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Monday, 23 May 2011.
2.30 pm
Prayers-read by the Lord Bishop of Blackburn.
Death of a Member: Lord Elliott of Morpeth
Announcement
2.37 pm
The Lord Speaker (Baroness Hayman): My Lords, I regret that I have to inform the House of the death on 20 May of the noble Lord, Lord Elliott of Morpeth. On behalf of the House, I extend condolences to the noble Lord's family and friends.
Olympic Games 2012: London Air Quality
Question
2.37 pm
To ask Her Majesty's Government what action they are taking to respond to the report of the Olympic Delivery Authority that air quality in London will exceed European Union limits during the 2012 Olympic Games.
Earl Attlee: My Lords, the Government are committed to working towards the European Union's air quality standards and have recently made an extra £5 million available to help the mayor tackle some of London's worst pollution hotspots. During the Olympic Games our ambition is that all spectators should travel to London venues by public transport, cycling or on foot. These and other measures will help minimise air quality risks in London during the Games.
Lord Berkeley: I am grateful to the Minister for that reply. Will he say who is responsible for keeping the air at the right quality? Is it TfL, the GLA or the Government? Secondly, if there is very little wind during the Olympic Games and PM10 values exceed the limit, is he aware that the Government could be fined £180 million by the International Olympic Committee? That is what will happen if the pollution is as bad as it was in Beijing. Does he have a contingency plan?
Earl Attlee: My Lords, the answer to the noble Lord's first question is simple. Everyone is responsible: the Government, the mayor, TfL, LOCOG, the ODA and, most importantly, individuals who make their own transport decisions. As regards the noble Lord's second question, the host city contract states that the International Olympic Committee can withhold payment from LOCOG if an event in the Olympic and Paralympic Games cannot take place for any reason or if there is
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Baroness Kramer: My Lords, I support the noble Lord, Lord Berkeley, in raising this question. The Minister will be aware that London has already violated its entire annual allowance for PM10s for 2011 and we are in only the fifth month of the year. Will he give us some assurance that London will at least look at putting in place a temporary clean air zone around central London and the Olympic venues during the Olympics? If it does not, does he agree that we will end up doing what Beijing did, which was to resort to an almost impossible alternation between allowing in cars with odd-numbered plates one day and even-numbered plates the next in order to manage air quality problems?
Earl Attlee: My noble friend will be aware that the PM10 problem occurs only in a few hotspots. By and large, the PM10 problem is licked. She talked about temporary exclusion zones. That would be a matter for the mayor.
Baroness Oppenheim-Barnes: My Lords, does my noble friend agree that air quality is made a great deal worse than it would otherwise be by the traffic congestion caused by roadworks over practically every inch of London roads?
Earl Attlee: My Lords, my noble friend makes an important point. Some of the congestion caused by roadworks has produced some traffic activity and therefore produced some pollution.
Lord Hughes of Woodside: Would the shorter and more accurate Answer to the Question asked by my noble friend Lord Berkeley be that no one is responsible?
Earl Attlee: No, my Lords. Everyone is responsible.
Lord Brooke of Sutton Mandeville: My Lords, what was the weather like in 1948 and, while we are at it, in 1908 as well?
Earl Attlee: My Lords, I am not aware of the weather in those periods. All noble Lords know that legislation over the years has vastly improved the environment in which we live. We need only to think of the Clean Air Act and the benefits we got from it.
Lord Stoddart of Swindon: My Lords, I have seen reports that London or the Government are likely to be fined £300 million for pollution in London. If that is true, I hope it is not going to add to our already massive contribution to the EU budget this year and in subsequent years.
Earl Attlee: My Lords, I obviously failed to explain properly to the noble Lord, Lord Berkeley, that there is very little chance indeed of us being fined by the International Olympic Committee. We could be fined
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Lord Davies of Coity: My Lords, in answer to an earlier question the Minister said that we are all responsible. Is that not a case of the Government again passing the buck?
Earl Attlee: My Lords, we are certainly not passing the buck. We have helped the mayor with a £5 million grant to deal with some of the technical issues; for instance, fitting particulate traps to London buses to deal with some the PM10 hotspots that I talked about earlier.
Lord Pearson of Rannoch: Can the Minister bring us up to date with the infraction proceedings against the city of Brussels which is, I think, the only major European city which still discharges all its raw sewage into its local river? Does the Minister agree that were the wind to be blowing in the south, this might have quite an effect on the Olympic Games?
Earl Attlee: My Lords, I answer for the Department for Transport and for the whole of the Government but, fortunately, I have no responsibilities for the city of Brussels.
Lord West of Spithead: My Lords, I declare an interest as a waterman and lighterman. Will the Minister say whether we have a comprehensive plan for greater use of the river, bearing in mind that we have been very poor at using barges, as we are committed to doing, for the Olympic build programme?
Earl Attlee: My Lords, I rather think that we have missed the boat on that because the infrastructure is largely built. However, when I visited the Port of London Authority I detected some of the work that the noble Lord had undertaken.
Housing: Market Stability
Question
2.45 pm
To ask Her Majesty's Government what action they will take following the Joseph Rowntree Foundation's investigation into the creation of a sustainable housing market.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, the Government welcome the Joseph Rowntree Foundation's investigation and report, which was published last Tuesday. We share its desire to see a fairer, more stable housing market that
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Lord Best: I thank the Minister for that very positive and helpful reply. I am sure that this report will be helpful to Ministers, and indeed to everyone who wants to see a stable housing market, not boom and bust. Does the Minister agree that the level of mortgage repossessions, which are now running at 100 a day, might get a lot worse if interest rates and unemployment rise? If so, does she agree that the proposals in this new report for a mortgage protection payment insurance scheme to provide a safety net for homebuyers would be good not only in preventing their homelessness but in stabilising the housing market at a difficult time?
