taken up by Algeria externally at the moment; internally it is clear that the Algerian authorities are aware of the reform pressure operating on all governments which do not recognise the need for reform and do not recognise that the world has changed and that people now feel empowered to demand the freedoms and justice which they have been denied in the past.

Lord Hughes of Woodside: My Lords, while the Minister has said the Government are resisting mission creep, does he not accept that the greater danger is mission drift? The contact group met once this month largely to reiterate what the policy previously was and it will not meet again until next month. This does not show any degree of urgency in this matter. Does he accept that a lack of cohesion and urgency appears to be shown by ad hoc statements made by Ministers which they contradict the next day? We said we were going to arm the rebels. No, we are not. We were going to train the rebels. Well, not really. Although the Minister has said specifically today Gaddafi is not a target, the Defence Secretary in New York, I think, two days ago said that Gaddafi was a legitimate target. We cannot have this position where we swing from one to the other. While the measures on sanctions and so on are important the fact is the urgency arises in stopping the fighting and the killing as soon as possible. I regret the idea we seem to have settled easily into the acceptance that it is going to be a long haul. A long haul will not really protect civilians. We really must show a greater deal of urgency than at present.

Lord Howell of Guildford: I do not accept that depiction of the situation at all. Of course in all dramatic and violent situations, such as the one that has developed in Libya, it would be the unwise person who predicted exactly what is going to happen next and exactly which path can be followed with clockwork results. The situation simply is not like that.

However, the overall strategy and direction are clear. They are to act within the resolution and to make the obvious point, which has been made throughout the entire Arab world and in parts of Africa and indeed in Asia as well, that there can be no peace and better future for Libya until the civilian killing stops and the chief agents of the civilian killing-notably, Colonel Gaddafi-go. Of course that raises questions of where and how he should go, which are not questions we feel are our responsibility to answer. However, the general trend is a strong one, although the timing is impossible to predict.

The actions are firm and have already been decisive in some areas, although in other areas less so. There are major difficulties where tanks and Howitzer artillery

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and mortar artillery and possibly some revolting weapons as well are being used by Gaddafi's troops inside civilian areas-within the narrow streets of Libyan towns they cannot be picked out. This is the problem of fighting, which is bound to go to and fro. However, I do not think the noble Lord's picture of indecision and drift is a fair one. There is a pattern here of responsibility to protect and responsibility to open a more stable future for this very sensitive part of the Middle East and the north Africa region.

Lord Kilclooney: My Lords, I thank the Minister for his Statement. It has been widely reported that mercenaries from various African countries are now fighting for the Gaddafi regime. Referring to the question of the noble Lord, Lord King, the Algerian supported Polisario Front is reported to have now sent 450 members to fight for Gaddafi's regime. Am I to understand from the noble Lord's reply to the noble Lord, Lord King, that the United Kingdom has made no representations on this matter?

Lord Howell of Guildford: On the broader issue of the Polisario and the United Nations resolutions, and the way that that affects not so much Algeria as Morocco, we have certainly said that we think that the resolutions should be upheld. As for the cross-currents, though-either the one that the noble Lord did not quite refer to of apparent Algerian support for certain aspects of Polisario activity or the Polisario involvement in Libya, encouraged by Algeria-I am afraid that I cannot give him any precise information. I would say that I would write to him, but I am not sure that such detailed information exists in the smoke and fog of battle. Certainly mercenaries have been brought in, drawn from many areas of Africa, who are fighting for Gaddafi and are receiving large wads of money for doing so. That has been proved by some of those captured or killed who have been found to have this money on them.

Baroness Falkner of Margravine: My Lords, does my noble friend agree that the questions that have come from other noble Lords about the Polisario actually concern the no-fly zone and its effectiveness? Will he at least explain to the House why that zone does not seem to extend to the road routes into Libya, which is apparently where these mercenaries are coming from? I understand that maritime routes are being re-examined to ensure that they are sealed, but road routes do not as yet appear to be sealed.

On the broader point, does my noble friend agree that the most intractable conflict in the Middle East is Israel-Palestine? What discussions have the Government had with the Middle East envoy or indeed through the quartet to attempt to do something to kick-start the process again and get both sides to break the impasses and move forward?

On Bahrain, will the Minister tell us at what stage he will believe that we have got to a stage with regard to human rights violations where we might do something more than just implore the Bahraini royal family to sit down and negotiate seriously?

Lord Howell of Guildford: My noble friend raises three questions. The no-fly zone is authorised over Libyan airspace, not over the back channels through

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which manpower and weapons may continue to be supplied into Tripoli and into the hands of Gaddafi's forces. That is not a possibility consistent with strict adherence to UNSCR 1973.

On the Middle East peace process, we are arguing strongly that this is an opportunity, not a time for the Israeli authorities to draw back, hunker down, hope that things will pass over and wait and see. On the contrary, this could be a large and open window through which those who genuinely want peace and a two-state solution, and who want to see Palestine emerge as part of a two-state pattern in a sensible relationship, should now be pressing forward. That is a view that we have pressed very strongly and which is represented by our actions at the United Nations in support of certain relevant resolutions, which my noble friend will know all about.

As for the Bahraini situation, we are concerned about what has happened and we think that the pattern of handling the protests has not been successful or the right path. We have urged that the whole emphasis should be on seeking a national dialogue, which the king himself and some of his advisers always wanted from the start. We think that that is the right way forward. We believe that the concern of surrounding countries, including that expressed by Saudi Arabia in physical form through its support of security in Bahrain, if rightly handled, is part of a beneficial theme, in that we are seeing the GCC countries and the leading Arab regional authorities take seriously the internal security of their own region. The same applies in Yemen, where there may be some hope, as the Statement said, that the GCC solution is going to bring a breakthrough and a pattern of less bloody and less violent development. These are early days, though, and all that I can tell my noble friend is that we are in constant contact with the Bahraini authorities and urging the sensible course, which we believe lies along the path of national dialogue and reform.

Baroness Symons of Vernham Dean: My Lords, one of the striking points in the Statement was the fact that only six Arab countries attended the meeting on 14 and 15 April. There are of course 16 countries in the Arab League, not counting Libya, which might have been there. It is worrying that 10 Arab League countries did not attend. Can the Minister offer an explanation for this? It was of course the support from the Arab League countries for the humanitarian objectives of the action in Libya that neutralised opposition at the United Nations and allowed the Security Council resolution to go forward, so it is enormously important that the support of those countries is maintained during this period.

While we are looking so hard at Libya, I ask the Minister to assure us that we are observing and, as the Statement says, concerned about the carnage on the streets in Syria. It would be difficult to defend going in on a humanitarian basis to stop the wanton killing of unarmed civilians in Libya while doing nothing at all about the newsreels that we have seen of the Syrian armed forces simply gunning down people in the streets in a number of different cities in Syria. We must not be caught on the argument of double standards. It is important that we respond in equal measure to equal problems.

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Lord Howell of Guildford: I understand the sentiments expressed by the noble Baroness, particularly in her last remarks. She is well positioned to know about these matters in an acute and profound form.

Attendance at the contact group of the Doha meeting was by invitation. In a sense, the Arab League authorities represent the whole range of smaller and larger Arab countries; it is their voice that has been sought, and to a large extent secured, in the recognition that one of the causes of the civilian killings is the personality, actions and attitudes of Gaddafi himself. That has come out clearly from the Arab League as a whole. However, I do not think that we expected all the smaller Arab countries to attend the Doha meeting, nor did they want to. I am not even sure that they were invited. The invitation was to the countries that are in a position to make contributions, both financial, as Kuwait has just done, as noble Lords heard in the Statement, and in terms of hardware, as Qatar and the UAE have done, as well as in a variety of other forms, as a major country like Saudi Arabia is interested in doing. The aim of the conference was not to invite every country, large and small, in the Arab region but to ensure that the Arab League as a whole spoke as far as possible for the whole region.

As for Syria, the noble Baroness is completely right. There is murder and mayhem on the streets of Syrian cities, Deraa and elsewhere. Thinking back through history, we all know of the colossal massacre that took place at Hama when the former president, Hafiz al-Assad, was alive-under the aegis, I seem to recall, of his brother, who was the chief police authority there. Sadly, this is not a new phenomenon. Our protests are extremely strong but of course this requires international co-ordination, which we have with the EU and through the UN.

There is also the question of criminal charges being pursued by the International Criminal Court, and I believe that an investigation has opened. That is an independent court that makes its own decisions, but they are certainly ones that we welcome as we watch with horror the unfolding violence that will get the present president, Bashar al-Assad, and his Government nowhere. They will simply move constantly behind the curve, as I was told in the Middle East last week, and they will fail to catch up with the outrage and fury that will simply grow greater the more blood that is shed and the more violence that there is in that country.

Lord Elystan-Morgan: The Minister has reiterated the consistent attitude of the Government to regime change in Libya. However, is it not the case that our own forces, with those of our allies, are taking part in rigorous battlefield activities which, if successful, will have the effect of emasculating Colonel Gaddafi and degrading his capacity to murder his own people and, if that continues, ultimately there will be regime change? Therefore, is this the answer to the question: we do not aim for regime change, but our actions, with those of our allies, could well bring it about, and if that happens we will welcome it?

