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I turn to the amendments. On Amendments 7 and 8 the issue is not so much the end point that they seek to achieve as the practical implications that they would carry if they were accepted. Let me set out what we plan to do. There will be a full public consultation on our proposals this summer. Alongside that, we will publish an impact assessment, which will include a view about the cost-effectiveness of options for transferring functions. I assure the House that the key comparison for the purposes of the assessment will be between our preferred option and the organisations' own plans for rationalisation. I hope noble Lords will endorse the idea of a formal impact assessment as the vehicle for doing this. It is a process that, until now, has been accepted by Parliament for general legislative and policy changes. There does not seem to be any obvious reason why that should not be an appropriate way to proceed in this case.
In addition, as I have said previously, there will be a further consultation on the proposed regulations in due course before these are laid. Taken together, these three safeguards should be sufficient to meet the aspirations of noble Lords for achieving a robust evaluation. The approach that we propose on consultation and impact assessment will, I suggest, produce a result that is thorough, transparent, balanced and, therefore, fit for purpose. The amendments, taken literally, would have us go further by suggesting a formal process of independent assessment of cost-effectiveness. This would be neither necessary nor desirable. With the best will in the world, any such assessment would be costly to the public purse, highly subjective-as any assessment of cost-effectiveness is bound to be-and very difficult to measure definitively. Practically, it would get us no further forward than a standard impact assessment. In any issue of this kind, we need to take care that legislation does not set conditions that are impossible to meet. That is why I hope the assurances that I have given will be enough to persuade the noble Baroness not to press these amendments.
In turning to Amendment 9, I will address the question posed by my noble friend Lord Willis. The amendment seeks to ensure that no HFEA or HTA functions would be transferred using the powers in this Bill until the health research regulatory agency has been established. I fully appreciate the reasoning behind this. It very much accords with the Government's wish to avoid a piecemeal approach to the transfer of functions. In my letter of 27 April to the noble Baroness, Lady Thornton, I said that,
In the light of this amendment and the points made today in support of it, I am prepared to go further and give a firm commitment that, subject to the will and views of Parliament, the Government will proceed on the basis of transferring functions from the HFEA and HTA only once the research regulatory agency is established in legislation. I hope that this commitment will satisfy the House. There are problems with including the amendment in the Bill from a legal perspective. It is difficult to envisage how, within this Bill, we could describe with the necessary level of legal certainty the new research body that would need to be established. The detail of what a new regulator will look like and the functions it should hold is a matter for Parliament to debate and determine as and when the relevant legislation comes before it. To make provision for a future body in this Bill risks both describing it in a way that is not accurate, thus making the power to transfer functions redundant, and attempting to limit the discretion of Parliament in relation to future legislation.
transferred to it from the HFEA and HTA. I fully appreciate the need for assurance that the research regulatory agency will have access to the relevant expertise to deal with the licensing of embryo research and any research-related functions that may transfer to it from the HTA. Therefore, I repeat the assurance that we have consistently given that expertise will follow function, and that we expect that the research agency will have access to expert peer reviewers and others in the relevant fields that are currently available to the HFEA and HTA. However, I suggest that the level of detail on matters such as expert committees is again more appropriate for consideration by Parliament in relation to any legislation that will seek to establish the research regulatory agency rather than attempting to include it prematurely in this Bill.
Although, for the reasons I have given, I cannot accept the amendment, as I indicated at the beginning of my remarks, I would like to believe that noble Lords who have spoken will not now be too far removed from the Government's own position on these matters. In view of our developed approach to the transfer of functions and our clear intention to consult on our proposals in an open and transparent way, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Deech: I thank the noble Lord the Minister and all noble Lords who have spoken. However, I particularly thank the noble Lord the Minister who has, as others have said, been very attentive throughout the passage of the Bill to the concerns of those involved in this field. I know that he has the best interests of the HFEA, the HTA, and all the people involved in them, at heart. When the noble Lord the Minister says that he gives a firm commitment, the whole House believes him and relies on his word.
The noble Lords, Lord Alderdice and Lord Winston, pointed to problems: in one case in the HTA; in the other in the HFEA. However, those points, and the points made by the noble Lord, Lord Patel, are irrelevant as, whatever problems there are with the HFEA and the HTA will not be solved by moving them lock, stock and barrel to another agency, because, as we all know, the human fertilisation and embryology Acts will remain. I say to the noble Lord, Lord Winston, that there is nothing that the agencies can do about costs. They are not able to fix costs. We all wish that the NHS would take on IVF; that would provide a solution to all our problems. However, no one can seriously imagine that if regulation were transferred to another government department, charges would somehow mysteriously come down, the patients would be charged less and nobody would make a profit. Indeed, the stories that the noble Lord, Lord Winston, shared with the House show precisely why regulation is necessary. If the doctors are all competing and jostling for pole position, this again confirms the need for regulation by a body other than a purely medical one.
It is also the case that the law is involved. I am sorry to say this about my fellow lawyers, but there are many things that the HFEA and the HTA cannot do, or cannot do more vigorously, because of the way in which the Human Rights Act came in on top of the existing human fertilisation law and shifted it much more towards the individual, the requirements of the Competition Commission and the requirements of the Data Protection Act, which make it very hard to carry out the research that we wish could be undertaken. If ever there was a case for calling for an external independent review, which is what at least one of these amendments calls for, the noble Lord, Lord Winston, has made the case because all those points can be looked at by an external impartial review, which is what we are calling for.
Although there is no time to go into this, other countries do have regulation such as is carried out here. Israel has a system for considering cases on a one-by-one basis. Canada is emulating us. Surely we do not want to be like the USA where recently a woman gave birth to octuplets. Noble Lords who have a spare moment can go online and look up Cryobank and see sperm for sale. Usually the students involved are called Randy and have a PhD from Berkeley or Stanford and sell their sperm online. We do not want to go down the unregulated route followed by the USA. I know from my involvement with the HFEA that we were bombarded all the time with concerns from the public. Many noble Lords will recall that when the HFE Act was revised in 2008, members of the public lined the streets across the road and waved banners that depicted their fear about hybrid embryos
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The noble Earl, Lord Howe, to whom I am extremely grateful, seems to have given a firm commitment that there will be only one transfer, if it ever happens, of the functions of the HTA and the HFEA-one jump straight into new bodies that will have been firmly established by legislation. That is very satisfactory and I am grateful to those who have listened to that case. I know it is difficult, but they have listened and we should be appreciative of that.
That leaves just one area of disagreement-the nature of the review. I do not wish to sound sceptical, but government reviews and consultations often start from a particular point of view and present rather limited options, and in the end the Government may well do what they wish anyway. I believe that given the range of problems that have been revealed, not just when I was addressing your Lordships' House but by expert speakers on the Floor, there is a strong case for a wholesale review by an external learned body before the HFEA and the HTA take the irreversible move into the new bodies, when they are established.
Lord Taylor of Holbeach: My Lords, I beg to move that this Bill do now pass. In doing so, I crave the indulgence of the House to say a few words. Today is 9 May, and we had Second Reading of this Bill on 9 November. For six calendar months, this House has been considering the Bill. The Bill has been much changed by this House; I think we all share the view that the Bill has been improved by this House. This House can be proud of its role of scrutiny, which it has demonstrated in scrutinising the Bill and improving it. It can serve as a textbook example of how this House serves that great and fundamental purpose.
I say a word of thanks to Members of this House for that role. In particular, I thank those on the opposition Front Bench for the constructive way in which we have been able to talk about the Bill from the beginning. They had firm ideas of what they wanted to happen to the Bill; we had ours; but the discussions were always
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I conclude by thanking the Bill team, because they have had to work particularly hard not just within the Cabinet Office, which originated the Bill, but across all government departments, because every government department has been engaged in the Bill. I thank them for the way in which we have enjoyed working on the Bill together. They now go to see it through another place, and their job continues. I also mention the Bill team manager, as was, Louise Parry, who during the Easter Recess had a baby daughter. Cecilia is perhaps the most visible token of the Bill's passage through this House, and we are delighted for both of them. They are both very well and I thank Louise for her support to me and to her colleagues during the passage of the Bill.
Lord Hunt of Kings Heath: My Lords, I must say that when we completed the passage of the Marine and Coastal Access Bill, which also took about six months, I never thought that I would be facing the noble Lord, Lord Taylor, on another Bill which took so long. I echo his comments: I think that the Bill is much changed; it has benefited from scrutiny in your Lordships' House. I am sure that the whole House would wish to thank the noble Lord, Lord Taylor, for his stewardship of the Bill. He has shown great skill and sensitivity to the issues that have been raised. All of us are grateful for the manner in which he has met us to discuss the issues, but his responses in your Lordships' Chamber have also been in a flavour of seeking a way through. We are very grateful to him.
There has been a cast of thousands on either side of the opposition and government Front Benches. I, too, very much thank my colleagues for their help. I echo the noble Lord's words of thanks to the Bill team. We are very grateful to them for the help that they have given us over the months. I, too, congratulate the Bill team manager on the birth of her daughter during Easter.
The Bill goes to the other place much enhanced. Because of the sunset clause, although the Bill will deal with a number of public bodies, when that is done, there will be a mechanism for looking at public bodies in future in a way that noble Lords find a very satisfactory outcome.
Lord Wigley: My Lords, before the Bill passes, perhaps I may add a caveat to some of the comments that have been made. I immediately recognise that the
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I do not want to go over old ground and I certainly accept that the Government have moved on a couple of points but, if the consultation with the National Assembly had taken place, it would have been very much more satisfactory from the outset. However, with the announcement today of a new chair for S4C-Huw Jones, whom we wish well-we would have hoped to see a line being drawn under many of these matters so that S4C could move forward with confidence. When the Bill goes to another place, three aspects will need to be resolved. The first is the constitutional position of S4C, the second is the safeguarding of S4C's funding and the third is its right to make managerial decisions without people from the BBC sitting in on them.
On Wednesday, a report on this matter will be published by a Select Committee of another place and it will contain remarkable cross-party agreement on the unsatisfactory nature of this Bill. Therefore, I very much hope that, when the Bill goes to another place, the aspects that have not been addressed in your Lordships' House will be addressed and we will have the same satisfaction regarding S4C as noble Lords have indicated they have with regard to other aspects of the Bill.
Baroness Anelay of St Johns: My Lords, before my noble friend makes what I know will be succinct and relevant remarks, as his remarks always are, perhaps I may remind the House of the guidance that Third Reading is not an opportunity for debate and that comments should be extremely brief.
Lord Newton of Braintree: I am tempted to sit down in view of that rebuke but I shall not do so. I only wanted to say, in a modest kind of way, that I know I have been a lot of trouble to my noble friends. I know that my noble friend Lord Taylor of Holbeach has been incredibly patient and understanding with me and I say to the Chief Whip that I really did not want to do anything more than be nice to him. Is that allowed? He has done a great job in helping us as a House to do our job, and he has produced the near-miracle-I speak in the presence of a number of
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I understand why within the logic of the Bill-although it is a logic that we on this side of the Chamber do not accept-the Minister cannot sign up Britain for institutional changes without the conditions of an Act of Parliament or a referendum, if required, being met. However, surely it should be possible for the Minister to indicate support in principle for something that is proposed subject to the requirements of the Act. I do not understand why Clause 6(1) has the words "or otherwise support".