Baroness Hanham: My Lords, we welcome any proposals that will enable us to work with the industry to try to find a way around the barriers faced by the insurance scheme at the moment. We currently welcome private insurance solutions and recognise that there are enormous challenges for first-time buyers. We are already running the mortgage rescue scheme, as I am sure the noble Lord knows. Some £200 million has been put into that scheme already, and we have already helped 38,000 households with that money as well as with advice and support. So it is not as though the Government are not doing anything-we are making substantial efforts-and if the economy were to stabilise and settle down, much of this problem would go away.
Lord Morris of Handsworth: My Lords, I declare an interest as chair of the Midland Heart Housing Association. Are the Government not aware that a sustainable housing sector depends on its ability to borrow and on the willingness of the banks to lend? Can the Minister tell us what action Project Merlin can now take to stimulate the housing sector by assisting it in its borrowing needs?
Baroness Hanham: My Lords, this goes back a little to my answer to the previous question. The economy, which is the first priority of this Government, needs to be effectively stabilised. After that, we hope that the banks will feel able to bring themselves more into the market to help particularly first-time buyers with mortgages. However, the first line of defence will have to be making sure that the economy is right.
Lord Palmer of Childs Hill: My Lords, as the Joseph Rowntree report says, the main reason for the problem is the shortage of land. Would my noble friend comment on whether the Government will look at how to encourage the release of unused land, such as in land auctions or the taxation of unused land, to encourage the owners and developers of land to bring it into use even when its value might be lower than they expect?
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Baroness Hanham: My Lords, I am not aware at the moment of the Government having any intention of causing land auctions or doing what else the noble Lord describes. Under the Localism Bill, of course, we are preparing for neighbourhood plans, which will identify land that is available, and we will also look to the community right to challenge to identify and challenge land that is available for development. The Government are moving along the lines of trying to ensure that land is freed up and are also looking at public land to ensure that, if it is available, it can be used for housing.
Lord Alton of Liverpool: When the noble Baroness looks at the strategy that she says will be published in the autumn, will she particularly look at the role that housing co-operatives, self-build and empty housing can play in this strategy? Does she agree that-especially as regards empty properties in northern towns and cities where far too many such properties often blight whole communities as they become tinder-boxes and breeding grounds for vermin-these properties need to be put back into use for people on housing waiting lists?
Baroness Hanham: My Lords, I wholly agree with what the noble Lord has said. It is a sad fact that there are many empty properties which can or should be brought back into use. We have already allocated money to this and within the new homes money we will identify such empty properties. For that, £100 million is already available. It is not occurring just in the north but across the country. We are anxious too to make sure that homes are brought up a decent standard. In areas-particularly in the north, I guess-where traditionally a lot of houses have been left empty, it is perfectly right that those are brought back into use rather than just demolished or left.
Lord Richard: Are the Government satisfied at the readiness of the banks to lend money for housing development?
Baroness Hanham: My Lords, what the banks do is up to the banks. We will be very pleased when there is a release of money for mortgages to help.
Lord Desai: Do the Government not agree that it is time we weaned people off the desire to buy houses and to have a good rental sector, so that people can rent safely, with good tenure, an affordable house?
Baroness Hanham: My Lords, I would agree with that and I do not think that this Government are doing anything to stop renting in any way. We have encouraged the private rented sector, which is a very important part of housing in this country. As noble Lords know, we are introducing the affordable rent for housing, which will also assist people. We have already put £6.5 billion into the development of new affordable homes over the CSR review period. The Government are doing a lot to ensure that more housing will be made available and coming on stream.
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Lord Roberts of Llandudno: With the growth in out-of-town retail developments and the empty shopping centres, are the Government giving any thought or guidance to the change of use of some retail premises in the rundown areas of our towns to change them into housing for general use?
Baroness Hanham: My Lords, I think that this is being considered under planning legislation for the future. It is not far enough advanced for me to give the noble Lord any further information than that but I know that it is recognised as being a possible way out.
Banking: Savings Accounts
Question
2.53 pm
Asked By Baroness Stowell of Beeston
To ask Her Majesty's Government what assessment they have made of the levels of interest set by banks on cash individual savings accounts as compared with other savings accounts.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the interest rates offered on savings accounts are a commercial decision for providers and, as such, vary. The Money Advice Service, which was set up by the Government, provides information and advice to encourage consumers to manage their finances proactively and to shop around for the best deal. The benefits of tax-free savings offered by cash ISAs allow the majority of savers to receive a tax advantage on all their cash savings.
Baroness Stowell of Beeston: My Lords, I thank my noble friend for his reply. Does he agree that the tax relief available on cash ISAs is offered by the Treasury as an advantage for savers, not a commercial opportunity for the banks? If he does agree, will he join me today in demanding two things from the banks? The first is that they should address immediately the discrepancy between the interest rates offered on some fixed-rate savings bonds and fixed-rate cash ISAs. The second is that they should give a guarantee to their customers that never again will they offer lower interest rates on fixed-rate cash ISAs than those they offer on fixed-rate savings bonds?
Lord Sassoon: My Lords, I am grateful to my noble friend for raising this important area of savings. We should remind ourselves that a total of 23 million people hold ISA accounts, and of those 15.5 million hold cash ISAs, so this very important part of the savings market is held by some 40 per cent of households. My noble friend's Question prompted me to speak to the British Bankers' Association today and I can confirm that the association is working on its own recommendations following on from those made last year by the Office of Fair Trading after it had looked at this area. For example, from early 2012, additional information about the interest rates being offered will be shown on all statements. Further, in line with the
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Lord Newby: My Lords, in view of the success of the tax-free index-linked bond issue recently offered by National Savings & Investments, what plans do the Government have to keep this very popular product on the market in the future?