Lord Howell of Guildford: The noble Lord, with his usual precision and crystal-clear legal mind, has put the matter in a nutshell. This is the way that things will

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go. It is not just about the battlefield activities, the aerial activities, the advisory role and the provision of telecommunications equipment mentioned in the Statement. The international freezing of resources, assets and oil revenues, and the international pressure from every side on the existing Libyan regime, will also be part of the package of forces that will lead in the direction that the noble Lord so rightly described.

Lord Teverson: My Lords, in repeating the Statement the Minister described the Libyan regime as illegitimate for the very strong reason of its treatment of its citizens. Given the violence in Syria that has been mentioned during this debate, do the Government take the same view of the Syrian Government and the presidency of Bashar al-Assad?

Lord Howell of Guildford: I refer back to my observation that each country is seeing a different pattern unfold. If my noble friend thinks about the Libyan pattern, to which he has just referred, it is a country with clearly organised opposition forces holding certain cities and territory against the organised force of a murderous regime, which still holds authority in Tripoli. That is one scene. In Syria, something else is unfolding-a very unpleasant pattern it is-in which the authorities are clearly acting in murderous ways and authorising their security forces to take part in actions that smash up human rights, destroy lives and create still rising tensions. It is not at the same point in the curve and is not the same pattern of development. There could come a time when the shape of things will change in Syria. There could come times when attitudes towards the Syrian authorities will evolve and grow increasingly determined to see changes in the pattern. It could come but you cannot compare like with like at the moment. These are different countries with different patterns of turmoil and political discontent, which all manifest in different ways. We in this country will use our tailored pressures with the EU, our American allies and our Arab and African allies to try to temper these great forces that are sweeping the Arab world, and see that they bring change-but change that is beneficial and not soaked in blood.

European Union Bill

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Committee (2nd Day) (Continued)

7.04 pm

Amendment 17

Tabled by Lord Liddle

17: Clause 3, page 3, line 4, leave out "(1)(i) or (j)" and insert "(1)"

Lord Liddle: My Lords, I will speak to the amendments in this bloc-Amendments 17, 18, 19, 19A and 28. They relate to matters that we discussed extensively in our earlier debate. To help the House, I am willing not to move these amendments at this stage, on the understanding that we will probably come back to these issues of pragmatic flexibility on Report. We have had a very long discussion on this and the best

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thing is probably to move on. However, there may be Members who wish to have a bit of a discussion on whether Clause 3 should stand part.

Amendments 17 to 19A not moved.

Debate on whether Clause 3 should stand part of the Bill.

Lord Stoddart of Swindon: My Lords I had not intended to speak on whether Clause 3 should stand part. However, I wanted to follow the noble Lord, Lord Hamilton, but was not permitted to do so because the Minister got to his feet and obviously wanted to intervene. I was later unable to intervene on the noble Lord, Lord Liddle, who did not seem to want to hear what I had to say. The first thing I want to say is that I agree entirely with what the noble Lord, Lord Hamilton, said. Indeed, he got to the core of the matter. The reason we are in this difficulty today, the reason we have this Bill, and the reason we are talking about referendums is that Parliament, under the European Communities Act 1972, cannot do its job. That is why we have this difficulty.

Under normal circumstances, when great changes take place Parliament is able to discuss and amend. However, when Ministers and the Government agree to hand new powers to the European Union and make a treaty, we can discuss the treaty but we cannot amend its provisions. That is not how Parliament should work. If Parliament is to work properly, the European Communities Act needs amending so that Parliament can do its job. Then, when a treaty-or whatever means of handing further power to the European Union-happens, Parliament can properly discuss the Bill with some effect by moving amendments, voting on them and disagreeing if necessary with what has been agreed by Ministers. In particular there was great concern about Clause 3, which refers to Article 48(6), in another place and-as the noble Lord, Lord Howell, knows-in this place as well. He expressed his grave concern about the possible use of Article 48(6) of the Lisbon treaty.

The whole basis of the European Union is wrong as far as democracy is concerned. The problem is that the more power that is acceded to the institutions of the European Union, the less democratic it becomes. That has been shown. The noble Lord, Lord Pearson, referred earlier to setting aside the provisions of our own Select Committee as well as the Select Committee of the House of Commons. If the Government believe that something is urgent, they just ignore everything that has been said here. What is more, the discussions we have here are long and good; there is no question about that. The European Union Select Committee works extremely hard, takes a lot of evidence and brings forward good suggestions and reports. However, they are either set aside or ignored by the European Union itself. I do not believe that any recommendation made by this House through its Select Committee has been accepted. What on earth is the use of that? The Select Committee makes reasonable proposals which are discussed and accepted by this House but are then not accepted by the European Union. In spite of the fact that the Select Committee is a good committee doing hard work, in the last analysis it has no power.

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Lord Grenfell: I am most grateful to the noble Lord for giving way. However, he has not quite grasped the purpose of the European Union Select Committee. The purpose is not to advise the European Union but to advise the Government. If, in their sovereignty, the Government choose not to accept our advice, there is nothing that we can do about it. However, I do not think you can say that we are not performing our function just because the institutions of the European Union might not accept what we have said.

Lord Stoddart of Swindon: That is precisely what I did not say. I said that the Select Committee was performing its function and doing it very well but-whether it is a case of what the Government will accept or what the European Union will accept-in the last analysis, its recommendations have not been accepted, which is a great pity. Some of the changed arrangements for the Select Committee might make it more effective, but I very much doubt it.

I remind the noble Lord, Lord Liddle, who would not allow me to intervene in his speech, that the peace in Europe has had nothing to do with the European Community or the European Union but has been kept by NATO. The greatest threat to Europe occurred in 1949 with the Berlin blockade. The treaty of Rome was not signed until 1957 although I think that it was thought of before then. The United States and Britain ensured that the Russian blockade was broken; it had nothing to do with any other European state, with the exception perhaps of France which gave a little help. Therefore, it is about time that we stopped talking about the European Community or the European Union being responsible for keeping the peace in Europe-NATO has kept the peace in Europe. I do not know what would have happened without NATO and the American deterrent, so please let us give credit where it is due.

Lord Pearson of Rannoch: My Lords, while the noble Lord is on this subject, would he care to comment on the European Union's record in Yugoslavia?

Lord Stoddart of Swindon: That would take rather a long time. I think that perhaps Germany rather than the European Union had some strategic purpose in regard to the break-up of Yugoslavia, but I had better not go into that at this time. Time is getting on and I have no doubt that noble Lords want to get to dinner, so I shall sit down.

7.15 pm

Lord Kerr of Kinlochard: I apologise as I am standing up. Mine is the first name attached to the Clause 3 stand part Motion on the Marshalled List. The Minister gave extremely courteous answers to the questions that I asked. I am very grateful to him for taking my questions seriously, but I have to say that the answers that he gave do not satisfy me. He has not explained the substantive reason why we need Clause 3 as well as Clause 2, nor has he answered my question about why there is no significance test in Clause 2 but only in Clause 3. He and I agree that you cannot use Clause 3 to transfer competence; you can use it only for things that do not transfer competence. The converse is not

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true. In Clause 2, you could, under the ordinary treaty revision procedure, do things which did not transfer competence. You could do very small things such as changing the number of justices in the Court of Justice. You would have to do that as a treaty change and you would probably, almost certainly given the structure in Brussels and the advice you would want to take from the court, do it with the heavy procedure. Therefore, it seems to me that the significance test ought in logic to apply in Clause 2 unless the Minister's position is that anything, however insignificant, done under the standard treaty revision procedure will require a mandatory referendum.

The minatory warning of the noble Lord, Lord Hannay, about the foreigners who read our Hansard is valid as regards bundling. I would add a second-the idea that, as the Minister said, what will happen is that,

If we are imposing a referendum requirement on that package, it really is an insult to the public. We are asking them to vote on a package, not on the merits of individual measures. It seems to me that the idea of bundling is not just bad practice in Brussels, and not likely to be followed in future in Brussels-people are trying to get away from it-but is also inimical to the idea of a referendum, where the purpose, presumably, is that the people answering the question understand it. If there is a raft of six or eight questions and you get only one yes or no because it is a bundle, that seems to me to be acutely unsatisfactory as a way to proceed.

I also did not hear a satisfactory answer to the point made by the noble Lord, Lord Liddle, about urgency. It is perfectly possible to envisage circumstances where waiting for a year, a year and a half or two years might not be in the UK's interest. Therefore, it seems to me that the Liddle clause, bringing in urgency and national interest, is an extremely good idea. But even if that were accepted, I cannot see any need to have Clause 3. I will not press my point now and I apologise for burdening the House with my arguments at too great a length, but we will have to come back to this on Report. Will the Minister please read what we have said in this debate and my questions and consider whether they deserve serious answers? Will he also please look back to what the noble Lord, Lord Deben, said in his striking speech at the start of our first day in Committee in which, as a member of the Minister's party, he gave strong advice that there would be many fewer problems with this Bill if there could be some movement on the 48(6) procedure in Clause 3?