I hope that what I have just said will find acceptance on the Front Bench opposite and, if that is the position, I shall not delay the Committee any longer. However, it seems that it does not, so perhaps I had better explain why I think that this is an important point.
If Ministers are not allowed on behalf of the Government to give any indication of the Government's attitude towards any proposal, I do not see how they can be expected to represent this country in the councils of the European Union. Can they not discuss with their partners what they might and might not recommend? There is a danger, it seems to us, that the Government are trying to turn our Ministers in the Council of the European Union into perpetual "no" men and women who every time they are asked a question about what might happen can only say, "No, this isn't permitted under this Act of Parliament".
If that is the Government's attitude, it is very revealing. I presume that the Government are saying that by definition any proposal for institutional change should be rejected. It is a kind of putting into law in a very rigid way the doctrine of thus far and no further. We have heard many times from the Front Bench opposite that this Government aim to be constructive in their relations with the European Union and that they see a positive role for it, but I cannot understand why a clause prevents a Minister engaging with our partners on a discussion about institutional change and whether this might in certain circumstances be acceptable. It seems to me that it will put the UK completely at odds with our partners, confirm the traditional view of Britain as an awkward partner in the European Union and, because the EU will ignore us and go ahead under enhanced co-operation, almost will the creation of a core Europe that advances with Britain in the outside lane.
I find it extraordinary, as do my colleagues, that the kind of thinking behind the Bill is that Britain should somehow be content with this creation of a core Europe of which we are not part, because as any time an institutional issue arises all that our Ministers can say is, "No", and cannot otherwise indicate support for the proposal. Under the text of this clause we will end up with no ability on the part of Ministers to offer leadership in Europe and no ability to offer leadership at home when institutional issues are under discussion. I hope that my suspicions will be proved wrong and that in fact Ministers will be free to indicate support for measures subject to the requirements of the Bill. Otherwise, it is a denial of the leadership that we all want to see from this country. I beg to move.
Lord Hannay of Chiswick: My Lords, I speak in support of the probing nature of this amendment and wish to ask noble Lords on the government Front Bench to give some thought to an aspect that was not precisely raised by the noble Lord, Lord Liddle. It is what I call the chicken-and-egg problem. By definition, there cannot be a decision on these matters which are taken within Lisbon unless the Council takes a unanimous decision. There will not be a decision on which the Government can hold a referendum unless they have agreed to it, so you have a chicken-and-egg problem of a massive kind. What will the Minister do in the Council? Will he say, "My lips are sealed"? In that case, it will go through because it will be considered an abstention and he will have allowed it to go through. This is a bizarre situation and I cannot believe that that is what the Government intend to bring about.
Perhaps the Minister will confirm my understanding that the Government, in giving their agreement to a unanimous decision in the Council on matters that fall within the scope of Lisbon-not changing the treaty by the intergovernmental conference route-they intend that the British Minister will say that he is agreeing to this decision and that the agreement will be formalised only when in some cases our Parliament has approved it by primary legislation, or in others there has been a referendum. However, he will agree to it in the first place, otherwise there will not be a European Union decision that can be put to a referendum and you will find yourself in a fine old tangle. I hope that the Minister will be able to clarify this as I cannot believe that the Government seriously wish to put themselves in a position where they cannot even participate in the debate about a decision in Brussels because, perish the thought, what they say might be interpreted as support. Oh, terrible and fantastic-everyone will fall down at that stage.
I do not think that makes any sense, and nor do I think necessary the requirement for a referendum that the Government are trying to impose. In a later set of amendments, I will argue that that requirement is excessively imposed. It is not necessary because all those requirements can be retained without preventing the Minister in Brussels behaving in a normal, sensible way-that is, participating in the negotiations. If the British Government think that, basically, it is in our interests for that decision to go ahead, they can say that it can go ahead but that the following national processes then have to ensue. I hope that the noble Lord will be able to clarify the situation.
Lord Davies of Stamford: My Lords, for the purposes of this very narrow amendment, we accept that the Minister of the Crown cannot agree anything without a draft decision being approved by an Act of Parliament and the referendum condition being met. That means that in the case provided for in Clause 4 there is a referendum if necessary and the referendum result is positive. Most of us on this side of the House think that that is a monstrous situation to put the country in. Nevertheless, for the purposes of the amendment, we accept that and that the Government will not be able to agree to any of those decisions without a referendum or an Act of Parliament, and in many cases both.
The amendment is designed to question the words "or otherwise support". That is why I am just as shocked as my noble friend Lord Liddle that the Government cannot accept it. What is the purpose of including "or otherwise support"? Surely, throughout the Bill the Government have been arguing to prevent this country acceding to or being party to any decision on constitutional change, such as the introduction of qualified majority voting, without going over these thresholds of Acts of Parliament and a referendum. The words "or otherwise support", as in the text, imply that it is an additional restriction. What does that mean? We would like specific answers from the noble Lord, Lord Wallace, if he is summing up the debate on the behalf of the Government. Does it mean that a Minister would not be able to say, "I
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"If the European Council sought to come to a decision based on consensus, the provision in clause 6 would mean that we would have to vote to break that consensus by not abstaining. That is the important protection contained in clause 6(1)".-[Official Report, Commons, 4/3/08; col. 1669.]
Perhaps it will help if I go on to explain that this does not in any way mean that a Minister or their officials cannot express support for a decision in principle, pending the completion of the process of approval provided in Clause 6.
Lord Davies of Stamford: I am grateful for that intervention, but I must say to the noble Lord-I think that he will agree in principle-that it is a very bad excuse for a Government, when bringing forward legislation, to say, "This may be bad legislation with bad wording, but we copied it from a previous Government". That is not the way that legislation should be brought forward in this or any other House. All proposed legislation should be justified on its own merits and on its own text; the Government of the day should be prepared to defend the texts that they bring forward and should not say simply that they are reproducing what may well be the errors of the past.
I move to the text before us. It would be useful to have on the record a clear statement from the Government of what this is intended to mean to Ministers. If the Act is passed, Ministers will need to know what scope they have for taking part in discussions. If the noble Lord says that they will be allowed to say, in the example that I quoted, "I personally am in favour of this, but I do not have support yet from my colleagues so I will take it back to them", that would be useful to know. If they will be allowed to say, "The British Government are in favour of this in principle, but we need an Act of Parliament and a referendum", that would be a very reasonable thing to say if this Act was passed. However, it is extremely important that we get this clear.
I will explain to the noble Lord why it is so important. There is an issue of good faith. We are parties to the treaty of Lisbon. The noble Lord probably voted for the treaty, and his noble friend Lord Howell probably did not. Nevertheless, we as a country are committed
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This is a matter of good faith and is about whether the Government-we had this discussion in another context during the debate on the Bill-want to bring about deliberately a degradation in the good relations between this country and our EU partners. I trust that they do not. The noble Lord, Lord Wallace, said on a number of occasions that they do not and that it was quite wrong for me to harbour that black suspicion. I hope that it is quite wrong of me, but it is therefore very important to see what kind of constraint will be imposed on Ministers. I am grateful for the noble Lord's intervention, which has gone some way to explaining the practical effect on a Minister of the Crown who takes part in the Council of Ministers. Anything further that he can add would be of great practical importance when Ministers find themselves in difficult situations in future discussions where they have to have regard to the Act, if it is an Act by that point.
Lord Lamont of Lerwick: My Lords, when the noble Lord, Lord Liddle, moved his amendment, he was careful and modest enough to say that it was a probing amendment, following which it was possibly unwise for the noble Lord, Lord Davies, to go in feet first when it was explained to him that the legislation was repeating what had been in previous legislation-apart from the referendum-and say, "That does not excuse it because it is bad legislation". However, all the arguments that he applied about lack of flexibility surely would have applied before if his arguments were right.
Lord Davies of Stamford: I hope that the noble Lord, Lord Lamont, understood what I said. I stand by it, will repeat it and will ask him whether seriously he disagrees with it. This House and any serious legislature or democratic assembly anywhere in the world should look at the text of Bills proposed to it on their merits. It is no excuse simply to say, "We are just repeating mindlessly some formula that already exists", without being prepared to justify it.
Lord Lamont of Lerwick: Yes, but the noble Lord's criticism might have been a little modified in the light of the explanation that the Minister gave, rather than being put forward in quite such an aggressive manner.
In an equally probing spirit-because I, too, would like to understand this-perhaps I might ask the Minister two questions. Is he saying, first, that there is a distinction between a draft decision and a full decision, and that a Minister could indicate an agreement in principle to a draft decision? That was what I understood happened when we debated the European financial stability mechanism-the first of the three bailout funds, if I may call them that, that were arranged-when my noble friend Lord Howell clarified a certain amount of confusion in the House. Some noble Lords thought that we were making a final decision; he made it clear that we were not, that Parliament would have to decide on the principle of the matter, and that there would be another debate later. If that is the correct example of how this operates, we can see that there would be plenty of time for flexibility and consideration.
Secondly, are the words "or otherwise support" meant to cover also a position where abstention on a decision occurs? Where there is a requirement for unanimity, abstention cannot stop a proposal going through. It may be that that, too, is covered by the words. I have seen the words of Mr Murphy that the Minister quoted, and I think that that was one of the points that he was making.
Lord Blackwell: My Lords, I oppose the amendment for the opposite reasons to those that the noble Lord, Lord Liddle, and others gave for promoting it. It is important that it is very clear that the UK Government are not enabled to support or enable moves to go forward in Europe that imply a treaty change or a substantive shift in competences, without it being very clear that the UK Government must have support in a referendum.
The issue for me is that if the words "or otherwise support" were removed from Clause 6(1), the only restriction would be on a Minister of the Crown voting in favour. As the noble Lord, Lord Lamont, said, there are many situations in which a vote may neither be required nor be part of the procedure. Simply by sitting still or abstaining, Ministers may enable something to happen that would have binding consequences for the UK. To remove the words "or otherwise support" would completely nullify the provision. The discussion has led me to wonder whether the wording goes far enough, or whether we need additional text stating "to otherwise support or allow by default" a decision to which the provision applies. I would like an assurance from the Minister that this will catch all those situations where abstention, sitting on the hands or complicity would enable decisions to move forward.
Lord Richard: My Lords, I found that contribution extraordinary. Is the noble Lord seriously suggesting that if you sit on your hands and do nothing you are positively supporting something? Is he seriously suggesting that if the procedures are such that an abstention may produce a particular result in a vote, by engaging in that abstention and not participating in the vote one is somehow allowing it to go through? We are one country among a group and, as such, we have the options of supporting something, not supporting it or abstaining. You can decide, "I support it", "I do not support it" or "I am not going to say whether I am going to support
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Lord Blackwell: I am suggesting that because, as the noble Lord will know, in Councils in Europe if you abstain or are simply absent from the meeting you do not prevent binding decisions being taken that would have an impact on the UK. If there is a decision about something that implies a transfer of competence from the UK of the kind that this Bill deals with, I would not want a situation where the noble Lord or a Minister representing the UK could-by simply not turning up-avoid his obligation to say to the European Union that a decision cannot go through because it is subject to a binding referendum in the UK.