Lord Sassoon: I am grateful to my noble friend for drawing attention to the fact that the 48th series of fixed-interest and index-linked savings certificates was launched on 12 May. It is our intention to keep this series on sale for a sustained period. Of course, there is only a certain amount of availability within the targets we set for NS&I, but I am pleased that we are able to fill a gap in the savings market by putting particularly index-linked savings certificates on sale again. They are proving to be popular, but I am advised that there is still a supply of them available. Noble Lords who would like to invest in them do not need to rush out of the Chamber at this moment.
Lord McFall of Alcluith: My Lords, will the Minister take this opportunity to speak to the Independent Commission on Banking, the Vickers commission, and ask it to emphasise the concept of treating customers fairly so that savers feel, as the noble Baroness said in her supplementary question, that they are both getting a good deal and indeed can be seen to be getting that?
Lord Sassoon: My Lords, this will be the focus of some of our attention when the legislation for the new regulatory structure comes forward. Treating customers fairly in the broadest sense is a critical part of what the FSA has been working on over the past few years. As we look at the remit, particularly for the new Prudential Regulation Authority within the regulatory structure, it is important to make sure that a proper focus is placed on that strand of work going forward. No doubt your Lordships will soon have an opportunity to consider these matters.
Lord Brooke of Sutton Mandeville: My Lords, is there a good reason why the NS&I tranche, to which my noble friend referred, cannot be bought through post offices?
Lord Sassoon: My Lords, the NS&I is a commercial operation and it has to make sure that it delivers its products in the way that customers want to receive them. It distributes a significant number of products through the post office network, including premium bonds. Some products are just marketed while others are available over the counter. I understand that these days the most popular channel for NS&I's products is
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Lord Brooke of Alverthorpe: As we have a majority share in two major banks in the country, could the Minister not press them to implement the very interesting suggestions put forward by his noble colleague?
Lord Sassoon: My Lords, shareholdings in the banks in which the Government have a significant shareholding are managed on an arm's-length basis through UKFI. We want a functioning and transparent market in which consumers are able to shop around. The OFT looked at this last year and indentified some areas of the market that needed working on in terms of switching times and some aspects of transparency. The banks are working on that. Very usefully prompted by my noble friend's Question, I spoke to them today to confirm that their noses are being kept to the grindstone on this. That is important and is what we should require of them.
Mental Health: Children in Local Authority Care
Question
3.01 pm
To ask Her Majesty's Government how they are meeting the mental health needs of children in the care of local authorities.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, supporting and promoting the mental health needs and well-being of looked-after children is of the utmost importance. It is not the job of any one person or organisation. Strong and effective multi-agency working across local authority and health partners is essential. No Health without Mental Health provides a co-ordinated, cross-government focus to improving mental health outcomes for people of all ages, including those in vulnerable groups such as children in the care of local authorities.
The Earl of Listowel: My Lords, I thank the noble Earl for his reply. Will he urgently consider working with local authorities to ensure that, in the early assessment of children when they are taken into care, a clinical psychologist with appropriate training or a child psychiatrist is involved so that mental health needs are recognised and can be acted on? Furthermore, will he say what the state of specialist looked-after children's mental health services is? These are multidisciplinary teams developed in some local authorities and are particularly vulnerable to closure at this time of funding shortage.
Earl Howe: My Lords, with his experience in this area, the noble Earl hits upon some extremely important points. As he will be aware, support for the mental health needs of looked-after children is at its most effective when child and adolescent mental health
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Baroness Hollins: My Lords, how much research are the Government funding into the mental health and social outcomes for looked-after children and for adults who were looked after as children?
Earl Howe: My Lords, the noble Baroness may know that NICE and the Social Care Institute for Excellence prepared guidance recently on promoting the quality of life of looked-after children and young people. In doing so, they considered evidence including research reviews, a practice survey, a consultation with young people who have been in care, field work with practitioners and the testimony of expert witnesses. The evidence demonstrated that the health and well-being of looked-after children and young people are affected by nearly all aspects of their lives and care. The noble Baroness may like to know that a detailed list of that evidence is contained in appendix C to the guidance.
The Lord Bishop of Blackburn: My Lords, some local authorities are experiencing a very large number of looked-after children moving from other local authorities. I believe that in Medway there has been an increase of some 21 per cent. What action are Her Majesty's Government taking to ensure that local authorities that accept children from other local authorities are able to provide the specialist care that this vulnerable group needs in the field of mental health?
Earl Howe: The right reverend Prelate is quite right that the numbers of children going into care have been rising and some local authorities have been under particular pressure. But local authorities generally should be in no doubt that they have legal obligations in this area that they cannot obviate. The Department for Education has produced revised regulations and statutory guidance on care planning for looked-after children and care leavers, which came into force on 1 April. I have already mentioned the NICE and Social Care Institute for Excellence guidance, which should be followed alongside those regulations.
All local authorities in England must provide information on the emotional and behavioural health of children in their care and there are established screening tools to enable them to do that effectively. A recent study published by the Local Government Association found that more than 60 per cent of councils are seeking to protect children's social care from any cuts.
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Baroness Hussein-Ece: Does my noble friend share my concerns that significant numbers of black and minority-ethnic children in the care system suffer from mental health problems, but do not receive the appropriate intervention and support until it is far too late and they have already become involved in the criminal justice system? Will my noble friend tell me what is being done to ensure early intervention, treatment and support for these young people and children?