Lord Empey: My Lords, in the short time that I have been in this House, it has seemed very difficult to have discussions without noble Lords dividing on the basis that they are either for or against the European Union. Virtually every comment seems to boil down to that issue. However, I do not believe that that is right. People should not be put into one box or another; we are in the European Union and these measures-some of which have significant inelegancies, one has to admit-are there for a purpose. When the concept of nations working together is a perfectly

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good idea, when there is evidence that there is practical advantage in that, how is it that the general population do not share that view? Disillusionment has crept in because over a prolonged period of years Governments of different persuasions have made promises on these matters which they simply have not kept. This has built up a resistance; it has been seized on by red tops and tabloid newspapers and become a very stale and futile argument.

Nevertheless, we have to realise that there are certain practicalities. For instance, no subject is better at bringing Members into their places than a debate on Europe. I looked back and discovered that the largest number of Lords participating in a vote was in the Maastricht treaty debates in the 1990s, when 621 turned up to vote-the largest number that had appeared in this House since 1831. This clearly indicates that there is a huge interest and I suspect that it is because people are still on separate sides of the argument. We have to move away from that. We are in the European Community. I do not see any prospect of us being out of the European Community in the foreseeable future, so the issue is how can we make it more acceptable, more flexible and more answerable to the population?

Some very interesting arguments have been put forward about the measures, and we will have them again at Report. I suspect that their purpose is to try to get away from a position where Ministers make promises which they simply will not keep. That has undermined support for the European Union, from which there are many advantages to be had. For eight years in Brussels I gained experience on a modest organisation, the Committee of the Regions. There are Members on all sides of the House who were on that committee, some of them at the same time as I was. I have to say that it was not a particularly successful part of the European apparatus.

Europe and the bubble in Brussels have become disconnected from the ordinary person and that is a most unfortunate development. I fear that if Clause 3 is removed without this Chamber taking a more comprehensive view on what we should do about this disconnect, and if we go back to the old ways where Ministers make decisions and put them through the House under the Whip, then there can be little confidence about gaining the acceptance of ordinary people. The Minister referred to the danger of people becoming elitist-we say that people do not understand things. However, if we put propositions to people then we should jolly well ensure that they do understand. People are perfectly capable of understanding the significance of certain things. I therefore feel that we should not run scared. If you believe in something and you think that it is worth doing as a Minister and as a Government, you should jolly well go to the people and put it before them and ask for their support.

Lord Mandelson: My Lords, I do not want to detain your Lordships so near to the dinner break; I shall make only three observations in relation to Clause 3 and whether it should stand part of the Bill. What we have seen during the course of this debate is a series of false assumptions and non sequiturs advanced to justify the Bill, and in particular this clause, which the Government are bringing forward.

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My first observation is that we must be absolutely clear that there is no intention on the part of any Government or any member state in the European Union to claim further powers for the institutions of the European Union at the expense of member states. If anyone can jump up and point to a position, a policy, a statement, a direction of thinking on the part of any member state that would suggest otherwise, I would be perfectly prepared to hear it. Instead, what you have among the 27 member states of the European Union is not a determination to claim more powers-on the contrary. You have a determination, rightly, to better use the existing powers for the EU and its institutions, with a better sense of strategic direction for the European Union, a better set of priorities which really support our long-term economic and other interests in Europe and a better quality of decision-making on the part of the institutions, including the Commission and the European Parliament, as well as the European Council.

Lord Pearson of Rannoch: My Lords-

Lord Mandelson: If I may persist, I am not going to make very extensive remarks and we have heard a lot from the noble Lord.

On the basis of my first observation there is really no need for this Bill.

Secondly, if there were a move by one or more member states or institutions in the European Union to secure the transfer of more powers to the EU, the Government would not win their case or prevail against this argument or mood or sentiment by picking up the blunderbuss weapon that such a referendum would represent. For the Government to persuade others to their point of view, they need to use argument, they need to use persuasion and negotiation. If we were proposing something and another member state said that it was having nothing to do with this and was, indeed, going to put us over a barrel and blackmail us into submission by holding a referendum in its country that would bring the whole thing to a grinding halt, do you think that we would give in to that sort of blackmail or pressure? Of course not. We would want to hear the argument, we would want to be persuaded, there would have to be negotiation. That would be the case if the opposite situation arose.

I slightly hesitate to make my third point as I always fear I might go too far in conceding too much to the Government, but judging by their record to date as far as Europe is concerned, they are in reality and in practice adopting a largely pragmatic and common-sense approach. Why on earth would they allow themselves to be diverted in this ridiculous way by an absurd Bill, simply to console and accommodate the extreme Europhobic views of a portion of the Tory party? Much better, in my view, to go back to what the Prime Minister said in an earlier incarnation when he was leader of the Opposition. David Cameron used to say that what we need is a strong, determined, focused European Union with all the combined strength that it can bring to address the really great global problems and challenges that we face in the world. I remember

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him writing an article in the Sunday Telegraph where he talked about the needs of global growth and tackling global poverty; the great challenge of global warming, the insidiousness of global terrorism for which, he said, we need a strong European Union in order to combine our strength to address these great issues. How right he was.

I wish only that the Government would revert, in time and in rhetoric, to those words and that sentiment expressed by the Prime Minister in an earlier incarnation. Instead, we are grinding through the Committee stage of the Bill, trying desperately to put the equivalent of lipstick on a pig. Let us be honest, these amendments will make the mildest and most modest difference to a pathetic and inadequate Bill. I hope that the Government will recognise this, see sense before it is too late, and resolve to get on with following their largely pragmatic and common-sense approach to Europe that has, in the main, characterised their policy since the election.

7.30 pm

Lord Pearson of Rannoch: My Lords, as the noble Lord, Lord Mandelson, did not take my brief intervention, which is slightly against our school rules-he is something of a new boy, so I of course forgive him-I would just comment that it is of course true that if the corrupt octopus in Brussels does not want or try to take any more powers, it is because it does not need any. As the noble Lord, Lord Waddington, pointed out today, and as I have often pointed out in the past, you have to look only at the European Union's use and abuse of Article 308 to see how it takes powers, even when they are not clearly sanctioned by the treaties.

My main point is to the noble Lord, Lord Empey, who extolled the virtues of governmental collaboration. We all agree with governmental collaboration, but I am afraid that that leads me to the question I put to the Minister in our earlier debate. I do not expect him to answer now, but I would like to keep it on the agenda, because he moved magnificently from the proceedings on the Bill to the Statement, and then straight back to these proceedings. Perhaps he therefore has not had time to consider my point, which was echoed by my noble friend Lord Stoddart. It was that the idea behind the European Union-the object of the exercise-is precisely that the nation states should lose their national democracies. It is precisely that the nation states were responsible for two world wars and all the rest of it, and they therefore had to be emasculated and diluted into this new form of supranational government, which is not working.

The euro-a subject that noble and Europhile Lords are going out of their way to avoid-was never an economic project, as I have pointed out many times over the years since its conception. The euro was designed as a cement to hold the emerging mega-state together. The euro is in deep trouble. With any luck it will not be with us in its present form for much longer. However, that does not get us away from the original project of European integration, which remains highly dangerous and is finally being rumbled by the people of Europe. Quite frankly, the sooner the whole thing collapses and we go back to intergovernmental

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collaboration, as extolled by the noble Lord, Lord Empey, and others, with democratic nations freely trading and collaborating together, the better. It is impossible to think of any so-called achievement of the European Union that could not have been achieved by friendly intergovernmental collaboration among the consenting democratic nations that the countries of Europe, thankfully, are. I want to keep that deep question on the Minister's agenda, and I trust that we can address it before we conclude on the Question that the Bill do now pass.

Baroness Symons of Vernham Dean: My Lords, I should like to talk about Clause 3 standing part of the Bill, if that is agreeable to your Lordships.

The EU factsheet that the Government put out stated that the Bill is designed to strengthen the connection between the British people and the European Union. Actually, Clause 3 seems to be almost perversely designed to do the exact opposite of that perfectly reasonable ambition. The noble Lord, Lord Waddington, who, sadly, is not in his place, said that those of us who had supported the amendments to Clause 3 were in denial about the lack of popularity of the European Union. I am afraid that that is simply not true. I agree with much of the diagnosis about the EU's lack of popularity, but I absolutely disagree with the treatment that the Government are putting forward by means of Clause 3.

The exceptions to the referendum lock are very limited. On most issues, that lock is unbreakable, as was pointed out earlier. It is enormously strict, and the purpose of the amendments has been to give Parliament greater flexibility in respect of whether or not a referendum is necessary. The Government are on record as saying that referendums should be kept for exceptional issues and important decisions that ought to be taken on a nationwide basis.

In an earlier debate in your Lordships' House, the noble Lord, Lord Williamson of Horton, described this as a "watershed" Bill. The measures in Clause 3 are watershed measures that need to be tempered by greater flexibility-the sort of flexibility that the amendments provided for-that will maintain the authority of this Parliament, which would otherwise be hugely undermined. We are a parliamentary democracy; that is the basis of our government. This Bill drives a coach and horses through that concept.

The noble Lord, Lord Hannay of Chiswick, said that it cannot be denied that the frequent use of referendums will seriously damage the legitimacy of Parliament. I think that the situation is much worse than that. The measures in Clause 3 will engender enormous cynicism among the British people if they are asked to take part in referendum after referendum, as the noble Baroness, Lady Williams of Crosby, said. Worse, there will be not just cynicism, but ridicule-the worst of all possible weapons that can be used.