Lord Richard: I do not want to pursue this too much, but is the noble Lord again seriously suggesting that if you do not turn up to a meeting you are supporting something? That is an extraordinary proposition.
Baroness Nicholson of Winterbourne: Noble Lords on all sides of the House must now surely recognise that this amendment is a mistake. I feel absolutely sure that it is an honest mistake, but it is a mistake based on a misunderstanding of the rules in the European Union. In order to work well in the European Union, you have to recognise that members come from many different states-as they have always done. In order to draw the members together so that they come to the meetings and all the rest of it, the European Union has different sorts of rules that are designed to attract them, to make absolutely sure that they come to the meetings. There are some very tough rules indeed if you do not turn up, and that is why this amendment is such a mistake. We cannot pass it because it would so gravely handicap United Kingdom Ministers in the Council of Ministers.
This way of working is commonplace throughout the European Union. If you do not turn up when it is a unanimous vote-and many votes are unanimous in different European Union institutions-you will be deemed to have agreed. That is what forces people to come from so many different nations. It is an enormous effort and very expensive for the Union and so on, so there are a number of rules that act like a magnet. This is one of them. Therefore, with the greatest respect, I suggest to noble Lords opposite-to the noble Lord, Lord Davies of Stamford, for example, and others-that they should rapidly withdraw this amendment. It is a little embarrassing. If it were to go through, we would be the laughing-stock of the Council of Ministers.
Lord Pearson of Rannoch: I have a slightly more general question to put about a thread which is running through all our amendments and proceedings. It concerns
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Lord Wallace of Saltaire: My Lords, I shall respond to the spirit of the probing amendment that the noble Lord, Lord Liddle, rightly moved. It is useful to probe on this. I do not think that I can respond to all the points that the noble Lord, Lord Davies of Stamford, raised, because they seem to me to stem from a deep conspiratorial assumption about the implicit plot behind the Bill, and I suspect that reasoned argument cannot reach that deep.
I should point out that Articles 235(1) and 238(2) of the Treaty on the Functioning of the European Union make it clear that abstaining in a decision requiring unanimity is effectively counted as a supportive vote, and so an abstention could be classed as supporting a decision. Those of us who have been involved in any way in Brussels decisions will know that formal voting is not the most common form of decision-making in Brussels. A great many are taken by consensus and the chair taking the sense of the meeting. That is no doubt part of the reason why the previous Government, in their wisdom-I am not saying that they were always wrong, let alone that they pursued conspiracies of their own-put in this phrase "or otherwise support". That does not mean that a Minister cannot indicate support in principle for a decision if the Minister also gives notice that a vote in favour is subject to approval by Act of Parliament and to the referendum condition being met, if that is required by the decision.
The noble Lord, Lord Pearson of Rannoch, was determined to get enhanced co-operation into the discussion even though we are not discussing that amendment. Enhanced co-operation is under way. The British Government are indeed involved in the process of enhanced co-operation on patent law. We do not believe that Britain will become more marginal because enhanced co-operation takes place among others. After all, if one looks at what is happening with European co-operation in defence, one will see that the United Kingdom and France are, in effect, leading in defining practical co-operation in that regard. The myth behind the Bill-that we will somehow be pushed to the margin, which the noble Lord thinks is a good thing but the noble Lord, Lord Davies, thinks is a wicked thing-is not the case. In an EU of 27, which is about to be an EU of 28, 29 or 30, it is likely that there will be a number of issues on which smaller
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Lord Liddle: If Britain agreed to enhanced co-operation but the member states participating in enhanced co-operation then decided under the provisions of the Lisbon treaty to change the decision-making process to qualified majority voting, would the Bill cover the situation?
Lord Wallace of Saltaire: As a hypothetical situation, at that point it would because it would be a change in power and competence. The enhanced co-operation itself would not. That is the distinction. Let me reiterate: a Minister can make very clear that the Government support a decision but that they must also seek the necessary approval of Parliament and the public first. Britain is not alone in this respect. This is the way in which national Governments very often have to proceed.
Lord Hannay of Chiswick: Now that Minister has dealt with enhanced co-operation, can he go back to the chicken and the egg? It would be quite nice to know how he thinks the Council will conduct itself in taking decisions in this matter. This is nothing whatever to do with absence from the Council, which is a complete red herring. This is about what you do in a matter that requires unanimity. Without unanimity, there is no decision in any of the matters that we are talking about. I think that that is common to the understanding of everyone in the House. How is that unanimity achieved so that the British Government can submit the matter to their Parliament or to the public through a referendum if they have not expressed a view, because then there is no unanimity? There is a serious chicken and egg problem here.
This is a probing matter. There are, for example, very well known procedures in Brussels, which I suspect the Government would take advantage of in circumstances such as this, whereby the Council would indicate that it could only reach political agreement on this occasion and that legal force could not be given to it through an A-point in the Council, or whatever, until the British Government had passed legislation, had a referendum, or whatever. If that is what the noble Lord is getting at, I have to say that the wording, including the wording that he quoted from Lisbon, is a long way adrift from that and will cause Ministers considerable difficulties if this becomes law. I hope very much that he will now be able to clarify whether we are talking about political agreement, which of course involves support-you cannot have political agreement without support-or legal agreement, because the British Government would be prevented from giving their legal agreement to the matter.
Lord Wallace of Saltaire: My Lords, this is not entirely new. We all understand that Her Majesty's Government have often said in Brussels that they can
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On the requirements of Clause 6, we are, after all, talking about the consequences of joining in with unanimity decisions that will involve the transfer of power and competences. That is the "added" part. Otherwise, the complex negotiating processes of Brussels, in which a number of noble Lords here are extremely expert, will continue with Her Majesty's Government and the Governments of a number of other member states saying that they can agree to something only subject to later parliamentary approval. That is the established practice of the Germans, the Danes, us, the Finns and others. The Bill might not be as elegant as the noble Lord, Lord Hannay, would like, but it merely restates the familiar circumstances from the Lisbon treaty ratification Act.
Lord Tomlinson: I am grateful to the Minister for giving way, but he leaves me rather confused. I try to think of the big picture all the time. Here we are trying to inspire the British people, to eliminate their scepticism about Europe, and to get them to love Europe and to feel connected to it. How on earth do some of the things that the Minister is talking about make a single contribution towards that process? He makes the British Parliament sound more bureaucratic than the worst European bureaucrat.
Lord Wallace of Saltaire: I simply do not accept what the noble Lord has said. I have been quoting from an Act from the last Government-his Government and that of the noble Lord, Lord Davies of Stamford, who was a Minister in it and who has now rubbished it. The Bill restates established practice, which in no way means that the British national media will-
Lord Kerr of Kinlochard: I suggest that the reference to a scrutiny reserve is not quite right. A scrutiny reserve prevents a decision being taken, so the decision is not taken until the scrutiny reserve is lifted or the Minister goes into the statistics of the noble Lord, Lord Pearson of Rannoch, and decides that he will override the reserve and does not apply it any more. There is no decision until the scrutiny reserve has been dealt with, so the chicken and egg point made by the noble Lord, Lord Hannay of Chiswick, is real. I hope that we do not need to pursue it much further tonight, but it does need to be thought about.
Lord Wallace of Saltaire: My Lords, I am very willing to reflect on this point and see whether we can return to the House with any words of comfort, but I fear that we are chasing headless chickens around the yard a little. I will leave it to others to decide whether the eggs are headless as well.
Lord Davies of Stamford: I am very grateful to the noble Lord, Lord Wallace, but I hope that if he wants to criticise me in future, which he is very welcome to
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I hope I have managed to persuade your Lordships that there is no sinister intent behind these words. They are not part of a dreadful right-wing Conservative plot, so there is no need to add the qualification that Amendment 32A would require. May I also say, since the Daily Express has been running a range of quite absurd stories-the latest being that government buildings are being forced to fly the EU flag-that we must recognise that we are operating in a world in which, for many years, previous Governments have failed to stand up to some of the complete nonsense that has spread through the British press. Unfortunately, we now find more and more nonsense spreading, and part of what this coalition Government intend to do is to spell out the advantages to Britain of being in the European Union in order to get back at some of the nonsense put out by the Daily Express, which unfortunately, as noble Lords will know, is no longer part of the Press Complaints Commission process and so the commission has very few controls over what it puts out, but that is another matter.
We will take this matter away and look at it again. However, as I say, the words used in the Lisbon treaty amendment Act were there for a good reason, and the words used here are also here for a good reason. On that basis, I hope that the noble Lord will be willing to withdraw his amendment.
Lord Pearson of Rannoch: Before the Minister sits down, may I be allowed to put in a word on behalf of the Daily Express, about which he has not been wholly polite? Millions of people in this country actually welcome the campaign to leave the European Union which the Daily Express has started-it is the first national newspaper to have done so. Whatever noble and Europhile Lords might feel about the Daily Express, I would at least like to put in a word on behalf of the rest of us.
Lord Stoddart of Swindon: My Lords, we are in Committee and it is not necessary for noble Lords to interrupt or question the Minister on the basis that he has not yet sat down when in fact he has. It is in the power of noble Lords to intervene at any time unless there is closure or we have become fed up with discussing the issue. Now that I am doing so, I have just one final question.
The noble Lord, Lord Davies, appears to think that transferring a matter from one Bill, whether it is by a previous Government or a sitting Government, to another is out of order. Transferring that item from a Bill by the previous Government in relation to the very important Lisbon treaty is the sensible thing to do because it brings forward the protection that that Government made to this Government, who, by agreeing to it, confirm that it is good for Parliament and is proper to have in the Bill.
Lord Wallace of Saltaire: I suspect that the noble Lord may know the answer to that. As I have made clear, when we are not discussing questions of the transfer of power and competence, these questions do not apply. As for the parliamentary scrutiny reserve, these questions occasionally do apply. As the noble Lord will be aware, the thrust of this Bill is partly to respond to those who fear that the European Union much prefers to talk about process, competences and institutions than about policy and outcomes. We want a European Union which focuses on policy and constructive outcomes and does not spend too much time focusing on institutions.
Lord Liddle: My Lords, of course this side of the House will not pursue this amendment and we will withdraw it. Before I withdraw it formally, I should say that I am very glad that we have put forward this amendment because it has raised some interesting points. The point made by the noble Lord, Lord Hannay, has not been adequately answered by the Government. In this discussion, we also have had a first: it is the first time since we started Committee stage that the Government have said that they might go away and look at something, which is quite remarkable. We have been passing rather like ships in the night.
The government Benches on the one hand and the Opposition and opinion generally throughout the House on the other hand have been talking, although not really engaging. This is the first time that the Government have said that they will consider the wording. I should have thought that if the need is to find a form of words to cover the agreement on a consensus without a vote one could find more specific words than "or otherwise support". I see no objection to adding something on the lines of what is suggested in Amendment 32A in order to make clear that this is not intended to be a restraint on Ministers.