Earl Howe: My noble friend is absolutely right. She will know that minority-ethnic groups appear to be overrepresented in the looked-after population. Around 3 per cent of the child population of Great Britain is from black, black British or mixed groups, but 8 per cent of looked-after children are black and 7 per cent are from mixed groups. She is right that there is a problem. She is also right that early intervention is key. There is a strong emphasis on public mental health in the mental health strategy. The good foundations are down to early intervention, as I mentioned, and we are clear that this is a priority for the Government.
Baroness Armstrong of Hill Top: The Minister will be aware from recent research that an integrated budget actually makes sure that looked-after children and other vulnerable groups are more effectively responded to. Is he confident that the current confusion in the health service about the future and what the priorities should be is not preventing good work being developed in this area, because practitioners do not know what they should be doing?
Earl Howe: My Lords, I see the Government's proposals for local health and well-being boards as absolutely key to the effective integration of services and working across boundaries. The noble Baroness will know that the NICE and SCIE guidance that I mentioned is all about how better agencies and services should work together to produce the best results. We have a big opportunity in the Government's reform proposals to do the very thing that she is seeking.
Arrangement of Business
Announcement
3.09 pm
Baroness Anelay of St Johns: My Lords, my noble and learned friend Lord Wallace of Tankerness will repeat as a Statement a UQ allowed in another place earlier granting an enforcement of privacy injunctions in the light of the Master of the Rolls's report. There is agreement that the Statement will be taken at a time close to 6 pm this afternoon, with an adjournment of an hour to enable that to take place during the Committee stage of the European Union Bill.
Draft Defamation Bill
Motion to Agree
3.09 pm
That, notwithstanding the Resolution of this House of 23 March, it be an instruction to the Joint Committee on the Draft Defamation Bill that it should report on the draft Bill by 31 October 2011.
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The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Lord Prescott: My Lords, the Leader of the House asks for an increase in the time available for examination of the Defamation Bill, which is addressing responsible investigative journalism and the internet. Will he also give attention to the conspiracy of the press and Twitterers in relation to acts of libel and other criminal acts which are part of this press campaign on injunctions, and in contempt of Parliament and our judges? Is it not time that the Government, the Prime Minister and the Attorney-General stood up for the judges and the administration of justice in this country as well as for the Human Rights Act, as embodied in Section 8 and as Parliament so decided?
Lord Strathclyde: My Lords, it is of course entirely up to the committee to decide what it discusses. However, given the events of the past few weeks and days, I am sure that it will wish to examine in some detail some of the issues that the noble Lord raises. This extension comes at the request of the committee, and I believe that it will give it the opportunity to complete its work before the end of October.
Motion agreed, and a message was sent to the Commons.
Draft Detention of Terrorist Suspects (Temporary Extension) Bills
Motion to Agree
3.11 pm
That, notwithstanding the Resolution of this House of 8 March, it be an instruction to the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills that it should report on the draft Bills by 23 June 2011.
Motion agreed, and a message was sent to the Commons.
Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011
Motion to Approve
3.11 pm
Moved By Lord Taylor of Holbeach
Relevant documents: 19th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 May.
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Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011
Motion to Approve
3.11 pm
Relevant documents: 21st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 May.
European Union Bill
Main Bill Page
Copy of the Bill
Explanatory Notes
Amendments
Committee (7th Day)
3.12 pm
Clause 7 : Decisions requiring approval by Act
Amendment 48 had been withdrawn from the Marshalled List.
Debate on whether Clause 7 should stand part of the Bill.
Lord Kerr of Kinlochard: My Lords, I rise to speak to the question of whether Clause 7 should stand part principally to draw attention to a common feature of this clause and succeeding clauses, which was also a feature of Clauses 2 and 3 and to which the noble Lord, Lord Hannay, has drawn attention on a number of occasions. The question concerns the acceptability of the language in Clause 7(3):
"A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies".
This is the chicken-and-egg problem, as explained by the noble Lord, Lord Hannay. It would be normal before a decision is reached in Brussels that there should be preliminary discussion, the preparation of a text and textual negotiation, and that various rounds should be gone through before there is a decision. I am in no way disagreeing with what Clause 7(3) says about the Minister being banned from voting in favour of the decision. My worry-like the worry of the noble Lord, Lord Hannay, about previous clauses-is simply about the language "or otherwise support".
One can envisage a situation in which the United Kingdom representative might be keen to say, "My Government would live with this", or "My Government would like this", but it must be understood that under UK law, under this Bill, it would require an Act of Parliament and a referendum-or, in this case, will require an Act of Parliament. That could be construed as supporting the measure, though explaining that there were steps that had to be gone through before the UK could vote for it. I am nervous about our being unable to say anything in respect of decisions that we favour. That seems to me the effect of this
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3.15 pm
Before we come back to this issue on Report, I hope that the Government will think seriously about the point that the noble Lord, Lord Hannay, has made more than once, and to which has yet to receive an adequate answer from the government Front Bench. We were assured at one stage that it would be thought about; I hope that it really will. One can envisage various forms of language-for example, Clause 7 is full of the word "permit". It occurs all over Clause 7(4). I wonder whether it would be a disaster to the Government, while it would certainly solve my problem, if Clause 7(3) said:
"A Minister of the Crown may not vote in favour, or permit a decision".
That would prevent his taking part in or allowing the final decision; it would not prevent his taking part in the negotiation of the terms of that decision, or a prior discussion of principle about the possible decision.