In time, Parliament will recognise that that is the case and will probably, therefore, avoid using referendums. The noble Lord, Lord Waddington, said earlier that he would welcome avoiding such referendums, because it would mean that a block on EU decision-making

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could be made. Of course we may be able to block EU decisions in order to avoid a referendum, but other countries may have decided to go ahead under the enhanced co-operation provided for in the Lisbon treaty. The Minister has not answered that point. There is no such thing as an absolute block in many areas because of the provisions of the Lisbon treaty in allowing for that enhanced co-operation, and I should be grateful if the Minister said a little more about those provisions and the likelihood-indeed, some would say, the inevitability-of them being used. If that is the case, this country would be pushed to the margins of Europe again-as a result, distancing the British people even further from Europe and even further from the objectives that the Minister so passionately espoused when putting forward the Bill.

The amendments that we discussed today have been designed to provide that greater flexibility and to give Parliament the ability to look at what really merits a referendum and consider the serious issues on which the people of this country, on a nationwide basis, should be called upon to take decisions. Somehow the impression has been given-notably by the noble Lord, Lord Waddington-that if the United Kingdom blocks a measure, that is the end of it. Those of us who went through the Lisbon treaty know that that simply is not true. On this issue I look particularly at the Liberal Democrat Benches. They are good Europeans. I regret to say that in many ways they have been better Europeans than my own party. That is the truth of the matter, and that they can go along with these sorts of measures in Clause 3 frankly beggars belief.

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, we have discussed the principles and details embraced in this clause at some length and I am grateful for the additional points that have been raised in the stand part debate.

I apologise straight away if the noble Lord, Lord Stoddart, thought that I cut him short or intervened as he expressed his very sincerely held views. I thought that he had commented earlier but I am very glad that he has now had an opportunity to speak. He raised issues that go wider than the Bill, although they are not totally unrelated to it. He raised the question of scrutiny in our two Houses, which is something that we want to strengthen. He is absolutely right that in the past the reasons for not observing or waiting for the scrutiny process were possibly a little too cavalier. These are matters that we have all argued for and there is a constant search for improvement. However, I think that the operation of our own European Union Committee and the European Scrutiny Committee in the other place are commendable. They cover an enormous amount of ground with very great thoroughness. Speaking from this government position, I can say that it certainly is right for the Government to pay maximum attention to that. It makes complete sense.

There is the broader question of the democratic nature of the European Union and the kind of issues that were addressed in the Laeken declaration. That declaration pleaded with the European institutions and national Governments to seek ways to bring European affairs closer to popular consent and to the people so

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that they had a greater understanding of where the European Union benefited its members-as a home club or home team it could achieve greater things in combination-and where it should not necessarily intrude on affairs that were properly the concern of nation states and those close to the ground of intimate local issues, which were best governed and decided at national or local level and possibly not at the loftier level of the European Union. That is a broader issue which we shall perhaps come to.

The European Union, like any great institution and certain institutions of the last century, needs reform. We are now facing totally different conditions from the ones that we faced even a couple of years ago, and so is Europe. Power has moved, wealth has moved and economic activity has moved. The things that some of us forecast 15 years ago, such as the rise of easternisation, as we called it-the rise of the eastern powers-have taken place. That is a question not just of shifting economic gravity but of shifting political gravity as well. In those conditions, Europe as an institution needs to move ahead and the nation states within it need to achieve greater popular support and democratic consensus than they have achieved so far. I shall come to that point again in a moment when I address the views of the noble Lord, Lord Mandelson, which were extremely interesting and stimulating.

I turn, first, to the noble Lord, Lord Kerr. I am sorry that he did not think that my answers were serious. They were intended to be deadly serious; obviously I did not have quite the right tone. However, I emphasised as strongly as I could that we need Clause 3 as well as Clause 2. Clause 3 is needed to address areas where there can be transfers of power and where the special short revision procedure is employed. The noble Lord asked why there was no significance test in the case of Clause 2. The answer is that in Clause 2 we are dealing with treaty changes where competences are shifted or not. In the case of the judges that he mentioned, there would not be a transfer of powers, so there would not be a transfer of competences. If more judges were appointed, the issue would not arise, so there would be no need for any of these procedures at all. Otherwise, all the issues in Clause 2 require treaty changes; and treaty changes, unless they are exempted or unless there is no transfer of power, qualify for and attract a referendum. In Clause 3 the pattern is completely different. There, we are dealing with transfers of powers which are not defined in the treaty, although they are defined to a considerable extent in the Bill. I have listed them again and again until I have become almost short of voice. This is a whole range of powers that can be transferred, and a degree of judgment-although not a vast degree-is required in relation to their significance. That is the difference.

7.45 pm

A little earlier the noble Lord, Lord Kerr, asked about another matter and I did not answer as thoroughly as I would have wished. It concerned the difference between Article 48(6) and Article 48(7). Article 48(6) addresses any part of Part 3 of the treaty on the internal policies of the European Union but only those where

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there is no increase in competence, because an increase in competence would not be consistent with Article 48(6). Article 48(7) is about the removal of vetoes in a whole range of cases, excepting those with military implications, which can be removed only under the ordinary revision procedure, which of course would be governed by Clause 2, and the extension of co-decision by the European Parliament. That is the difference between Article 48(6) and Article 48(7), which the noble Lord asked me about. I hope he feels that those are serious answers.

The central theme of the Bill is that some contribution-obviously this is not a total solution-to the restoration of trust about where we stand in relation to the present and the future of the European Union needs to be established. It has been draining away very fast indeed. A whole range of things, some of which the noble Lord, Lord Mandelson, touched on, can be addressed to reverse this and to bring to the European issue some kind of settled public consensus of the kind that, as I said earlier, is available to this day in relation to NATO, the United Nations and many other bodies. The British people are happy to be an interdependent, integrated part of these great organisations. However, that is not so in the case of the European Union because the hand has been played wrong again and again, the language and tone have been wrong, and the trust has evaporated. We are trying to make some contribution to reversing that situation.

As to the other point that the noble Lord, Lord Kerr, made about bundling treaties, I am not quite clear which side he is now on. Is the criticism that there will be too many individual treaties or that only big treaties tend to come along? We all have in our minds the Lisbon treaty and we took different views-I freely confess that there are different views among the coalition partners-on whether it was or was not like the constitution of the EU. We debated that for many hours and nights, and some of us had very strong views. We recall that the Government of the day, of whom the noble Lord, Lord Mandelson, was, I think, a part at that time, believed that there should be a referendum on the constitution. Indeed, all parties said that there should be, but then somehow it all slipped away and suddenly only one party was prepared to stick to its undertaking that there should be a referendum. It seems to me that that is also going to be the pattern of the future. When we think of the vast complexities of getting treaty changes through the entire system of the 27 members of the European Union-soon to be 28-small changes involving transfers of competence or significant transfers of power to the European Union being proposed and having to go through the elaborate 21 or 24-month treaty change process is so unlikely as to be incredible. We will not see that. Although many people at the time of Lisbon said that they hoped there would not be another treaty, I suspect that there will be a treaty vehicle coming along. It may be a big one and it may include a whole number of issues involving transfers of competence and treaty changes.

Some of us, though not all, thought at the time of Lisbon that such matters should have been put to the British people. That seemed a reasonable thing to do

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and the failure to do so seems to some of us to be part of the further slump in support for the European Union. I note some fascinating figures showing that in some countries which did have a referendum on the Lisbon treaty-Denmark is one-there was some improvement in support and enthusiasm for the work of the European Union as a result of people being consulted. Some of the cynicism along the lines of "This won't help. This will do the opposite", as said by the noble Baroness, Lady Symons, may not be well founded. If it is known that the political establishment-the elite and the governing forces in Parliament-is prepared to justify changes that it believes to be in the national interest in a referendum and to put them boldly and strongly, that will help, not hinder, the European Union.

I agree with a great deal of the tone of the noble Lord, Lord Mandelson, who comes to these matters with his customary realism and acute perception. Of course, the European Union needs to improve its operations. In many areas it is not delivering and is unable to be the combined, focused, united group that many of us wanted to see since the earliest days when we went to the Avenue de la Joyeuse Entrée in the early 1960s before the UK began to think about membership. Some of us dreamt that the kind of Europe that would emerge would be flexible, effective and able to come together on a number of issues. It has done so. It has agreed great things but in some areas it has run into increasing public cynicism and doubt, and in others it has clearly overplayed its hand.

The noble Lord, Lord Mandelson, said that persuasion and negotiation are required, which is absolutely right, and it would be so if next time we had a referendum on a substantial block of proposals for further reform of the European Union, particularly if they are the kind of proposals that I would like to see. They would be carried but that would need to be by persuasion and negotiation. The noble Lord, Lord Mandelson, talks about using a blunderbuss, but when Mr Blair suggested a referendum on the European constitution-it was riddled with all kinds of provisions for competence transfer, all of which eventually went ahead under the guise of the Lisbon treaty-did he think that that was a blunderbuss? I do not think that it was; it was a perfectly sensible prospect that was never put into action, although it was in France and the Netherlands, for arguing the next stage of development for the European Union. If we want a strong, focused Union, I should have thought that requirement number one was the closer involvement between the institutions and the people, which means a more politically supported European Union understood for its values and its limitations, and that is seen as an effective and balanced organisation of which we the British are proud to be members, as we hope are the other 27 members. All of us in many areas, though not all, face the enormous challenges of the modern world.