Lord Liddle: The noble Baroness may have a point-and she may not. I would prefer that in legislation before this House we use words which are clear as to their meaning. I have the greatest respect for Jim Murphy who is one of the most talented people in today's Labour Party. The fact that the Minister has managed, with the help of his civil servants, to dig up one of his quotations does not put me off at all. I think that better wording could be found than that which is in this amendment.
The fact that the Government have said that they might go away and consider the wording perhaps shows that there is something about the spirit of Schuman Day; namely, that we are prepared on Schuman Day to be a little more positive in considering reasonable points about this Bill. In withdrawing the amendment, I hope we are clear that this is not a Bill which will turn our Ministers into people who have no alternative but to say no in European meetings. I beg leave to withdraw the amendment.
Lord Kerr of Kinlochard: My Lords, I should like to start by offering an apology to the noble Lord, Lord Pearson of Rannoch, for something I misheard on our second day in Committee. I was not here on the third day and this is my first opportunity to correct that which I misheard. After I had spoken, the noble Lord, Lord Pearson, said:
I thought that that was an assertion and I did not reply because I did not think that it deserved a reply. But on looking in Hansard I see that it was a question. I apologise for mishearing the noble Lord, Lord Pearson of Rannoch, and for not answering his question. Clearly, the ears of the noble Lord, Lord Wallace of Saltaire, are better than mine and he spotted that it was a question. He began his subsequent remarks by saying that,
As a result of what the noble Lord, Lord Pearson, said and that reply, I feel that it is necessary for me to say that my silence did not in any way imply assent. I feel that it is important to put into the record what I think about the judges of the court, of whom I have known about 12 or 14. In this House, there will be some who remember with respect and affection Lord Mackenzie-Stuart. There will be many of us who would wish that Sir David Edward was here with us. The present judge from the UK, Judge Schiemann, is an immensely distinguished jurist with, behind him, I think, nine years in the High Court, eight years in the
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I greatly admire the imaginative and irrepressible verve that the noble Lord brings to our debates but it is really important that we should not make absurd allegations about a serious institution and serious people. I thought that it was important to set the record straight and to say what I would have said had I not misheard the noble Lord at the time. I hope that the Government Front Bench will confirm now, as I am sure that it would have done had I not misheard, that it agrees with me and not with the noble Lord, Lord Pearson of Rannoch, on the quality of the judges of the Court of Justice.
Lord Pearson of Rannoch: I do not know how many of the legal luminaries to which the noble Lord has just referred are present members of the Luxembourg court. I would merely say that those of us of a Eurosceptic bent do not really regard the Luxembourg court as a court of law at all. We regard it as the engine of the treaties, endlessly pursuing, in its judgment, the ever closer union of the peoples of Europe.
I do not think it was the Luxembourg court, but we owe it to the Daily Express, which recently ran a two-page spread complete with colour photographs, to see a summary of the members of the Strasbourg court. I do not think that they pass muster either. Of course, if there is a judge in the Luxembourg court who would pass the muster which I have suggested he may not, then I am happy to apologise to him, or indeed to several of them. But that does not alter my strictures and the strictures of the Eurosceptic movement in this country regarding the Luxembourg court and its proposals over the years. One thinks again of Article 308 as it then was, and other flexibility clauses in the treaty, which it has used and adapted relentlessly to pursue the project of European integration.
Lord Kerr of Kinlochard: I thank the noble Lord, Lord Pearson. Unless I misheard again, the noble Lord did not end his remarks with a question, so I am not going to respond except to say that the Strasbourg court is, of course, elected by parliamentarians. I do not think that the Strasbourg court has anything to do with this discussion, which is about the European Court of Justice, but I am grateful for the words of apology from the noble Lord.
I turn to Amendment 30. Here in Clause 6 we are in a different part of the forest. We have abandoned treaty land and treaty amendment by any form, and now we are into decisions of various kinds and the mandatory referendum requirements for those decisions. By definition we have therefore left coalition agreement territory because we are not talking about treaties any more. We are now dealing with the 56 categories of decision on which a mandatory referendum could
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Why have we got into this curious mess in these extraordinarily detailed thickets-and we have not yet looked at Schedule 1 where mandatory requirements are to be imposed? I can think of only two rationales. The first was the one that the noble Lord, Lord Lamont of Lerwick, talked about in a different context during the third Committee day. It might be called the Odysseus rationale. We would have a British Minister, let us say the noble Lord, Lord Howell of Guildford, sailing past Brussels and insisting that he be tied to the mast so that he cannot be lured by the siren voices with their seductive song. He wants to be able to say, "Look, guys, I have nothing against what you are saying, but I can't possibly agree with you. If I did, we would have to have a referendum back home". It is the wax in the ears and tied to the mast provision-the Odysseus provision. I think that it is very pusillanimous. I would have found it very hard to brief Mrs Thatcher, as Prime Minister, on this point. Mrs Thatcher thought that if you disagreed with something, you disagreed with it. You said no. You did not say, "I am terribly sorry. There is nothing much we can do about this because we would have to have a referendum and we do not want one".
It is insulting to our negotiating partners to turn up tied to the mast. They expect to do serious business, but the Brits cannot do so because of this Act on the statute book. The Brits therefore cannot take part in negotiations. It will feed the temptation and tendency for people to do things in smaller groups without consulting us because we are such a bore.
Lord Lamont of Lerwick: I am most grateful to the noble Lord for giving way. According to his argument, Ministers will be put in a position where they have to say, "I cannot agree because we will have to have a referendum". Why is he assuming that a referendum cannot be won? Why is it not possible for a Minister to say, "I agree to the draft decision. We will put it to the people and we hope and intend to win"?
Lord Kerr of Kinlochard: That is a fair question in relation to, say, the euro, which is the subject of Amendment 30. If we were to decide that we wished to join the euro, it would be totally reasonable for the Minister-I would like to see the noble Lord, Lord Lamont, in this role-to say to his ECOFIN colleagues, "We would now like to join the euro, but this is a big one and I am afraid that we will have to have a referendum on the issue".
Lord Kerr of Kinlochard: The British Government of the day. My point, in answer to the noble Lord, Lord Lamont of Lerwick, is that when you look at the sort of decisions in Clause 6, they are the kind which the British public are not going to be remotely interested in. The public prosecutor and all that is not referendum stuff. It is therefore particularly difficult to play the Odysseus rationale because everyone knows that you are not going to have that referendum. You are going to block the decision in Brussels in order to postpone sine die the referendum. That will be the effect of what you say.
There is a second possible rationale, which is the one we hear from time to time from the Government Front Bench, usually in the context of the treaty. It is the one that particularly worries me. I think it worries the noble Lord, Lord Hannay, and everyone who knows about the way in which opinion in Brussels is moving now. It is the argument that the noble Lord, Lord Howell, comes up with when he says, for example:
"The picture of a dribble of referenda on small issues completely misunderstands the way in which the European process works now or will work in the future, whether this Bill is on our statute book or not. I have obviously explained that insufficiently because the message has not got over, but as we continue our debates I hope to be able to make clear that the pattern will not be dissimilar to the pattern of the big treaty packages in the past".-[Official Report, 3/5/11; col. 369.]
There is a worrying misunderstanding here. In Brussels, everyone is determined that there should be a discontinuity. Everyone is determined to break with big treaty packages. That has been true for 10 years and it is why the convention invented the passarelle. Why do people want to avoid big treaty packages? If efficiency is your criterion, it is more efficient to make a change when the need arises. It is not very efficient to put the change in a hover and say, "We'll wait for the next big package". It is more transparent and democratic to give member states the right to agree or disagree with single specific decisions. It is good to get away from the awful IGC business of trade-offs, where people do a market haggle and things go into treaties which some would say should not be there in order to buy somebody else. The issues should be considered separately and on their merits, and they will be in future. That is why the convention produced the ideas that it did about accelerated methods of treaty reform-and passerelles in relation to decisions that do not require treaty reform.
The really sinister reading of the Minister's repetition of this argument is that he is not describing-he knows that that is not the way it is in Brussels-but he is prescribing; he wants that to be the way it is going to be in Brussels. He may want to hold things up. He may want the EU to become inflexible and more brittle. He may want referenda always to be held on mixed bags of issues, making them even more arcane and unsuitable to a single yes/no answer. I cannot think of a third explanation. The rationale for Clause 6, which we are told is all about trust, is either distrust of ourselves-the
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Amendment 30 is a simple amendment which accepts that, for the euro, there is a requirement for a national referendum. It also suggests that there should be no requirement, other than for treaty reform, for a referendum on anything else. If the amendment, which stands in my name among others, is carried, we will have accepted that there should be referenda for treaty reform, and now for the euro, but not for the thickets or plethora of decisions which we are about to go into. I beg to move.
Lord Hamilton of Epsom: My Lords, it is quite difficult in this debate not to get drawn into some sort of Second Reading speech when we have amendments, such as those of the noble Lord, Lord Kerr, which basically fillet the whole Bill and seem designed to ensure that it does not have the effect that was originally intended.
I am always amazed when I listen to people supporting these sorts of amendments that they do not seem to realise how totally disillusioned the British people are with our progress as we creep, by grandmother's footsteps, further and further into an integrated Europe which nobody really wants. I rather liked the analogy of Odysseus being strapped to the mast with wax in his ears, because we should remember that the reason why that happened was so that he would not hear the sirens' songs and be dashed on the rocks. I hope that our Ministers will be strapped to the mast with wax in their ears because we will otherwise be merely drawn further and further into Europe and into an integration that people in this country do not want. I sincerely hope that we will oppose these amendments, which seem to be designed precisely to remove what the Bill is trying to do, which is to reassure the British people that we will not be drawn any further into Europe by this rather surreptitious process that has been going on under successive Governments for many years now and has led to a great sense of disillusion among the British people.
Lord Hannay of Chiswick: I shall speak to a number of the amendments in the group which are in my name and support the amendment moved by the noble Lord, Lord Kerr. I am glad that the noble Lord, Lord Hamilton, got in ahead of me, because he has enabled me to realise that he has neither understood what the amendments are trying to do nor understood what they are not trying to do. So I shall try, since that is the spirit of Committee stage, to say a little bit about them.
I hope that I shall not be totally out of order if I express some regret that so many of these amendments have been bundled together when they are completely contradictory. There are amendments in the group which add more to the list of 56 referendums with which we are threatened and there are amendments, such as those which I support, which subtract. They are not two branches of the same subject; they are two completely contrary views of how to pursue Britain's national interest in Brussels. However, having said that, I am happy to address all the amendments, particularly those in my name.
The reasons that we have to take seriously the need to reduce the number of subjects on which there might be referendums are numerous. The proponents of the legislation have simply ignored the views of the Constitution Committee of this House. I have not heard a single word from the government Benches answering the committee's report in which it said that referendums should be used in the EU context only when matters of major constitutional importance are at stake. I shall not go through the whole list in Clause 6 to show which matters are and are not-most are not-covered by that; the euro clearly is, which is why there is no question of trying to suggest there should not be a referendum on that matter. However, that is one reason for shortening the list.