I put this forward as a minor technical amendment which I think the Government should think very seriously about. There are a number of other ways of taking the trick, but the argument presented by the noble Lord, Lord Hannay, deserves a proper response.
I have two points that I wish to record as suggestions appertaining to Clause 7. The first is about decisions under Article 333(1). I am talking about Clause 7(4)(e), and I am also going to talk about Clause 7(4)(f) and Article 333(2). These are about qualified majority voting and, in particular, enhanced co-operation activities in which the UK is taking part. We are not allowed, other than if there has been a specific Act of Parliament, to agree that for a particular enhanced co-operation or deployment of election monitors qualified majority decisions can be taken on the detail of the deployment.
Here I take my text from what was said in earlier days of this Committee about flexibility. I do not think that it is wise to tie the Government's hands. These provisions are about specific deployments. It is perhaps an unlikely situation that someone who is in disagreement with the majority would agree that decisions should be taken by a qualified majority, but it has happened quite regularly in the European Union's history. It has been a standard feature of German policy that rather than take on the Bundesrat on a particular issue they prefer to be voted down by a qualified majority. They do not want to stop something happening, but nor do they want to vote in favour of it, so they are happy under qualified majority to vote against and be voted down. I think that I raised this point last Monday in relation to a previous clause. The Government need to think about it.
This is not about changing the normal rules for deciding issues that arise in relation to enhanced co-operation activity. This is about specific enhanced co-operations in which, as Clause 7(4)(e) and (f) say, the UK could be taking part. The decision on whether to adopt the qualified majority rules for implementing it would be taken by unanimity, so the Government
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I draw the Government's attention to Clause 7(3)(c) regarding a paradoxical provision in the treaty that I personally find hard to understand. I am criticising not the Bill but the treaty. This bit of our Bill says that we would need an Act of Parliament before there was,
- "a decision under the provision of Article 64(3) ... that permits the adoption of measures which constitute a step backwards in European Union law as regards the liberalisation of the movement of capital to or from third countries".
I find it hard to tell what that is about. The language of Article 64(3) is not very revealing. I had hoped to be able to attack the Government on using such loose language as,
but unfortunately I find that they are quoting precisely from the treaty. Article 64(2) says that for capital movement-that is,
- "the movement of capital to or from third countries involving direct investment ... establishment, the provision of financial services or the admission of securities to capital markets"-
there shall be qualified majority. That is not the bit of the article that we are talking about at Clause 7(3)(c) of the Bill. The clause talks about Section 3 of the article, which says that notwithstanding the bit that lays down that there shall be qualified majority,
- "the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries".
So we have some sort of emergency measure that enables them, if they are unanimous, acting only in consultation with the European Parliament rather than by the slower procedure laid down in the previous paragraph, to take a decision-perhaps sanctions, perhaps when there is some systemic threat to the system, some sort of crisis in the markets-rather than with the European Parliament being co-equal and qualified majority by the standard procedure.
If I am right-I may have misunderstood the article; I find it hard to understand-it is a bit odd that this Parliament should be imposing a requirement for a very heavy procedure, an Act of Parliament, for going back to unanimity. In a crisis where everyone agrees that something ought to be done and you have to move fast, you can only consult the Parliament; you do not have time for a full dress Session with the Parliament.
My question to the Government is: are they quite sure that Clause 7(4)(c) should find a place in the Bill? Again, I admit that I may not fully have understood its import but it seems paradoxical. The Minister has spoken to us at length about transfer of powers. I understand his reluctance to see moves to qualified majority voting. However, we are talking here about a move to unanimity by exception-clearly in an emergency.
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Baroness Williams of Crosby: My Lords, I follow the noble Lord, Lord Kerr, by asking similar questions. The phrase "or otherwise support" appears in clause after clause of this section of the Bill. If my fellow Members of this Committee look at Clauses 7, 8, 9 and 10, they will see that the phrase "or otherwise support" appears again and again. It is important that we are all completely clear about what it means. The noble Lord, Lord Kerr, is a distinguished civil servant. He has raised some of the issues that flow from this in the case of negotiation in Brussels, at the Council or in another European Union institution. I speak as a former Minister of the Crown. I, too, have concerns that deserve a little consideration by the Committee and my noble friends who will respond to this debate. I will be brief.
In Clause 7(3) we have the phrase,
That is to say, before a draft decision is approved by Act of Parliament, the Minister of the Crown is not free to vote in favour-that is absolutely fair and perfectly clear-or otherwise to support it. That really puzzles me. He or she is unable to support in discussions in the Council a view that may be in the interests of this country, and that he or she genuinely believes to be in the interests of this country, because he or she is expressing that support before a draft decision has been approved by Parliament. A Minister of the Crown-this is even odder-is unable to express support in the whole run-up to that draft decision being taken. It is not even clear whether he or she can speak in Parliament's discussions on the draft decision. Certainly, the wording does not suggest that. You could have the very odd situation of a Minister whose Government think that what he is trying to do is right, and who himself believes that what he is trying to do is in the national interest, not being able to speak out and say so.
I ask noble Lords to consider for a moment or two what will be the effect of 24/7 press and media coverage. Heaven knows, we in this House have heard enough about it in the past few days. The Minister of the Crown cannot express to the media support for what will now be put to Parliament in a draft decision on behalf of his own Government. The media will undoubtedly line up to ask him where he stands, where he is going and what grounds he has for supporting the decision. He can, I presume, say only, "I am not free to say anything". That is in some ways a ludicrous position. Surely, at the very least we should remove the words "or otherwise support" and let the whole case rest on voting in favour, where the position is clear, strong and constitutional.