The noble Baroness, Lady Symons, spoke about trust. We just have to disagree on that. We do not believe that the trust is there and we shall begin painstakingly to put it back, which is why I want the Bill to become the pattern and the way of things not only in this country but increasingly in others, many of

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which already have their own referendum provisions in certain instances and very elaborate filters in the approval of any treaty changes or transfers of power. We want that pattern to go forward and we think that it will help to build the trust that is clearly not there.

Noble Lords referred yet again to the frequency of referenda. For the reasons I have described again and again, if there are no transfers of competence there will be no referendum; when there is an accession treaty there will be no referendum; when Britain is not affected there will be no referendum; when matters are not significant there will be no referendum. There will be referenda when issues covered by the schedule and in the detail of the Bill would produce reasons for treaty change. There would then be, as noble Lords who have been involved in such things know perfectly well, elaborate bargaining, which will go on for many months. There are a lot of negotiations so that some things dear to one country are held in place while others are traded away, and there emerges a bundle, which the noble Lord, Lord Kerr, does not seem to like. A bundle of proposals for the further reform of the European Union will emerge. We-all parties-will fight for a pattern of reform that entrenches freedom, justice and more democracy. I hope that we would get the support of other member states in that direction.

That is what will emerge and it will trigger referenda, as it will probably contain further proposals of transfer of competence. It may not but if it does it will trigger a referendum. I do not see that there is any worry about the so-called blocking of decisions. With a veto behind us we often negotiate vigorously on all sorts of decisions and we will join eagerly in the decisions that benefit this nation. We do not need treaty changes, threats, cajoling, blackmail or anything else to be effective negotiators in Brussels, as the noble Lord, Lord Mandelson, probably knows better than all of us put together because he was effective in certain key areas. How we or other nations handle these matters is completely divorced from how we conduct our affairs in Brussels. The noble Baroness mentioned enhanced co-operation but, frankly, that is not affected by this Bill. We shall be debating aspects of that in a later amendment so I shall not make further comments on that.

Those are the views that I have and which I offer to your Lordships about this Clause 3 stand part. It is a central brick in the building block in this house of trust that one is trying to construct to bring Europe away from its elitist label and its unpopularity, and to ensure that in this country people trust those in charge concerning the sovereignty of this country, which is a role we can play as an active and positive member of the European Union. That is how we see the European Union reforming and making itself fit for purpose, if I may use that phrase, in the 21st century. That is why I believe that the clause should stand part of the Bill.

Clause 3 agreed.

House resumed. Committee to begin again not before 9 pm.

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Accession (Immigration and Worker Registration) (Revocation, Savings and Consequential Provisions) Regulations 2011

Motion to Regret

7.59 pm

Moved by Lord Hunt of Kings Heath

Lord Hunt of Kings Heath: My Lords, the regulations before the House tonight revoke the Accession (Immigration and Worker Registration) Regulations 2004, which regulate access to the UK labour market by nationals of eight of the states that acceded to the European Union in 2004. This is required because the treaty governing the accession of those states to the EU provided that existing member states may restrict such access to the labour market for up to seven years following accession, and this period expires on 30 April 2011.

The UK signed up to the right to the free movement of people within the EU, as codified in the EU directive 2004/38/EC, which included provision for free movement of workers within the territory of member states and the European Economic Area. Since the expansion of the EU on 1 May 2004, the UK has accepted immigrants from central and eastern Europe, Malta and Cyprus. There are restrictions on the benefits that members of those countries can claim, which are covered by the worker registration scheme. The significance of that is that the consequence of revoking the regulations, as we are doing tonight, is the closure of the worker registration scheme.

The scheme was introduced in the UK as a transitional measure to monitor accession states nationals' access to the UK labour market. The scheme did not place any restrictions on the access of nationals of accession states to the labour market in terms of numerical ceilings, resident labour market test or a skills test, but it did make employment subject to a requirement that workers register their employment under the scheme within one month of starting work. Workers ceased to be subject to the requirement to register after 12 months of continuous employment in the UK in accordance with the 2004 regulations.

The reason that I have sought a debate on the regulations is to seek from the Government an assessment of their impact. This matter was raised by the Merits Committee in its 26th report. In that report, the committee drew this statutory instrument to the special attention of the House. The Explanatory Memorandum to the SI states:

"The impact on business, charities or voluntary bodies is negligible. The lifting of the registration requirement imposes no additional costs on business, charities or voluntary bodies and means that employers will no longer need to be compliant with the requirement to ensure that an accession State worker requiring registration has registered their employment ... The impact on the public sector is that the UK Border Agency will no longer incur the cost of administering the Worker Registration Scheme.

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This impact is negligible for the public sector because these costs were recovered though the fee charged for applications".

We are informed in the Explanatory Memorandum that no impact assessment has been prepared.

The Explanatory Memorandum is silent on assessing the impact of the termination of the worker registration scheme on the benefits system. That is what particularly caught the eye of the Merits Committee, to which I pay tribute for the thoroughness of its work and the help that it gives Members of your Lordships' House in understanding what are sometimes the mysteries of statutory instruments. It will be seen from the 26th report that the Merits Committee followed that comment up in correspondence with the Department for Work and Pensions. That response is helpfully published as Appendix 1 to the 26th report, which states that the DWP says that,

The Merits Committee informs us that,

As the Merits Committee comments, it is disappointing that the Department for Work and Pensions is still working on the potential costs following the end of the worker registration scheme.

This debate is an opportunity, first, to encourage the noble Baroness's department to be more forthcoming in its impact assessments in future. Secondly, I hope that the noble Baroness will update us and the House on whether the DWP has made any further progress in its work in analysing the potential costs following the end of the worker registration scheme. I beg to move.

Baroness Hamwee: My Lords, this statutory instrument was drawn to the attention of the House because of the public policy likely to be of interest to it, not because of a defective Explanatory Memorandum. It is not so long ago that we had no Explanatory Memoranda to orders, only Explanatory Notes, which still exist but which are much narrower, technical and often, I must say, opaque. It has only been since 2004, when the Merits Committee was formed, that we have had this type of assistance. I should declare that I am a member of the Merits Committee at present. I should like to take this opportunity to congratulate the committee's advisers, Jane White and Grant Oliver, who pursue with a quiet doggedness issues which arise on too many of the literally thousands of SIs which come before us: things such as lack of reporting on the outcome of consultation, and very often the late presentation of an order so that there is no proper time to investigate before it comes into force.

It should go without saying-although I had better say it-that accountability and access to what the Government do is of the utmost importance. Transparency may be a little overworked as a term, but the concept is not. Information must be available and accessible, not least to avoid any suggestion that what we have-this is not my term, although I wish it was-is not evidence-based policy but policy-based evidence. The Explanatory

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Memorandum is important, because it is a public document, but I think that this Explanatory Memorandum is clear. It is detailed within its own terms. Perhaps it would be good to have an impact assessment to accompany statutory instruments, but, as things are at the moment, that is not usual.

My greater concern is the usual-the importance of joining up different parts of government. The SI comes from the Home Office; it was announced by the noble Baroness. Her statement dealt with the procedures affecting people coming into the UK from the accession states, not the wider impact. The report notes with disappointment that the DWP has not provided an estimate of associated costs. It had seven years to do so. I cannot resist the basic arithmetic, which tells us when six of those seven years were.

The noble Lord has raised a number of interesting questions, and I will, to an extent, repeat them. Given the time that there has been, why have the Government not sought to develop a more accurate measure of the likely numbers? The noble Lord referred to the 11,000-it may be almost 12,000-claims rejected in the past calendar year which apparently would have succeeded with the ending of the transitional arrangements. How confident are the Government that those figures are close to being accurate? How will they seek to verify them? Newspaper articles use the figure of more than 100,000 migrants. If I were to ask the Minister whether she knows where the newspapers got the figure of 100,000 from, that would probably be an unfair question, because we all know that newspapers are not necessarily the most accurate reporters.

Have the Government worked out the cost of the increased access to benefits? It would be helpful if the Minister would say a little about the Jobcentre Plus team to which the noble Lord referred. Is it dealing with just these accession state nationals? I hope not, as I hope this is all in a wider context. I also hope that it is not just the DWP but, for instance, BIS or Communities that have considered the implications of this change. I am not suggesting that they have not.

The point of the transitional arrangements was to monitor accession state nationals' access to the UK labour market. We are told that by paragraph 7(2) of the Explanatory Memorandum. What was the result?

The best argument for a full Explanatory Memorandum dealing with the impacts is yesterday's Daily Express, whose front page screamed, "Migrants Flood Back to Britain". I know the reluctance to let the facts get in the way of a good story, but perhaps fuller Explanatory Memoranda on this sort of issue would assist in ensuring accuracy rather than raising the temperature so unnecessarily and unpleasantly.