The other is that if you have 56 items-or, as some speakers on later amendments in this group will no doubt urge, more than 56 items-which could trigger referendums, you are chopping at the base of representative parliamentary democracy and the sovereignty of Parliament, because you are handing over huge chunks of it to a different process which does not involve Parliament. That is another reason for cutting down. A further reason for taking this matter seriously, as I hope the Government will, is that given by the noble Lord, Lord Kerr. So far, the Government's response to these criticisms of this great cascade of potential referendums has been totally inadequate. Their response has been what is now described in the argot as "Calm down, dear". They say, "Don't worry, it won't happen. None of these things will happen". The noble Lord, Lord Howell, said the other day that there will not be all these decisions in Brussels that require referendums; they will all be bundled together into a big package. As the noble Lord, Lord Kerr, pointed out, that is fundamentally against Britain's interests. I do not wish to accelerate construction of a large institutional package of measures of the sort that was passed in the form of the Single European Act or Maastricht or Lisbon. It is not in our interests to do that, but that is precisely what we will end up doing. Alternatively, and it is really quite serious, we will end up having serial blocking in Brussels, which is what I think some noble Lords opposite would like; that is, when each decision comes forward, the British Minister will block it because they will not want to have a referendum on it, either for opportunistic reasons or for perfectly substantial principled reasons. Together, they will all add up to a situation in which Britain's good faith will be queried. Our partners will then be propelled either into the large package, which is not in our interest, or into enhanced co-operation. By definition, since we are talking about matters that require unanimity, they will have been brought around the Council table to a point at which 27 of them-or more if there are more members of the Union than now-have said that they are prepared to go ahead and one, Britain, has blocked it. That is the absolute perfect building block for enhanced co-operation-for marginalising ourselves and being completely ineffective. Therefore, I am arguing that we truncate the list of matters on which there should be a referendum.
I now turn to the point raised by the noble Lord, Lord Hamilton. This is certainly not removing the whole meaning of this legislation. No one from these
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Thirdly, we are not challenging the coalition agreement in any way, which merely stated that there would be a referendum on treaty change. No one here is contesting that. It is probably not formally covered by the Salisbury convention, but the Government have a majority in the other place and have the right to have their legislation. However, the Government have added a huge amount to that coalition agreement in this case and these amendments address that. That is why we should take them seriously.
Finally, these amendments do not take us back to the position that this Parliament agreed when it ratified Lisbon. At that time, it subjected these matters-the Article 48(6) matters and the passerelles and so forth-to resolutions in the two Houses but not to primary legislation. In the Bill, the Government are introducing a requirement for primary legislation in all these matters and some others too which are not required for referendum. None of these amendments contests that shift, which is a shift to increased power for the Westminster Parliament in ratifying things agreed in Brussels. That is not being contested.
Those three things that are not being contested are important to understand as well as those things that are being contested, which I argue are also important. I hope that these amendments can be treated seriously and not considered to be wrecking amendments. They are not wrecking amendments. If the Bill is passed with these amendments it would still be a major constitutional innovation in this country. It would still institutionalise the holding of a referendum whenever an intergovernmental treaty were agreed in Brussels.
No one should try to tell those of us who tabled these amendments that we are not accepting the spirit in which the coalition was founded and the spirit in which Parliament conducts its business. The amendments are perfectly legitimate. They would put Britain in a much stronger position in Brussels because Ministers will still have to say, "I can give only political agreement to this unanimity requirement. I cannot give legal agreement to it. Before I can give legal agreement to it I must go back to London and seek an Act of Parliament to enable me to give legal agreement to it". That is how these amendments will leave the situation.
That is a strong position for a British Minister. But it does not involve a whole cascade of referendums. I believe, along with others, that it is frankly a sick joke to suggest that this will improve Britain's relations with its partners in the European Union. Alas would it were so, but it will not. It will organise a whole series of difficult moments which may well lead to our marginalisation. We all know from last week that that
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Anyone who tells me that organising a series of referendums in this country will improve the way that people think of the European Union cannot be stating that with any seriousness of purpose. It cannot be so. We have all known in the history of Britain's membership of the European Union that when we get into a confrontation over European issues, support for Europe drops sharply. When we have a period of relative calm and tranquillity and of reaching agreement in Brussels in a sensible way, sometimes striking compromises, support rises. Please do not tell us that this Bill will improve support for the European Union in this country. It will have the exact opposite effect.
Baroness Nicholson of Winterbourne: My Lords, I oppose the amendment put forward by the noble Lord. My reasons are not in spirit different from those of the noble Lord, Lord Hannay of Chiswick. I wish this Bill to succeed and I wish to reconnect the British public with the European Union movement of legislation and with what happens with our Members of the European Parliament and Ministers. But I profoundly agree with the view of the noble Lord, Lord Hamilton at Epsom, that these amendments would hollow out the Bill completely. The noble Lord and I might differ on other things to do with the Bill, but I agree that these amendments would have a completely negative effect. We would be left with a hollowed-out Bill that simply would not be worth putting before Parliament again.
Indeed, if I can tweak the noses of some of the noble Lords opposite, if we agreed these amendments we would be left with merely a referendum on the euro, which I understand is what the previous legislation from the Opposition put forward, whereas other points in that legislation were not acceptable.
The amendments in this particular group go right against the philosophy of the Bill itself. As a former Member of the European Parliament, it is galling indeed for MEPs to receive something between 30 per cent and 35 per cent of the vote. It is shameful and shows how weak successive Governments have been in putting European Union thinking, philosophy and practices-good or bad, positive or less than positive-in front of the British people, who are the ultimate deciders. We have failed as Members of this House and of the other House, and other member states have not had that failure. I put that point forward previously.
The common purpose of this Bill, for those of us who support it, is to regain not just the trust but the knowledge base that the British people used to have so many years ago with the first referendum in the early 1970s. A huge amount of work was put forward by those who opposed membership and those who supported it. The result was that on the table was a mass of information about what grew to be the European Union. Indeed, looking back at those speeches reminds one of the profundity of the knowledge base put forward by different Members of both Houses of our Parliament.
Lord Tomlinson: I am grateful to the noble Baroness, but when she romanticises about the 1975 referendum, would she perhaps reflect that it was a rather shoddy device from the Labour Party, to which I belonged at that time, and the House of Commons? That party did not have a decisive policy in relation to Europe, and this was the shoddy compromise to make sure that we got away with it.
Baroness Nicholson of Winterbourne: I am perhaps just a few days younger than the noble Lord. What I recall as a campaigner with my father, my uncles and my cousins, was that we wanted to put forward the maximum amount of knowledge to the voters. All I am suggesting-and I think, correctly, that it is evidence based-is that the information flow is now so weak that nobody in the United Kingdom knows very much about the European Union at all. Indeed, the level of ignorance is shameful and it has to be put down to us in Parliament and to successive Governments. We have the knowledge and we should be putting it forward. The core purpose of this Bill is to reconnect-to use that wording again-with the British public, to bring the knowledge base forward. I suggest that these amendments would destroy that purpose, and that is not a proper thing to do. The public have a right to know, and if we do not tell them they cannot know.
The curious thing about the amendments is their self-contradictory terms and the disparity in what they seek to achieve. Some amendments propose to extend referendum provision to common fisheries policies, rights of citizens and the ECHR, which is outside the parameters of this Bill. The Bill does not transfer those powers or competences from the UK to the EU, so it is a very curious set of amendments.
The amendment that troubles me most of all is the one that would remove our capability to stop qualified majority voting with the veto for areas in common foreign and security policy. I hardly need to remind the noble Lord, Lord Hannay, that Article 42(2) of the treaty of Lisbon states:
"The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides".
In other words, I am talking about irreversible decisions to transfer power and/or competences from the UK to the EU on issues such as a common EU defence policy-for example, with a European army, whereby the UK might lose its freedom to decide if and when we send our troops. There would have been no Libya; we would have had to wait for the Italians to agree, for example. Do those who propose the amendments recognise that that is what could very easily happen? A move to qualified majority voting from the veto on any important policy area in part 3 of the TFEU is set out in Schedule 1 on the common foreign security policy, enlargement and direct taxation. These are traditional red lines for us and these amendments would destroy our position.
Lord Hannay of Chiswick: I am a bit puzzled by the noble Baroness's line of questioning over whether those of us who tabled amendments, including myself, understood that point. Of course we understand that it would require, as she read out, a unanimous decision, including the British Government's decision, to do that. Nobody doubts that; it means to say that there are no circumstances in which we could be forced to take that decision against our will, and nobody is suggesting that we should. I do not really see what the issue at stake is in that matter. It requires unanimity, like everything else in this part of the Bill. The assumption appears to be-and perhaps it is shared by the noble Baroness-that we are legislating for some weak-kneed, limp-wristed British Government of the future, who will simply give everything away and collapse in a heap. I can see noble Lords' heads nodding-and there you are. You have proved beyond peradventure that you are trying to break one of the rules of the British constitution that one Parliament does not legislate for another.
Baroness Nicholson of Winterbourne: The point of my remarks is very simple. I believe most profoundly, along with a number of others who support the Bill, that that is exactly the sort of transfer of sovereignty-absolutely au fond the transfer of real sovereignty of the kind that matters most of all to us, which is our defence-which should surely be put in front of the British people. I refer to the making of a common defence and security policy. Let us take Amendment 28A; let us recall that the Council of Ministers and the European Council and the institutions of the European Union in their wisdom can make unanimous decisions without many people being present-not only without ourselves being present but without others who would agree with us and are also members of NATO, for example. So we can have a unanimous decision without core members of NATO being present. Those are common defence and security policy issues. I believe most powerfully that that is the fundamental transfer of real sovereignty, which puts many other things in the pale. It really matters.
I would be aghast if that happened through the mechanism that the Government have put forward in this Bill, which is a good Bill and not a great constitutional Bill as the noble Lord, Lord Hannay, suggested. I do not think it is that at all; it is a very good, solid, small and middle-of-the-road Bill, which opens the door for us to speak directly to the British public. I cannot help but feel that if we close the door again, as the noble Lord, Lord Hannay, and his colleagues would recommend, and put down a referendum merely on the euro, which it is extremely unlikely that we will ever join-look at Greece, for a start-and we do not have referenda, it will all be done by Twitter anyway. It will all be done on the web. This mass of knowledge base that the public have will be expressed in another way, and our Parliament will become ever more excluded from what in effect will be the national debate.
My only point is a simple one. The integrity of the Bill is demonstrated by the linkage with the people. The only way in which we as parliamentarians can offer the people a true linkage is by referendum power. I was interested and pleased to see-result or no
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Lord Goodhart: My Lords, I am entirely in disagreement with what my noble friend has been saying. This Bill is full of absurdities, and the most absurd of those is that referendums will have to be held for changes in 56 sets of EU rules, even if they are minor changes that are of no particular interest to members of the public.