My second point about the role of the media is that the very draft decision that Parliament is being asked to make-the decision of approval-will turn to a great extent on how the issue is discussed in advance of Parliament making that decision. However, under
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Lord Hannay of Chiswick: My Lords, the noble Lord, Lord Kerr, and the noble Baroness, Lady Williams, have clearly explained the problems associated with the term "or otherwise support". I wish to give an instance of where a problem may arise. The Council in Brussels may be discussing a measure which requires unanimity-our agreement-in terms of some outcomes that would be unacceptable to us, and others that would be acceptable to us once Parliament had endorsed them. How is the Minister to express that preference? There is a real risk that "or otherwise support" could be interpreted in a way which prevents the Minister expressing that preference. That, surely, would be completely counterproductive because in such circumstances we want to be able to say-do we not?-that one or more courses of action would be unacceptable to us and we would not agree to them there and then, but that another course of action could be acceptable to us once we had the authority of Parliament to make a legal decision possible. Taking all these points together, I hope that the Ministers will break their duck and agree to a change. After all, we have been sitting here for I do not know how many hours and so far they have not managed it. I would like to encourage them to try a little harder.
Baroness Falkner of Margravine: My Lords, I would like to speak briefly to a point made by the noble Lord, Lord Kerr of Kinlochard, specifically on Clause 7(3). He mentioned the coalition agreement. I think that on day five in Committee we discussed the coalition agreement and what it said about passerelles. Does he agree that the coalition agreement is clear on this particular use of passerelles, as it says:
"We will amend the 1972 European Communities Act so that ... the use of any passerelle would require primary legislation"?
As regards his other more general points, the report of the Constitution Committee, which discusses Clause 7, concludes at paragraph 41:
"We agree with the re-balancing of domestic constitutional arrangements in favour of Parliament".
Both those statements point in a different direction from that proposed by the noble Lord, Lord Kerr.
Baroness Williams of Crosby: I hope that my noble friend will forgive me for breaking into her remarks but I find it hard to understand why that encompasses
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Baroness Falkner of Margravine: I was getting to that. Whoever said that EU legislation was dull and boring should see the enthusiasm of Members of this House to make sure that we examine every sentence. I was going to refer to the comments of the noble Baroness, Lady Williams, on "or otherwise support", and I shall do so now. Clause 7(3) states:
"A Minister of the Crown may not vote in favour of or otherwise support".
However, that has to be read in the context of the following words:
- "a decision to which this subsection applies unless the draft decision is approved by Act of Parliament".
My interpretation of the words,
is a slightly more legalistic one. Will the Minister clarify that point? I see "or otherwise support" as meaning to give assent to "a decision"-meaning a law. In other words, that is a decision as seen in the category of regulations, directives and decisions-in this case, a decision taking immediate effect. That is why supporting -in other words, giving assent to-the making of a law would not be possible, but the Minister would have to come back with a draft decision, and subsequently go back and support it. This might be a rather legalistic view of the issue, but I should be grateful if the Minister can confirm whether that is right. If it is, the words are entirely sensible.
Lord Richard: My Lords, I have looked at this section and tried to construe and understand it, which was difficult. If I may say so, we are making rather heavy weather of the phrase "or otherwise support". There is only one issue that the House ought to consider-is the legislation clear as presently drafted? If it is, then of course a lot of this argument is negated. If it is not clear as drafted, someone-almost certainly the Government-ought to put it right. I am doing my best with this phrase,
but I am finding it difficult to understand what it means. I do not know what "otherwise support" means. Does "otherwise" refer back to the original approval, or to something less than the approval that you are minded to support? This is an extremely difficult concept to grasp. In short, is it clear? The answer to that is no. Should it be amended? The answer to that is yes. Who should do the amending? It should, on the whole, be the parliamentary draftsman. If ever there was a case in which the Government should say, "Right; we agree there is something here that we can look at again", this is one.
Lord Triesman: I have the same difficulties that have been expressed by a number of noble Lords in this debate. Broadly speaking, as my noble friend
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This clause, at least in some of its wording, is not just a lock but a double lock. There are two kinds of locks in it. The first is that, apart from the matters covered in the clause, there will be a referendum lock, and there is a double lock on the political process in which a Minister might take any reasonable part in any reasonable discussion of any reasonable proposition in order to make sure that their parliamentary colleagues-let alone the public-know what the issues are and how they stand on them.
There is no difficulty with the notion of the first part, where the requirement is,
That is the point on which, I suspect, there is a great deal of agreement around the House. However, I do not think that the use of "or otherwise support" is a simply a drafting or technical matter. I rely in part on the fact that those words appear in many clauses. This is not the only example. Clause after clause imposes the requirement. In general, when we have talked about these kinds of clause, the government Front Bench has indicated that in some sense-not in any sense that Ministers have described to us, and certainly not in any detail-it will be all right on the night and that it will not somehow have got in the way of anyone engaging in serious political work.
We first moved an amendment to delete that wording some time ago; I continue to believe that it is unhelpful and inappropriate. I put to the Government the following thought, which flows from ministerial experience-a good many Members of this House have real ministerial experience in this and other foreign affairs issues. Ministerial experience tells me that it is wholly impractical to try to do the political job without being able to speak on any matter of substance while you are doing it. Your processes of thought-the decisions to which you may come not instantly but as a result of discussion-must remain wholly obscure. Can you even say that you wish to deploy the knowledge you have of the issue? Can you say that you think that it is in the national interest that the issue is thought about and resolved? Can you find words in the process in which you are engaged-some of us have been engaged in these processes in much detail over the years-that are so neutral that nobody could misunderstand any word or syllable that you said as being other than completely neutral and not demonstrating any inference of support? Can you realistically anticipate that everyone will agree that what is said is so neutral that they will not claim that it is a breach of the law when they do not agree with you or the outcome? We have heard noble Lords saying in terms that they are in fundamental
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I say to the noble Baroness, Lady Falkner, that it is not a matter of how she reads Clause 7(3). Of course it is all about decisions. Draft decisions are bound to give rise to the expression of a view, or nobody would have drafted them. That is precisely why you would draft a decision. I cannot believe that we do not agree on that basic proposition.