The Minister of State, Home Office (Baroness Neville-Jones): My Lords, I thank the two noble Lords who have spoken. Let me try to explain why the Government limited themselves in the Explanatory Memorandum to the points that it made. It was not out of a desire to deny Parliament legitimate information. It had much more to do with the inherent difficulty of getting reliable figures into the public domain. I will try to explain why we were cautious.

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There are two aspects to this. The first is what the future pattern of migration to this country is likely to be and the second is the consequences for the benefits budget. My first point is about migration. Noble Lords will know from experience that making predictions about levels of migration from new member states is a fairly precarious activity. The Benches opposite are abundantly aware that previous efforts to put numbers on expected arrivals after May 2004 were not entirely successful. Indeed, they subsequently chose not to estimate arrivals from Bulgaria and Romania when they joined the EU on 1 January. I have sympathy with that because of the previous experience. We all recall that it was estimated that 13,000 A8 nationals would migrate to the UK in 2004. There is genuine difficulty in this.

However, there are some points that can usefully be made. First, there is the position of A8 nationals who are already here. One effect of the worker registration scheme has been that those entering the UK labour market have generally been prevented from having immediate access to out-of-work benefits if they are seeking work or become unemployed. It is also reasonable to assume that a substantial proportion of those who have arrived since 2004 were already no longer subject to the restrictions because once they have worked here legally for more than 12 months they are no longer subject to the WRS.

The number of A8 workers who have registered under the WRS since May 2004 is approximately 1.1 million. The WRS does not record how many of those who have registered have subsequently left the UK, but statistics from the Labour Force Survey suggest that the number of A8 nationals in employment in the UK in the three months to the end of 2010 was 615,000. It can be assumed that a fraction of that number, but we do not know how many, are A8 workers who have already worked legally and continuously in the UK for more than 12 months and so are not subject to the WRS and therefore the termination makes no difference to their status.

What is more difficult to predict is the extent to which we may experience more or less migration from A8 countries after 30 April 2011. While the Labour Force Survey provides us with some information on the stock of A8 migrants to the UK, it does not tell us about flows over time. The general trend indicated by the International Passenger Survey estimate of long-term migration from A8 countries, which was published by the Office for National Statistics last year, is that immigration levels steadily fell during 2008 and 2009 and then levelled off while numbers of A8 nationals emigrating from the UK rose sharply in 2008 before exits fell off. The result is that net migration from A8 countries appears to have been positive, but not particularly strongly, over the past year.

8.15 pm

What is likely to be the position in the future? The position after 30 April may reinforce the trend, but we simply do not know. There are a number of reasons for that. We do not know about perceptions abroad of job prospects in the UK, and we do know that, as has been demonstrated by authorities such as the World Bank, on the whole migrants come here for employment, not for benefits. We do not know about job prospects

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in the UK or, more importantly, the effect of other countries now having to lift their very restrictive provisions relating to A8 migrants. As we know, they all have to lift them, and some of the countries that had the greatest restrictions are geographically pretty close to A8 countries. I would particularly name Germany. Germany will no longer be able to maintain its restrictions on labour market access, and A8 migrants who might otherwise come to the UK may now chose to go there. That is a material consideration. The changed position may also influence the emigration decisions of those already here. The relative availability of work could be a factor, as could relative exchange rates. If you think through the implications of those things, employment in the German market probably looks quite attractive.

There will be some who have no intention of seeking work, and they may indeed, and this is one of the worries, try to exploit the changed position in terms of access to benefits. It is not on the whole the analysis of why people come here, but it is a danger. That is why we have rules in place to prevent the abuse of the benefits system and to prevent benefits tourism. We are committed to maintaining the security and integrity of the benefits system to ensure that taxpayers' money is spent appropriately. Claimants can access income-related benefits only if they have a right to reside here and are habitually resident.

How far the lifting of the worker registration scheme will affect the benefits system is a complex question. I want to spell out why it is. This is unashamedly complex so I beg your Lordships' indulgence in listening carefully. It is difficult to arrive at a reliable estimate. We are unwilling to mislead by supplying estimates that are falsified by outcomes. In order to produce a reliable forecast for the cost to the benefit system after 1 May 2011, the Government would need to have forecasts of migration on which they can rely. I have just pointed out why there are some real difficulties with that.

As to actual costs-this is where it gets complex-the DWP does not generally record the nationality of those to whom benefits are paid. Indeed, there is a data protection limitation on so doing, which arose when HMRC was recording nationality and a number of welfare groups protested about the irrelevance of that criterion for access to benefits. HMRC and DWP accepted that position and nationality is no longer recorded. However, we are not entirely without information about nationality because the way that claims are assessed means that note is taken at the point of application-for clerical purposes only, not for administration and therefore not subsequently recorded-in order to get the claims into the right channel. That channel goes to the office in Wick, which deals with the claims from A8 and A2 countries. It is also partly for the purposes of ensuring that these claims are proper ones. As a result of the numbers being collected in that way, it is possible to have some information regarding nationality.

Figures have also been published by the Home Office in its quarterly Control of Immigration statistics. My noble friend asked whether we could rely on the figure of 11,000 plus. That is a factual figure. It is not an estimate. Let me say straight away that the figure of 100,000 is one we do not recognise and do not know

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where it has come from. It seems to have been conjured out of the air. We do not believe that it represents anything like the likely outcome, but we have been very cautious about making statements which are going to be falsified about what the future trend is likely to be.

From the number of claims disallowed in the past year, it might be argued that it is possible to produce an estimate of the cost to the benefit system of closing the WRS. If you take that estimate, the additional cost would have been about £30 million, which represents about 0.1 per cent of total expenditure on the benefits concerned. The reason that we are very reluctant to use that figure is that it is a figure that relates to the past. It is a retrospective figure. For the reasons I have tried to set out, relating to our ignorance about the likely flow of migrants and our inability to know exactly how many of those would be claimants, we are very reluctant to base any projection on those figures. It is for those reasons-and not for any unwillingness to inform either House of the likely outcome-that the DWP was so cautious and why the Home Office thought that it was right to be cautious.

My final point is that EEA nationals who are neither in work nor seeking work are generally not entitled to income-related benefits. They have to be self-sufficient while they remain in the UK, and they must have sufficient resources to support themselves and their family members to avoid being a burden on the state. That is another reason why, on the whole, we do not believe that the impact will be all that great. In short, the picture is complex, which means that any assessment of the impact of A8 migration after 30 April is likely to be speculative and could well be unhelpful.

In the light of my explanations, particularly of the difficulty in attempting to quantify uncertain migrant flows and demand for benefits and thus the Government's unwillingness to mislead the House with information that could appear to be helpful but that could turn out to have a spurious solidity, I hope that the noble Lord will not press the Motion.

Lord Hunt of Kings Heath: My Lords, I am very glad to respond to this short debate tonight.

I think the noble Baroness, Lady Hamwee, is absolutely right about the powerful help that we receive from the publication of Explanatory Memorandums. She will be aware that I was the first chairman of the Merits Select Committee. When we first met, relying simply on Explanatory Notes proved very insufficient, so the publications of EMs for all statutory instruments has been very helpful. I very much agree with her comments about the argument for very full Explanatory Memorandums. I certainly support that, and I certainly endorse her comments about the work of the Merits Select Committee. It is very difficult for Members of this House to scrutinise statutory instruments properly without the kind of help that we receive from the Select Committee. I am very grateful to it for the work that it does, and I sympathise with the noble Baroness for the no doubt weekly delivery of statutory instruments that have to be read.

At the end of her speech, the noble Baroness referred to six out of seven years, the implication being that if the DWP had had seven years I ought to accept

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responsibility for six-sevenths of the failure to produce the figures. It is, of course, in the final year that one expects most of the work to be done, which falls under different management.

I am grateful to the noble Baroness, Lady Neville-Jones, for explaining the difficulty in achieving reliable budget figures. I understand the particular challenges that face the DWP, particularly in the light of the data protection issues that she mentioned, and I certainly fully accept the complexity of these matters, but I think that the Explanatory Memorandum would have benefited from the kind of explanation that she gave tonight. The problem is that the EM was silent; paragraph 10(2) simply describes the impact on the public sector as negligible. It would have been helpful if reference had been made to the potential cost of the benefits, and it would have been entirely acceptable to have said that it was not possible at this point to quantify that cost for the reasons that the noble Baroness gave.

I hope that this debate has been helpful and that when the Home Office comes with further SIs, as no doubt it will-it always does-it takes that particular point to heart. I am glad to have raised the matters contained in this statutory instrument tonight, and I beg leave to withdraw the Motion.

Motion withdrawn.

8.28 pm

Sitting suspended

European Union Bill

Main Bill Page
Copy of the Bill
Explanatory Notes

Committee (2nd Day) (Continued)

9 pm

Clause 4 : Cases where treaty or Article 48(6) decision attracts a referendum

Amendment 20 not moved.