There is a large number of these possible proceedings, listed especially in Clause 6 and Schedule 1. Of these, only one-the decision to make the euro the currency of the United Kingdom-would clearly justify a referendum. In practice, it is inconceivable that there will be any decision to seek to make our currency the euro. It is arguable that a decision under the Schengen protocol to remove UK border controls would also justify a referendum, but none of the other matters in the Bill does so.
Let me give an example. There are references in Clause 6 and Schedule 1 to a body called the "European Public Prosecutor's Office". That is the subject of my Amendments 36 and 42, which are in this group. The EPPO does not yet exist and may never exist, but under Article 86 of TFEU it could be created. The EPPO would then be responsible for,
It is possible that the EPPO might prove to be a useful and effective organisation and a future Government might wish to join it. The powers of an EPPO are not unimportant and an Act of Parliament would be justified, but why go on to a referendum? How many citizens of the United Kingdom would be affected, as individuals, by the EPPO? How many might be charged with,
Again, it would be only a few corporate bodies or fraudsters. A referendum on the EPPO would be of far less interest to the public than any on a Bill to, let us say, reconstruct the National Health Service, which is not going to be the subject of a referendum.
Referendums are also expensive. The cost of the AV referendum will be large but a referendum under this Bill will cost even more because it will be harder to couple it with parliamentary or local government elections, unless it is decided that it must be delayed for up to a year until we have the next electoral event. Not just one on the EPPO but any referendum under this Bill, except for those on joining the euro or opening the borders, would frankly attract very few votes. It would be a waste of time and money and attract a minimum of people. Almost all the other provisions in Clause 6 do no more than refer to the possibility of qualified majority voting or the substituting of the ordinary legislative procedure for a special legislative procedure-that is, that the special procedure will be replaced by the ordinary procedure. These matters are suitable for decision by Parliament but are patently inappropriate for referendums.
There is nothing whatever that is cynical in those of us who object to referendums when they would be inappropriate, or who believe that it is not the status quo but the proposals in the Bill which would be dreadful.
Lord Tomlinson: My Lords, I take great pleasure in following the noble Lord, Lord Goodhart. He dealt with that specific example of the European public prosecutor's office and quite rightly pointed out, rather rhetorically, how many would be affected. My question is: how many would care? In addition to his views that it would be a waste of time and money, I have one much more serious complaint about it. It would be the greatest democratic turn-off that we could have and would encourage a process of non-participation in public decision-making. Our democracy is in sufficient difficulty without us placing additional obstacles between the success of our democratic systems and the use of so-called democracy through referenda on many of these trivial issues.
The noble Lord, Lord Hamilton, spoke earlier about disillusioned citizens. My view is that Clause 6 drives a coach and horses through any sensible concept of parliamentary democracy. I can conceive of little that would more enrage our people than to see Parliament surrender its powers on anything other than the most serious constitutional issues in which the people ought to be engaged. We proudly go out and talk to all sorts of people about being the mother of Parliaments. I feel that with Clause 6 as it is, a lot of people might be tempted to question the paternity.
The noble Baroness, Lady Nicholson, reminded us that she has been a Member of the European Parliament. I remind your Lordships that I, too, spent 15 years in
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Baroness Nicholson of Winterbourne: I cannot raise the question of age discrimination, because that is now illegal, but might it be a little before my time that the noble Lord was in the European Parliament, and that, for example, the section which I have just quoted from the treaty of Lisbon is entirely new? The noble Lord might realise that things have changed.
Lord Tomlinson: I am glad that the noble Baroness felt it necessary to point that out. However, since I left the European Parliament, I have had the privilege of representing your Lordships' House in the Convention on the Future of Europe, which kept me a little abreast of some of the things that were going on. There is an idea that any one of the subjects listed in Schedule 1 is appropriate for public engagement through a referendum, in the hope that that will then provide the missing link to inspire the people of Britain in relation to Europe, but not one of them has that inspirational quality. If we are going to inspire people about Europe, as I said at Second Reading but will not repeat now, we have to address the issues of great concern: the environment, what we are doing on world poverty, the role of Europe in the world, and the things which we do together and which have created success, rather than engage them with every bit of trivia that we can imagine. In terms of referenda subjects, that is what Schedule 1 is.
As regards how we are going to behave, we have 56 areas of decision-making where referenda could overturn the wish of what we have always thought of as a sovereign Parliament. What are we really going to be saying to our negotiating partners? Will it be, "We're really in favour of this measure but we can't vote for it because we're not allowed", or, "If we give you a nod and a wink about being in favour of it, we have to put down a formal disclaimer? We certainly can't abstain because that will be interpreted as support". That will really be inspirational and reconnect the British people with decisions on Europe.
What will we in fact find ourselves doing? Rather than abstaining and giving reasoned objections, as regards many of the 56 areas of decision it will be easier and less absurd for a Government to vote against and to deny progress. In consequence, we will be marginalised in Europe, with other countries making each of the decisions that they need to in their national interest. We will be the defenders of their national self-interest by having created conditions that we cannot possibly fulfil.
We should be sensible about the Bill. I am not one who wants to make modest amendments to it; I think that it is a shoddy and shabby Bill that serves no useful purpose to the body politic and has no benefit of engagement, apart from to half a dozen anoraks in the odd referendum that there might be. If we really want to serve the British people, we will get rid of the Bill, and if we cannot do that, we should produce at least half a dozen sensible amendments that take the guts out of it, particularly Clause 6.
Lord Lamont of Lerwick: My Lords, I agree with the noble Lord, Lord Hannay, that it is a pity that so many of these amendments have been lumped together; it would have better if they had been somewhat disaggregated. We are talking more about Clause 6 than about Schedule 1, and whatever the objections in general to the Bill and the things listed in Schedule 1, I find it difficult to understand why people do not regard Clause 6 as eminently reasonable. That clause is about a substantial increase in competence and transfers of power.
All the areas listed are where Britain has special arrangements or opt-outs. It is true that they do not require treaty change but they are none the less significant and affect us in different ways, so, given the Bill, it is logical that they should be subject to the referendum provisions. Those issues include the euro, the European army that was referred to, border controls and the European public prosecutor. I listened to the noble Lord, Lord Goodhart, with great respect, as I always do, but I think that the establishment of the European public prosecutor is actually a very big issue, one that would be suitable to have a referendum on. I shall say a bit about that in a minute.
An argument was put forward from the Benches opposite that in having Clause 6, which deals with the passerelles, we were going against the Lisbon treaty after it had been ratified. That is not really the case; although those passerelles exist and were in the treaty, they say that we "may" do this, not that we "will" do this. These are significant changes.
I may add that I am told that the Germans have altered their treatment of passerelles to give more say in any ratification of parliaments in future, so this does not go against the Lisbon treaty. In any case, the argument that the passerelles represent the will of Lisbon may sometimes be true, but sometimes passerelles were put in the treaty simply because countries could not agree; one group of countries wanted to go ahead faster while another group did not, so they decided to compromise and have a passerelle to leave the issue for a later date. I remember it being reported that one of the Finnish participants in the Lisbon treaty said, "The passerelles were where we failed, where we couldn't agree".
Lord Dykes: When my noble friend referred to the Germans, he would accept, wouldn't he, that, like us and other member states, they are very keen to enhance the involvement of the national parliament in European decision-making at various different levels, including therefore making that process easier for the parliament to be involved in, but at the same time with the expectation in Germany, which is natural there, that the parliamentarians will be voting enthusiastically for any changes if they come to a vote? In the mean time, the basic law repeats the important clause on continued European integration.
Lord Lamont of Lerwick: I think that it is common ground that we are all in favour of increased national involvement in treaty changes and changes in the
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I said that I had listened carefully to the noble Lord, Lord Goodhart, and that I always do. I was with him on a committee that considered the European arrest warrant, and I was in a small minority in expressing strong reservations about it. Some of the arguments that were put forward then were, "Well, it's going to apply only to a few criminals", "It won't apply to very many people", and, "Why should people be worried about appearing in a court?". Many of us would argue now, though, that it was a hugely significant transfer of powers that has now worked out in the way that it was intended to. There have been many examples of injustice, certainly several that are known to me personally, and it is something that I very much regret. I hope that we might return to that subject and amend the arrangements that exist.
Fair enough if we are talking about offences against the Union, as the noble Lord, Lord Goodhart, has often emphasised, but one wonders in what ways those words might be stretched. One notices that subsection (4) says:
"The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension".
I know that the noble Lord said that he was not in favour of that extension, but this is a big area and one that is suitable to give great consideration to. Peter Hain, Britain's representative at the convention leading up to the constitution that never was, strongly opposed participation in the EPP. He said:
"Criminal prosecution should be essentially a national responsibility. Our national prosecutors must be accountable to national courts and ultimately to our national parliaments. The European Public Prosecutor would be accountable to neither".
It is true that these are not treaty changes but they are big increases in competence, brought about through the passerelle, which we do not have to endorse. In ratifying Lisbon, we were not endorsing that we would automatically let these things go through. For that reason I am strongly against the amendment.
Lord Goodhart: The noble Lord is right to say that the European arrest warrant has not worked out as properly as it should have done or as we expected it to at the time. However, this matter wholly involves people who are concerned with international crime. How does the noble Lord see that it could operate to the damage of ordinary citizens of this country, who make up the vast majority of those who find themselves in court?
Lord Lamont of Lerwick: I am very sorry that the noble and learned Lord, Lord Goldsmith, is not here; he was here earlier. I read what he said the other day. If I have in any way misrepresented his views, I am sure he will correct me. I read that he was very firmly one of those in the previous Government who took the view that the best way of dealing with international crime was not by the creation of new international authorities but through co-operation between national authorities. That was his very firm view. I thank the noble Lord, Lord Goodhart, for what he said about the European arrest warrant. I know he felt it should have been combined with a system of European bail, which would have made it very different.
Lord Davies of Stamford: I want first to address some of the general points that have been made in this debate and then focus on Amendment 42, with which I thoroughly agree. I very much support the arguments of the noble Lord, Lord Goodhart, on that. Several general points have been made. Some of this debate has been a bit of a Second Reading debate, which is a very good thing. These issues are extremely important and I accept that many of these amendments cut across the thrust of the Bill itself. They force the Government to explain exactly what their purposes are. That is a most important aspect of this evening's proceedings. We are making some progress. I am grateful to the noble Lord, Lord Lamont, for recognising that we on this side of the House are very much in favour of enhanced parliamentary scrutiny of European Union decisions. If the argument was about that, there would not be an argument. We would be pretty much in agreement and would have put the Bill to bed long ago. The issue is entirely about referenda, and whether it is sensible, practical and ever seriously intended to have referenda. It is important that, as a result of the proceedings of this Committee, we elucidate that point.