Baroness Falkner of Margravine: Does the noble Lord then agree that "or otherwise support" could as easily imply assent-in other words, agreeing to support it?
Lord Triesman: No, my Lords, I do not agree with that. In the process of any kind of discussion, people will say something which either indicates support, or which they hope is sufficiently neutral not to indicate support but others will say that they believe that it does. The moment that anybody drafts anything, it will be seen or thought to be a clear indication of support by the very nature of going through the process of drafting it and putting it into the public domain. In real politics, that is precisely what will happen.
That is all fundamentally unhelpful, and I really hope that in their own interest-because at the moment they provide the Ministers who are taking part in discussions in Europe and elsewhere-the Government will not put themselves in so calamitous a position as to be unable to operate effectively.
Lord Dykes: Is there not a further irony that shows how throughout the Bill, from Clauses 2, 3 and 4 up to Clause 7, which basically deals with the system of passerelles, there has been a problem for the Government of trying to find the correct draftsmanship and making it incredibly complicated as a result? Is it not ironic that the then Conservative Government in the mid-1980s were mad keen on the passerelles to help the Single European Act-that was when the system first started? Subsequently, there were very few, but in the Lisbon treaty, all the member states regarded them as indispensable to allow the Union to move forward on matters which had already been decided in substance-that is Clause 7 in essence-and therefore did not require an intergovernmental conference or a unanimous decision. Why is there so much agony for the government draftsman about this unnecessary clause?
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Lord Triesman: My Lords, I can only say that I strongly agree with the point that the noble Lord, Lord Dykes, has made. It does not make any sense at all either historically or in terms of what is required now.
The point made by the noble Lord, Lord Kerr, about specific deployments and whether the wording is helpful or unhelpful also leads me to an area of
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Unanimity, which could allow a slightly different process to occur in relation to enhanced co-operation, gives room for real politics in really difficult circumstances. Therefore, I say to the government Benches that, when they reply and explain to the noble Lord, Lord Kerr, what Clause 7(4)(c) means-I, too, am quite keen to know what it means-perhaps they will tell us how they expect real politics to work. I refer not just to how they have locked out the possibility of it working but how they expect it to work and how they expect to give Ministers who are in senior, responsible and authoritative positions the ability to do the job that I think the people of the country expect of them individually and of Parliament.
Lord Empey: My Lords, before the Minister replies, perhaps I may take up the point which the noble Lord, Lord Triesman, has just made and which the noble Lord, Lord Kerr, made earlier regarding what he described as commonplace political processes in which someone would much rather be defeated on an issue than argue their case differently. In theory, that sounds perfectly reasonable. However, is that precisely because Ministers' rhetoric and Governments' rhetoric in the past has never quite matched the decisions that have emerged?
It is commonplace in politics for someone to put forward an argument, and the noble Lord, Lord Kerr, quoted the German case. To avoid a certain procedure within the German constitution, people would say, "A nod and a wink. I'll do a bit of talking here. I'll put up a good fight but at the end of the day I know perfectly well that I'm going to get beaten and therefore everything will be all right on the night". In some senses, that can be seen as normal but others may see it as chicanery. People might see that as undermining the process in Brussels but some, and I am one of them, may argue that there was a prolonged period in history when cases were put in exactly that way with exactly that outcome, which led the people drafting this legislation to take measures-they may not be the most elegant but perhaps the Minister can confirm that they exist-to protect against that precise situation. Let us face it: if
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The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, I am grateful to the noble Lord, Lord Triesman, for indicating his general support for at least subsection (1) of Clause 7. It reflects the general view that we have heard in the debate so far that primary legislation is the right instrument in a number of fields, which we have discussed at considerable length.
This clause also brings the UK more into line with the commendable practice of a number of other partners, in particular, Germany, of ensuring that national parliaments have a greater say in the developments of the European Union. It is also consistent with the principles of Laaken, to which I have referred frequently at this Dispatch Box in the past, and it is consistent with the trend in the Lisbon treaty to give more control to national parliaments across Europe.
I want to come to the specific issues that have been raised with considerable knowledge and expertise and try to offer what I hope will be a constructive response. First, I refer to the theme on which a good deal has been made in the debate on the words, "or otherwise support", raised by the noble Lord, Lord Kerr, my noble friend Lady Williams, the noble Lord, Lord Hannay, and others. The noble Lord, Lord Davies of Stamford, would immediately call me to order if I were to say that this is inherited phraseology. When I sat where the noble Lord, Lord Triesman, now sits, through the long nights that we were dealing with the Bill on the Lisbon treaty, I am trying to remember whether we had amendments on these words. I cannot remember and do not have the electronic memory to retrieve it, but the words were in the Bill which became an Act and which was drawn up by the previous Government, ratifying the then Lisbon treaty. Those with long memories will remember that people like me were not terribly enthusiastic about the treaty or how it should be treated.