Amendment 20ZA

Moved by Lord Liddle

20ZA: Clause 4, page 3, line 26, at end insert ", except where such conferral strengthens the ability of the European Court of Justice to enforce compliance with European Union law"

Lord Liddle: My Lords, there is a danger in this Committee that we will be accused of mind-boggling pedantry on the clauses of the Bill, and I am very aware of that. However, I think that that is because of the nature of the Bill, which is basically pedantic and full of unnecessary detail. The amendment I am proposing would amend Clause 4(1)(i) to make it clear that there would be no question of a referendum arising,

In other words, we are trying to provide that the ability of the European Court of Justice to do its job is a vital national interest of Britain and, if the need arises, we should be able to enhance its powers. Again, this would not be a change of major institutional or constitutional significance, although I suppose it would

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be anathema to our friends who believe that any acceptance of the European Court of Justice's role is a denial of British sovereignty. But for those of us who think you have to have a European court in order to make the structure of the European Union work and hold member states to their obligations, it is very important that we are clear that we are prepared, if necessary, to see the powers of the European Court of Justice enhanced.

I raised this as a matter of principle when I tabled the amendment on behalf of the Opposition, but at the weekend I glanced with interest at the recently published report from Sub-Committee E of the European Union Committee. The summary of conclusions is rather stark:

"We predict another crisis of workload soon ... We agree ... that 'structural solutions need to be found'".

Later in the summary of conclusions it states:

"We do not make any suggestion likely to involve Treaty change because in the short term other solutions are available. But the Member States should not be put off from undertaking necessary reform involving Treaty change when the opportunity arises in the longer term".

The purpose of this amendment is simply to say that we need an effective European Court of Justice and that we should be open to such changes. Frankly, the fact that under the Bill such changes might be subject to a referendum requirement could well mean that a British Government would not agree to changes in the workings of the Court which were actually in the British national interest. That is why I am moving the amendment.

Lord Hannay of Chiswick: I support the amendment of the noble Lord, Lord Liddle. He is about to move a whole raft of amendments which are designed to do what we were debating before dinner-that is, to introduce a little more flexibility into the application of what the Government call a referendum lock. That could be done either by importing the significance criterion into Clause 2 or in the way that is now being suggested. I should just recall that the British Government of the day, who form one part of the present Government, spent a great deal of time in the 1990s doing precisely what the amendment of the noble Lord, Lord Liddle, would do, which is to strengthen the powers of the European Court of Justice. The noble Lord, Lord Kerr, is no doubt too modest to say so, but he played a major role in securing the provisions which enabled the European Court of Justice to levy fines on member states which were in gross breach of their obligations. That was not easy to do; it was certainly in Britain's interests that it be done. I would be subject to correction, but I do not believe that any British Government have ever been caught by those provisions, although quite a lot of other people have.

The amendment is very sensible. I make a plea to the Government to think very carefully between now and Report about ways in which they could introduce a bit more flexibility into the Bill. A whole number of different ways are being put forward in different amendments, of which this is just one. By the time we come back on Report, I hope that it will be possible for the Government to show a bit of flexibility on this, so that future British Governments have a certain degree of flexibility, too.

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Lord Flight: My Lords, I am not quite clear what the amendment is intended to achieve. If it is intended to block any real transfer of power to the European Court of Justice, those of us who believe that it is inappropriate obviously could not support it. However, it seems to me that that is not quite what it is saying; indeed, I am not entirely clear what it is saying. I would therefore be grateful if the noble Lord could in due course be a little more specific about his real objective.

Baroness Falkner of Margravine: Having heard the explanation of the noble Lord, Lord Liddle, I wonder whether my noble friend might be able to tell us whether the powers required by the ECJ, were any transfer contemplated, would be covered by the significance test. My understanding is that they would be.

Lord Wallace of Saltaire: My Lords, I welcome a debate in which we are discussing the amendment in front of us rather than having another Second Reading-type debate as I felt at some point this afternoon we were doing. I can see where this amendment and the other probing amendment in the name of the noble Lord, Lord Liddle, are going, but they are based on a fundamental misunderstanding of the purpose of the Bill. The Bill does not intend to tie a British Government hand and foot to prevent them co-operating within the terms of the treaty.

The coalition agreement accepts the Lisbon treaty. That is, after all, a major step forward. The Lisbon treaty includes a substantial extension of competencies. As the noble Lord, Lord Mandelson, said in his very useful speech before dinner, the task that the European Union now needs to pursue is to use effectively the competencies that it has to make good decisions and then to implement worthwhile policy within those existing competencies. I have been struggling, with this and a number of the other probing amendments that the noble Lord has put down, to discover what particular difficulties these will cause for the British Government.

The European Union, as we all know, has often preferred-or at least those enthusiasts and habitués of Brussels have-to spend time writing new laws and devising new institutions rather than getting on with implementing policies. Part of the hole that we now find ourselves in and the mistrust we have across the European Union is the result of 25 years of treaty amendment, from the Single European Act, through the Maastricht treaty, the Amsterdam treaty, the Nice treaty, the Convention and the Lisbon treaty. They have provided very substantial competencies for the European Union, many of which have not yet been used.

My noble friend Lady Hamwee produced a very interesting paper the other week on the number of powers that the previous Labour Government had acted to put into the law, which have not yet been implemented. There was this great feeling in that Labour Government that when something happened, you passed a new Act or created a new criminal offence. There is now, as a result, a huge list of things on the statute book that have not yet been implemented and which I rather hope that this Government will get around to repealing.

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As far as the EU is concerned, there are now substantial competencies. There are a large number of regulations in force, many of which unfortunately have not been fully enforced or implemented. I am puzzled by what it is that one needs to do with the European Court of Justice for which Article 256-which I have read, again-does not provide the powers that we need. The noble Lord, Lord Kerr, has said-on at least one occasion and I think more often-that we will need to change the number of judges in the European Court of Justice, which will require a treaty change and therefore a referendum. My understanding on this-and I may be wrong-is that to change the number of judges on the court, which we all know is overloaded, would require unanimous agreement by Governments of the member states in an intergovernmental conference; but in terms of this Bill, that would not involve a change to the treaty and certainly not the provision of extra powers or competencies. Yet again, I fear we may be dashing off after a hare that is bolting rather faster than we did.

Lord Kerr of Kinlochard: The number of judges in the court is defined in the treaty. So changing the number of judges in the court requires an amendment to the treaty. There is no doubt about that. Whether that would require a referendum-which is the point that the noble Lord, Lord Howell, was debating with me before dinner-is another question. He may well be right: it depends on whether you view an increase in the number of judges as an increase in the power of the court. If you did, then, under this Bill, you would require a referendum; if you did not, then, under this Bill, you would not. However, it is certainly a treaty amendment.

Lord Pearson of Rannoch: Before the Minister replies, can I ask the noble Lord, Lord Kerr, whether, with his great knowledge of these matters, anything can be done about the quality of these judges? Is it not true that none of them would pass muster as a judge in even the lowest and least distinguished of British courts? Is there anything we can do about that under the treaty? Who decides it?

Lord Wallace of Saltaire: I think the noble Lord, Lord Kerr, is not going to answer. I had something in my notes about how the European Union attracts pedants and conspiracy theorists, but I thought I would not use that on this occasion. As the noble Lord, Lord Liddle, said, we all know that we are sometimes a little pedantic on this. I am a Eurobore of some considerable standing, having helped to write several textbooks on the subject and struggled each time to remember how the treaty articles have been renumbered and so on. We could go on for a great deal of time.

We have heard one or two conspiracy theories this afternoon and this evening. Noble Lords may be aware that I received an even better conspiracy theory today from Migration Watch suggesting that the increased migration under the previous Labour Government was a deliberate attempt to increase the ethnic vote, which would split down for Labour. That is an even

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better conspiracy theory than anything that I have ever heard from the noble Lords, Lord Pearson of Rannoch and Lord Stoddart of Swindon. I encourage the members of the Labour Party to have a go at that when they have appreciated it fully.

9.15 pm

Lord Stoddart of Swindon: I do not think that I have ever said that. I have never accused the Labour Party of gerrymandering and bringing millions of people over here to vote for it. The noble Lord might have seen it in a newspaper but I have certainly never used it.

Lord Wallace of Saltaire: I apologise to the noble Lord, Lord Stoddart. I was in no way suggesting that his imagination had stretched that far. Perhaps I might return to the amendment because I hope that after dinner we are going to keep to each of them. My puzzlement on this one is that I see nothing in the Bill that cramps the powers and competences of the European Court of Justice to enforce compliance with European Union law. Her Majesty's Government support an effective European Union-as did our predecessors, as the noble Lord, Lord Mandelson, said-and strongly support the better implementation of European Union law. We shall continue to do so.

Lord Liddle: There is a lot with which I agree in what the noble Lord, Lord Wallace of Saltaire, has said. I agree with the basic analysis: that the question is of how the powers of the Union, as granted by the Lisbon treaty, should be used. What the noble Lord glosses over in his defence, as it were, of the Government is that the Lisbon treaty covers much of the ground that we need to cover but this Bill is designed to cramp the flexibility that it contains. That is the fundamental issue which noble Lords from around the House are trying to address. We are saying: "Look, we're not asking for a mandate for vast new powers for the European Union. That isn't what the argument is about". We are saying: "The Lisbon treaty? Fine-but there is flexibility within it. Why are the Government ruling out using that flexibility where we, as the United Kingdom, think that it is in our national interest and where the British Government support it?". Those are the conditions which would have to be met.