The noble Lord, Lord Hannay, said that he thought it was a sick joke-strong words, but justified-to suppose that the Bill would in any way enhance our relationship with our partners in the EU or enhance the British public's support for our membership of the EU. I do not cast aspersions on the sincerity of any Member of this House. I am sure the people who say that they believe that the Bill will somehow enhance the British public's understanding of and support for the European Union have genuinely persuaded themselves that that is the case. However, it is quite difficult to follow that argument, which is so obviously contrary to the historical facts. We all know what those are: Mr Cameron offered this Bill to his Eurosceptics as a sop. It was put to them as being a victory for the Conservative Party in the negotiations that led to the coalition agreement. Indeed, Mr Cameron and his Whips have been going around the Back Benches of the Tory party, as I know, saying, "You must be pleased with us now. We have at least brought forward this Bill, which stops any further growth in powers for the European Union and preserves parliamentary sovereignty". That is an aspect we will come to later in the Bill. That is historical fact. That is how it has been presented and the way it happened. There is no question at all of anybody saying, "Let's see what we can do to enhance the British public's understanding of and
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Lord Ahmad of Wimbledon: My noble friend Lord Hamilton referred earlier to the importance of connecting again with the British people. Is the noble Lord, Lord Davies, suggesting that military independence, the loss of our decision-making around defence and judicial independence are less important than financial independence?
Lord Ahmad of Wimbledon: My right honourable friend the Prime Minister put forward the Bill, which is all about connecting with the British people, not with the Whips. The important thing is what the British people care about. They care about our defence, our military independence and our financial independence. That is what this Bill is all about.
Lord Davies of Stamford: The British people clearly care very much about the defence of the country; that is another, wider subject. I have no doubt at all that they are very unhappy with what the Government are doing in that regard. As the noble Lord may know, I have always supported a greater degree of cohesion in European defence matters. However, the amendments that we are discussing are not concerned with that issue. I want to get back to the Bill and the amendments that we are discussing.
Amendment 42, which deals with the European public prosecutor's office, exposes the Bill's lack of sincerity. Of course it is possible to make an argument for having a referendum about our joining the euro, or possibly about our joining Schengen, but is it really credible in this regard? Does anybody really think for a second that any Government would seriously have a referendum about the public prosecutor's office? I do not think that anybody could possibly believe that is a realistic possibility.
"In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust".
provide the answer to the point made by the noble Lord, Lord Lamont, about having national jurisdiction. This country clearly does not have jurisdiction in financial crimes committed in Brussels or elsewhere in the Union against the financial interests of the Union. We are a member of the Union and suffer as a result of those crimes, but our courts may very well not have jurisdiction in such circumstances. Indeed, they are most unlikely to have it.
Who is going to oppose that? If you are going to have a referendum, have one on something that is
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"The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the regulation provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences".
What is controversial about that? Where is the substance there for a genuine referendum campaign? Can anybody consider suggesting to the British public that we spend £1 million of their money on having a referendum on such a subject, let alone tens of millions of pounds? The noble Lord, Lord Goodhart, pointed out that almost certainly a referendum on that subject could not be linked to some local or national election, and so the costs would be disproportionately high. It just does not ring true. I said that on Second Reading and I say it again now. The Government will have to do very much better to try to persuade the British public of their sincerity in that matter than they are doing.
The noble Lord, Lord Lamont, says that the treaty may extend the remit of the European public prosecutor's office to enable it to deal with cross-border crimes within the European Union. That is perfectly true. He quoted paragraph 4, but it is clear that that decision would have to be taken by unanimity, so we have an effective complete lock on that for the rest of time. There is no threat of that happening without our having to take a decision on it if we wanted to. Of course we should take a decision only with parliamentary support. In fact, we should take a decision to join the European prosecutor's office in the first place only with parliamentary support-whether through a resolution or a Bill, I do not particularly care; I am all in favour of that.
If the British public do not think that we in Parliament are capable of taking a decision on a matter which is a no-brainer-is it not?-to pursue financial fraud more effectively, then what is the purpose of having a Parliament? It does not even begin to make any sense.
I am very grateful to the noble Lord, Lord Goodhart, for bringing forward this amendment, as it shows up the complete hollowness of the Bill. It is insincere and simply does not make any sense. It is not for real. It is like dealing with a dishonest salesman: you know perfectly well that what he is saying is not the truth; you try to get at the truth and his real intentions, but it is clear that the real intentions are not the ones being overtly expressed. That is my problem with the Bill. It is a very serious problem. I am very grateful to the noble Lord, Lord Goodhart, and to his fellow signatories to the amendment for bringing it forward. I hope that we get an answer from the Government. What is the reason for this obsession with the public prosecutor's office? A respectable answer may be this: "We are stopping everything. Of course, it would be absurd to have a referendum on the public prosecutor's office
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Baroness Falkner of Margravine: I thank the noble Lord for giving way, particularly after he spoke so eloquently about political dogmatism. He will of course know all about political dogmatism. He has not helped his arguments by his tone of incredulity that perfectly sensible noble Lords across this Chamber might disagree with each other on the importance of giving away power or competence to the European public prosecutor's office. He should be able to disagree with that without descending to the level of incredulity.
I will tell the noble Lord why his argument does not work. If he thinks back, the article on the European public prosecutor's office to which he referred, and which I have looked up, talks about the financial interests of the Union. It does not define, word by word, what those interests might be, or what acts those who go against the financial interests of the Union might have to perpetrate to do so. I remind him of the NatWest four and the extradition treaty with the United States. Many Members across this House and, I am sure, in the other place, are extremely uncomfortable about what happened there. Widely defined clauses can contain any number of provisions and can have all sorts of side effects. I just wish that the noble Lord would accept that the article is widely defined.
Lord Davies of Stamford: The noble Baroness has made one of the longest interventions that I have ever taken in my time in either House. I shall not reply at such length, but I will say, first, that I have never made ad hominem or ad feminam arguments in this place; I have tried to address the issues and I hope that she will try to do the same. Secondly, by drawing an analogy with the people who were extradited to the United States for commercial crimes, she has completely misunderstood not only the point I was making but particular articles in the treaty. All the crimes foreseen in Article 86 as matters for the public prosecutor are defined as those that are,
As I said, it is extraordinary for the Government to decide specifically to provide for a referendum on a matter that can scarcely be of great public controversy. It is very difficult for me or the public to see what national damage could be done. The most respectable explanation that I can think of is that the Government are acting in an utterly narrow-minded and dogmatic
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Lord Dykes: As I hope my noble friend will agree, I have put my name to the amendments and wish briefly to address the House on them, following the remarks of the noble Lord, Lord Hannay. Although the noble Lord is no longer in the Chamber, he should receive the thanks of the House for revealing the shocking irony that Clause 6 is in many ways more obnoxious than Clauses 2, 3 and 4 in terms of what it does to weaken Parliament and, ironically, government and ministerial decision-making in European meetings which would take place as a result of the clauses.
Amendments 32, 33, 34, 35 and so on, including my noble friend's amendments on the EPPO, try again to appeal to the Government to respond reasonably. There has already been a hint, to which the Labour spokesman referred, that the Government were beginning to listen to deep and genuine arguments from all parts of the House against the details of the Bill.
Amendment 32 and subsequent amendments remove the referendum condition from the beginning of Clause 6, to deal with items not covered in Clauses 2, 3 and 4. These are specified decisions postulated in the TEU or the TFEU that do not need a new treaty or Article 48(6) treatment, because the two categories listed mirror the list set out in earlier clauses; and the second category relates to the so-called one-way decisions that are by definition irreversible. Similarly to the previous clauses, especially Clauses 3 and 4, it would greatly improve the efficacy and good faith of the Bill if those subsections were either eliminated altogether or substantially amended to soften the harsh impact of the provisions.
The subsequent amendments in this cluster, under the names of the same promoters, would remove the referendum condition in other areas of decision-making. I will not go into great detail, but Amendment 33 omits the whole of Clause 6(2) to (6) and cancels the need for referenda on QMV, EPPO, social policy items, the environment and so on. Those are all worthy of consideration by the Government once again to reinforce and return power to the British Parliament, which has been seriously undermined by the constant nagging by the anti-Europeans that Parliament has somehow let down the British people about Europe. That is not the case in any evidential way, and we now need to restore the balance to the British Parliament-both Houses-in future. Incidentally, it is interesting to muse that according to page 9 of the Constitution Committee's report, if change in the House of Lords were covered by the definition covering abolition of either House of Parliament, then change in a fully elected House of Lords also should be the subject of a referendum. I bet that it will not be, bearing in mind what happened last Thursday.
Under the clause, no ministerial judgment is exercised on the transfer of power argument, because the primary legislation and referendum are automatic. There are
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Lord Wallace of Saltaire: I intervene to say that the Daily Express said that the British Government were being forced to fly the European flag on government buildings. The noble Lord has just demonstrated that that is a slight exaggeration.
Lord Dykes: I entirely accept that. Indeed, no member state is forced to fly the flag. It is interesting that in Germany, France, Italy and other countries, routinely, all or most government buildings fly the European flag as well as the national flag. We know that President Sarkozy, when he has a television interview, always has, alongside the tricolour, the European flag.
Lord Pearson of Rannoch: Will the noble Lord admit that the absence of the European flag on most of our public buildings reflects the wishes of the British people, if not the wishes of our Europhile political class?
Lord Dykes: The British people have not been consulted on that in any way. If they were, they would probably be very much in favour of it. I think that the younger generation, in particular, would like to see the European flag flying alongside the national flag. You can be a patriotic Britisher and a keen European as well, and there are plenty of them.
The feeling about Clause 6 is mounting that it will have a worse effect than the previous clauses. Yet again, I do not believe that the Government have thought out the dangerous subsections. Any British Government of whatever colour or, in the case of a coalition, whatever combination of parties, could find to their dismay that the communitarian habit of working together by positive and constructive consensus for the greater European benefit and that of the national member states would be stymied by a sudden, brutal UK stop-all on routine matters of state business in the Council of Ministers. We would therefore paralyse ourselves for no good reason other than the propagandistic appeasement of the Daily Mail, the Sun, my noble friend Lord Hamilton and a few other headbangers in the Commons on the Conservative side. I did not mean to say that my noble friend Lord Hamilton was a headbanger; far from it, he is a very respected Peer who succeeded me as chairman of the European Atlantic group, so he must be a very good bloke indeed. We would also bring the whole European Council process to a stop. We recall that in the first section of the coalition agreement on Europe the Government wanted to play a leading role and to be a positive participant
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Lisbon went wider on the machinery of collective decision-making than previous treaties. It included similar techniques to the ones first introduced by the Single European Act, when huge new powers were agreed for the Union without the UK authorities and indeed Mrs Thatcher, in particular, running away, as was alluded to earlier. Why were we so surprised to see other member Governments appreciating our zeal for the Single European Act and wishing to apply its mechanisms to other areas as respectable normative integration between friendly, like-minded and patriotic member countries? Why are we so insecure that we have to agree with Bill Cash and John Redwood on these issues? If the Government were sensibly to accept all or some of the original main amendments in this rather unwieldy and elaborate cluster, they would be doing themselves and Parliament a big favour in sparing us from the agonies that will surely arise under this dotty clause.