I am not a great expert on the European Court of Justice, unlike other noble Lords who may be in the Chamber. However, in its analysis of that Court your Lordships' own committee, under the noble Lord, Lord Bowness, pointed to the possibility of the need for some change in the treaty. We ought to be open to that possibility and to a little bit of give on this kind of thing. If the Bill is to have a less troublesome Report stage than it looks as if it might otherwise have, the Government have to find a way of accommodating the view that we need more flexibility on some of these more detailed provisions.

Baroness O'Cathain: The noble Lord stated that the Bill seeks to cramp parts of the Lisbon treaty. Does he not agree that if you look at it in a dispassionate

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way-I know it is very difficult to look at this Bill in a dispassionate way-and use the word "moderate" it might actually be more acceptable. If you felt that this was to moderate rather than to cramp, it is not a physical thing of trying to stop but one of trying to get an acceptable level of agreement throughout. I just wish we could pursue this on that basis.

Lord Liddle: The noble Baroness has made a helpful point. My fear in all of this is that what we are doing through adopting this very restrictive position is putting British Ministers in a position where they would want to agree things that they regard as being good for Britain and they are going to have to say no because they believe that the referendum lock would apply. That is not very sensible where the issues are not of great concern to the public, where there is not real competence creep and where the benefits of change could be quite considerable.

Lord Pearson of Rannoch: My Lords, is that not one of the disadvantages of this amendment? It does nothing to prevent competence creep. If the noble Lord does not agree with that, would he care to comment on the remarks made by the noble Lord, Lord Waddington, earlier this evening and indeed by myself about the way the European Court of Justice has permitted and supported the abuse of Article 308 of the treaty of Nice, as it then was, which allowed Brussels to get involved only,

That was the wording in the original treaty, which lasted right through until Lisbon when it was strengthened in the Court's favour.

The noble Lord, Lord Waddington, mentioned aid to Outer Mongolia as being justified by the Court in this matter. There was urban renewal in Northern Ireland, the co-ordination of our social security systems-quite a big one that-the prevention and aftercare of terrorism, establishing the EU's agency for fundamental rights and a £235 million "information campaign", which to those of us who understand these things is of course propaganda.

The European Court has been able to abuse the treaties in these ways and there are many other clauses such as flexibility clauses which the European Union has abused. Indeed, in 1996 when the use of Article 308 was taken to the Luxembourg Court, in its judgment the Court said that the point of this article was to pursue the interests of the Union. In its judgment it did not mention the first words of the clause:

"If in the course of the operation of the common market".

I really do not see how this amendment is going to do anything to stand up to that sort of behaviour. There is no appeal against the judgments of this so-called Court, the quality of whose judges, I repeat and I am not trying to be amusing, is extremely low and unacceptable. I really do not see why we should have anything in this Bill which enforces the powers of this particular creation. As the noble Lord said when he introduced his remarks, those of us of a Eurosceptic bent would rather they had nothing to do with us or our law at all.

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Lord Wallace of Saltaire: I am sure that the noble Lord knows Justice Scalia of the US Supreme Court well. Justice Scalia has argued on a number of occasions that no American court could ever give credence to international treaty law or to any international court because intrinsically United States law is superior to that of any other state or court-a fundamentally nationalist line that is familiar to us. I am sure that the noble Lord shares it from an English perspective.

I do not wish to pursue that much further. I merely wish to say that my puzzlement on this amendment and on those that follow is that there is considerable flexibility in the treaty that is now before us. It is not the aim of the Bill to tie the British Government or to repatriate powers. We have heard today, even from some of the people behind us on the coalition Benches, that the Bill is inadequate and that what they wanted was repatriation and a reduction of the powers. That is not what we planned. What we are asking for is a pause. Pauses are sometimes used to try to rebuild public confidence in a range of different policy areas and it seems entirely appropriate that, after the considerable extension of competence that the EU has been through over successive treaty changes, there should now be a pause.

We should draw a line under the conspiratorial suspicions and fears-the noble Lord, Lord Liddle, used the word "fears" about his views on what the Bill might have behind it, underneath it or somewhere in a back cupboard-that Brussels is going to slide things past us by saying, "Let's work within the existing treaties for the foreseeable future and then, when we are absolutely clear that additional powers or competences may be needed, we will return to this process". However, I hope that all Members of this House will agree that we have spent far too long with Governments and members of the European Commission and Parliament who love discussing institutional change-much more than they wish to discuss real policy outcomes. What we need to do now in the EU is to improve our real policy outcomes using the substantial amount of competences that we now share. I encourage the noble Lord to withdraw his amendment.

Lord Liddle: I shall of course withdraw the amendment at this stage. What I find puzzling, though, is that when the Minister reads the Bill he sees in it lots of flexibility and possibilities for dealing pragmatically with the challenges that arise but when I and other noble Lords, such as the noble Lord, Lord Kerr of Kinlochard, and the noble Lord, Lord Hannay, read the Bill we see real inflexibility and an attempt to tie a British Government down in a way that is contrary to our national interests. I urge the Minister to have another think about this. Although he is a highly intelligent man who knows a lot about the European Union, his perception of the Bill is not shared by some of the most formidable experts on these issues in the country. I hope very much that the Government will have another look at these matters when we come to Report. I beg leave to withdraw the amendment.

Amendment 20ZA withdrawn.

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Amendment 20ZB

Moved by Lord Liddle

20ZB: Clause 4, page 3, line 28, at end insert ", except where such conferral strengthens the ability of the European Commission to enforce European Union competition, state aid and single market rules"

Lord Liddle: This is a similar amendment, which is an attempt to insert in Clause 4(1)(j) an exception of where a conferral of powers would strengthen the ability of the European Commission to enforce European Union competition, state aid and single market rules. Why move this? This is a clear national interest. The Prime Minister has just produced a great glossy booklet about the single market, which he has sent around the chancelleries of Europe to convince his partners that Britain is fully engaged in the European Union. It is a central interest of the United Kingdom. We face a constant complaint that there is, in practice, a lack of a level playing field within the European Union. To enforce the single market, we are largely dependent on the ability and strength of the European Commission in enforcing its rules. I am not saying that immediate changes to those rules are required, but we should have the flexibility, again, to look in a positive light if proposals are made. Again, these are not fundamental issues that involve transfers of powers. These are issues where action could well be in the British national interest, giving us something we want: a deeper, more integrated single market that is good for British business.

We all know that there are areas of the single market where action is much needed. The services directive has been passed; how will it be enforced? The Commission says that it will act. What will be the result when it tries, and what conclusions will be drawn from that? We do not know at this stage. We should be open to seeing what might have to be done to make the services directive effective. Similarly, on the Commission's competition powers, I should like to see a more proactive European Commission in enforcing competition. However, we do not know whether the existing procedures will prove adequate to the purpose. On state aid, again, there is a very difficult balance to be struck between too much interference in the minutiae of state aid-activities by member states that should not go anywhere near Brussels-and the need to create a level playing field for the future. All I am saying here is that there are issues that might, in future, require us to accept changes. We should be open to that, rather than ruling them out. That is why I beg to move this amendment.

Lord Waddington: Surely there is a point to be made with regard to this amendment, which could have been made with equal force about the previous amendment. It is not a mere drafting point. You may have a conferral of power that strengthens the ability of the European Commission to enforce European Union competitive state aid and single market rules, but also has other very serious consequences. This is just one of the examples where you have to be very careful to make sure that one power is not used for a different purpose. It is plain-and not just a question of bad

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draftsmanship-that if you were to do this, you would allow the conferral of a power that did a lot of mischief as well as the things that the noble Lord rightly wants to see done.

Lord Davies of Stamford: My Lords, I support my noble friend's amendment but let me first deal with the point that the noble Lord, Lord Waddington, has made. It is clear that any powers can be abused, and it is clear that any suggestion that powers should be changed or extended in any way should be the subject of lively debate among member states in the Council of Ministers, as has always been the case. Only when we are satisfied that something is in our national interest should we consent to any proposal from the Commission or anybody else. That is how the European Union has always been conducted and, I trust, always will be conducted. I do not think the fact that a power can always be abused is a reason for not providing for the possibility that we might need to adopt it or to grant it to the European Union.

As my noble friend said in introducing the amendment, the inspiration for this amendment is similar to that which led to the previous one. I rise to speak particularly on this amendment because it deals with the single market. That is an area where I always thought that there existed an all-party consensus-this was true until very recently-that a positive, what you might call forward, policy on the single market was in the interests of this country. Indeed, I remember a time when the Tory party took enormous pride in having created the single market under Lord Cockfield and Jacques Delors who, with the strong support of Margaret Thatcher, brought through those 300 directives and created a single market. When I entered the House of Commons as a Conservative, as the House knows, we all felt-I felt this, as did most of my Conservative colleagues-a great sense of pride that this was a great Conservative achievement. Now we have a situation in which the Tory-dominated coalition Government are trying to bring an end to this forward policy. When I say "forward policy" what I mean is an acceptance in principle that the best way we are likely to be able to achieve our national purposes in the single market area is by according strong regulation-making and enforcement powers to an objective central authority-in this case the European Commission but also the European Court of Justice.

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