Lord Stoddart of Swindon: My Lords, first, I agree with the noble Lord, Lord Lamont, in his criticism of the way that these amendments are being handled. Altogether, 19 amendments have been put into one group, but I believe that a better debate would have been had if we had been able to discuss amendments on individual clauses. I also agree with the noble Lord, Lord Hamilton, that it would have been far better if we could have had our Ministers tied to the mast with their ears waxed up, as they would not have hit the rocks. We have hit so many rocks during the past 40 or more years that we have been a member of the European Union. Of course, when we joined it, it was not a European Union but a common market, and no one ever thought that it was going to be the sort of European Union that we have now. It was sold as a common market.
Throughout this debate and in previous debates we have heard a great deal about parliamentary democracy. I believe very much in parliamentary democracy and I have been around it for quite a long time. However, we gave away our real parliamentary democracy when Parliament passed the European Communities Act 1972.
Lord Dykes: I am most grateful to the noble Lord for giving way. Should he not address himself specifically to this clause and the amendments thereon, rather than make yet another Second Reading speech? He makes exactly the same speech on every single occasion.
Lord Stoddart of Swindon: I explained why it would have been far better if many of the amendments had been grouped differently. Perhaps we could then have spoken to each and every one of them according to what they were proposing. It is difficult to speak to this conglomerate of 19 amendments, and that is why I want to take up the matter of parliamentary democracy
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Lord Pearson of Rannoch: My Lords, I wonder whether the noble Lord really means to say that we gave away our parliamentary sovereignty. Surely we have been paying Brussels billions a year to take it from us. We did not give it; we are paying them to take it.
Lord Stoddart of Swindon: I am afraid that that was by parliamentary decision. That is precisely what I am trying to say. We gave decision-making in relation to Europe to the European Union which has the last word. We talk about parliamentary democracy but when it comes to the push and we discuss the various amendments that have been made through treaty making, we are told that Parliament cannot make amendments to the treaty. All we can do as a Parliament is accept or not accept the treaty. We are not allowed to alter the treaties because they are made by Governments. The treaty they make is the treaty that matters and Parliament has no power at all to amend any provision of the treaties that have been passed since the European Communities Act 1972. That cannot be denied.
In relation to the transfer of power in each and every treaty, particularly in the Single European Act, the Maastricht treaty and eventually the Lisbon treaty, we have given powers to Europe without Parliament being able to say yea or nay. That is why we are in this position. It is because Parliament has not been able to make decisions about individual matters and the powers that have been transferred. That is why we have reached this decision. Ultimately, because a referendum was promised on the Lisbon treaty and it was not granted, the people are so outraged that they have demanded that something should be done. Let us make no mistake about it. This issue of sovereignty, this issue of who governs Britain, is not a party political matter. It transcends party politics. It is about who governs Britain. Unless that is realised and the people are considered and given the opportunity of speaking, the European Union will sink further into public disapproval than it already has.
Lord Stoddart of Swindon: They are grouped so I am speaking to all of them. I am actually speaking in favour of the Government and I was just coming to that. I was going to say that this issue transcends party politics and that the Government have been forced by
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Baroness Nicholson of Winterbourne: Perhaps the noble Lord will explain, given his right and proper loyalty to the sovereignty of the United Kingdom, why he supports amendments that make the euro, which after all is a financial mechanism, of greater value in sovereignty terms than defence, which was the issue that I raised.
Lord Stoddart of Swindon: Every issue that transfers powers from this country to the European Union is very important. The Bill is about ensuring that when great powers are transferred, the people of this country as well as Parliament will have a say.
It is a pity that we have got to this stage. Nevertheless, because there has not been proper parliamentary scrutiny over the 40 years that we have been a member of the European Union, we have now got to a stage where the Government have had to bow to the demand that the people should be consulted and proper parliamentary scrutiny should happen.
Lord Risby: My Lords, we have heard a great deal in this debate about marginalisation. We should recall the words of the noble Lord, Lord Mandelson, who talked about the pragmatic nature of this Government. As we reflect on what the coalition Government have done, we should recognise that none of the grandstanding and grand old Duke of York activity that we have seen from successive Governments has been characteristic of this Government. It is worth reminding ourselves of the pragmatic relationship that has been established by the Government with the institutions of the European Union.
The amendments deal with the removal of all treaty provisions requiring a referendum, except euro membership. I accept the sincerity of what has been said by a number of noble Lords. Nevertheless, I suspect that many who have spoken in this debate do not like referendums at all. I find it curious that they accept the idea of a referendum on the euro when in principle many would not like a referendum at all, and that they thereby elevate the euro to a level of importance that is unique and special, to the exclusion of other considerations in the Bill.
There is a settled view on this in the nation, which should be accepted. However, there are wide areas of EU activity that alienate the public and enhance the view that there is a democratic deficit. Judicial independence, military independence, the ability to control our own borders, social policy including the rights of workers and employment terms and conditions, could not be blocked. Given our history, particularly in the latter area, this is a crucial issue. They are absolutely not crucial.
Clause 6 sets out which passerelles would automatically trigger a referendum if powers or competences were moved from the UK to the EU. We touched, for example, on the matter of defence. This reflects the reality for us that EU member states have different relationships with third countries and different foreign policy priorities. For example, the UK has particularly strong relationships with interests in the Commonwealth. It would be wrong to give the EU the ability to prevent us developing these relationships. I am sure that that is perfectly logical, and it is covered in Article 31(3).
I turn to measures on working conditions and social security. Noble Lords will know that QMV already applies to many decisions concerning the health and safety of workers, working conditions, informing and consulting workers, combating social exclusion, modernising social protection systems, as well as to decisions in areas such as the European social fund. However, there are important things left for unanimity; for example, social security and the social protection of workers, the protection of workers when their employment contract is terminated, et cetera. These things can have a huge impact on the life of an individual nation and the businesses that add to the prosperity of that nation. Any move to QMV could jeopardise independent national decisions on that score. If we look at environmental matters, for example, they are mostly covered by QMV, but there are others that are still subject to unanimity. We would, of course, like to retain national control of what is left on the environment where there is a fiscal element attached to them: town and country planning; the management of water resources or the availability of those resources or land use; and, of course, the choice of energy resources and the general structure of the energy supply. These are very important for people at an individual level, a community level and a national level.
So, as we look at this debate and hear the discussion, I find it rather perplexing that our currency alone seems to have a critical aspect for our relationship with the EU. I think it is misplaced. There are all these other areas of vital concern to our national interest which concern people in terms of our relationship with the European Union. Coming back to my original point, it is precisely because we want to defuse the difficulties that have arisen in terms of public opinion and the public's attitude to the European Union with a totally pragmatic Government-that has been obvious in the past year-that this Bill is in place. If we have red lines, they have to be very clear and very red. The amendments would make the Bill incoherent and make the public very suspicious and alienated. That is exactly what this Bill seeks to avoid.
Lord Flight: My Lords, I rise to address the amendments tabled in my name. As I understand it, Clause 6 addresses areas that are suitable for the requirement of a referendum in two of the ways in
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The amendments are grouped somewhat strangely in that my Amendments 35A, 35B, 48A and 48B are on one side of the argument and all the others, with the exception of Amendment 40A, are in one way or other seeking to reduce situations where a referendum and Act of Parliament are required. Self-evidently, I do not agree with those amendments.
Lord Hannay of Chiswick: It is astonishing how little listening and how much assertion there is in this debate. I spent quite a lot of time trying to say that the amendments in this group that I and others have tabled do not seek to remove the requirement for primary legislation by Parliament when any of these changes are made. I speak very slowly because it is a point that the noble Lord has just contradicted. Indeed, they are designed to remove the referendum requirement, but not the requirement for primary legislation, which is an addition to the existing requirement under the Lisbon ratification.
Lord Flight: I thank the noble Lord for his interruption. He enlightens Members of this House as he has done previously. I am well aware that he accepts the Act of Parliament and that it is the referendum to which he is opposed. He obviously lacks faith in the trust of ordinary people and for some reason does not seem to realise that the tool of the referendum is essentially there as a deterrent in order to discourage the EU gathering more power unto itself and the sort of behaviour that we had from the Government who were in power in this country until the most recent general election.
I will, if I may, continue. The amendments in my name cover examples of areas that come to light, on looking at the various territories to which Clause 6 might relate, in which there is indeed scope for power to transfer from the EU without the check of a referendum, and sometimes even without the check of an Act of Parliament. I am quite sure that there are many other areas in which there remains scope for powers to transfer. The point of my two amendments is, above all, that within the range of areas that it might be deemed appropriate to require a referendum, there is balance in the Bill-a whole range of territories that transfer powers but in which referenda are not required.
My amendments relate to two cases. First, as your Lordships will be aware, Article 25 of the Treaty on the Functioning of the European Union allows the Council to adopt any provisions to strengthen or to add to the rights listed in Article 20(2) of the TFEU. Article 25, which deals with the basic rights of EU citizens, appears to allow a fundamental extension of the scope of EU law. This in effect would alter the list of rights in Article 20(2). Article 25 provisions could well amount to treaty change. Extended rights for EU citizens would transfer power from the UK over whether it accorded such rights to nationals of other EU
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The second territory is slightly more complex. Currently the EU is not a party to the European Convention on Human Rights. Lisbon introduced Article 6(2) of the TEU, which provides that the EU will accede to the ECHR, and as your Lordships will be aware this is currently being negotiated. The issue here is that any EU law that is modified in response to a finding of non-compatibility with ECHR rights would subsequently be binding on member states, so if the EU accedes to all ECHR rights-and, yes, I am well aware that there has to be unanimity for it so to do and that it has to go through the appropriate procedures in each country-EU legislation could be altered as a result. Therefore, EU accession to the ECHR could result in a transfer of power from the UK to the EU over whether the UK is bound by the jurisdiction of the European Court of Human Rights in areas that fall within the wide scope of EU law. So here, again, we have the question as to whether such a transfer is appropriate for a referendum.
Lord Hannay of Chiswick: I am sorry to interrupt the noble Lord again, but I think it would be helpful if he recognised that the provision in Lisbon that enables the EU to accede to the European Convention on Human Rights is in fact a transfer of powers away from the European Union, not towards it from this country, and it is a transfer to an organisation and a set of judicial procedures to which we are already a party. I therefore find it extraordinarily hard to see how the noble Lord manages to weave this into the tapestry of the Government's excessive-in my view, in any case-desire to subject matters to referendums.
Lord Flight:While there is obviously a differentiation between the European Court of Human Rights and the EU, the point I was making was that if there is accession the result could be an important overriding of UK law by the ECHR and decisions taken by the ECHR in due course becoming binding in the law of this land. This is effectively a change and a giving away of power by the UK to the ECHR rather than the EU in terms of its law making.
To conclude, these two amendments are essentially illustrative. As I commented earlier, looking across the total territory, there are many areas where the arrangements surrounding the EU and bodies such as the ECHR continue to cater for powers being taken without the requirement of an Act of Parliament and certainly without the requirement of citizens having a say in it. The argument that this Bill is right over the top in terms of the areas where it requires a referendum is nonsense. Let me assure your Lordships that there are scores of other areas where a transfer of power could occur where no referendum is being provided for.
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