However, that is the past and out of the past has come this phrase, "or otherwise support", which also raises some difficult questions, to which the noble Lord, Lord Kerr, rightly referred. Of course, we want to see in this Parliament a pattern of legislation in this enormously complex area of EU measures which minimises the obscurity and maximises the clarity. I should like to take away the points that have been put very clearly and reflect on the noble Lord's arguments. I do not know whether that constitutes, in the words of the noble Lord, Lord Hannay, "breaking ducks", merely passing balls gently to the boundary, or whatever, but the matter clearly needs some reflection because
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Lord Hannay of Chiswick: Will the noble Lord confirm that he will take away and look at all the references in the legislation to the words "or otherwise support"? Here we are discussing only one of them. I am sure that his intention is to look at all of them: if he will confirm that, I will happily agree that he has scored a boundary.
Lord Howell of Guildford: Reflections on the words as they appear here will be bound to have cross-reading repercussions. I will put it like that: that is what I am saying that I will seek to do.
I turn now to Article 333(1) of the TFEU, on enhanced co-operation. The pat answer that the Bill gives if you stare it in the face is that if a sensitive veto listed in Schedule 1 is removed, there will be primary legislation for the removal of other vetoes. That is something that the noble Lord, Lord Kerr, questioned. He cited the German example to which the noble Lord, Lord Empey, also referred. That is stretching it a bit. I cannot see that the pattern in Germany-for which there may well be good reasons, such as anxiety not to offend the Länder-arises here. I trust that it does not sound too austere to say that it would not be our way to go through that kind of action in the hope that people would understand that we really wanted to do the reverse. Nevertheless, it is a complex point and I have more to say about it.
This is to do with whether we maintain or surrender a veto in these areas. We are not talking about action in those areas: I am sure that that is perfectly obvious to noble Lords. Enhanced co-operation decisions will not be agreed overnight: they will be agreed as a matter of last resort in areas of sensitivity for some member states. A move to set up enhanced co-operation has happened only once, and is being proposed now in the context of the European patent.
Lord Kerr of Kinlochard: I had hoped that the Minister would score another boundary: he was starting splendidly with his exegesis on Germany, with which I entirely agreed. Does it not say in Clause 7(4)(e) and (f) that we are talking about a particular enhanced co-operation? We are not talking about the general rules for enhanced co-operation. I accept the first point that the Minister made about precedent. It seems to me-and, I think, to him-to be an insufficient answer, but it was a sort of answer. The point that he is making now surely does not apply, because paragraphs (e) and (f) state that the decision will relate to a specific reinforced co-operation in which we will be a participant.
Lord Howell of Guildford: That is precisely the point that I am making. I mentioned the European patent, which is a good example. A decision to move to qualified majority voting would not be something that we would agree overnight. It would be much more likely to be subject to negotiation over a lengthy
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Lord Kerr of Kinlochard: If we are talking about a specific enhanced co-operation, and the Minister accepts that we are, we have something going on out in the field-this is Article 333 on common foreign security policy. A particular kind of external activity is taking place and we do not know what it is. Those who are taking part in it have to make rapid decisions. They have to decide what we do tomorrow about situation x. The treaty says that if they unanimously so decide, they may take implementing decisions by qualified majority in relation to that specific deployment, or whatever it is. They are not changing the treaty or the general rules but are dealing with the problem that has arisen now. I do not understand the different scenario that is being presented when the Minister says that this will be prepared over time and that there will be a lot of consideration. This is about implementation. It is about people in the field. That is why I think it is rather inappropriate. Is the Minister quite sure that it is appropriate to make this a matter on which the UK would need to pass primary legislation?
Lord Howell of Guildford: I am not sure I agree with the picture of decisions having to be taken instantly. On the contrary, it seems to me to be much more likely that there would be all kinds of negotiation, not least because it would result in one or more member states being outvoted. I do not think these are. This is a very complex matter, and I have sought to try to explain as best I can how we see it working but, of course, I will write to the noble Lord in more detail about his precise concerns. I am not sure that he has really satisfied me about the cutting edge of his amendment, and I have clearly not satisfied him. We will just go on boxing and coxing while other noble Lords have to listened, so I think it is better if I write to him and try to clarify the Government's understanding of the reasoning and the reason why primary legislation would be justified against his clearly very strongly held view that it would not be justified and might hold things up.
Lord Stoddart of Swindon:Will the Minister ensure that all Members of the Committee who have taken part in our debates so far also receive the letter that he is going to send to the noble Lord, Lord Kerr?
Lord Howell of Guildford: Yes, of course I will.
I want now to turn to the next point that the noble Lord raised, which is to do with Article 64(3) of the TFEU on the reverse of liberalisation of capital movements to or from third countries. The noble Lord, Lord Kerr, indicated he did not fully understand
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- "measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries".
I do not know where this phrase "step back" originally emerged from. I do not know whether it was way back in the original draft of the European constitution. It may have been. It is used to do that which we believe should be subject to an Act of Parliament. Once again, I will obviously look at it very closely, but that is why we believe it is in the Bill in the form that it is and why we think an Act of Parliament is the right way forward.
Those are the detailed points that were raised. As I said about the phraseology that comes down to us from legislation under a previous Government, there is matter for further reflection. I fully accept that just because it was there before does not automatically mean that it is the right way forward now, although the previous Government undoubtedly thought that there were good reasons for it, otherwise they would not have put it there.
Clause 7 covers four categories of passerelles-I do not want to detain the Committee by listing them all now-that cover a wide range of different passerelle devices with which we are concerned. I like to think that Clause 7 represents a clear step, which in principle although maybe not in detail has the support of noble Lords generally, towards enhancing parliamentary control over the Government's participation in a range of important passerelle decisions at EU level. The result ought to be-indeed, the coalition Government believe it will be-an increase in Parliament's, and ultimately the British public's, sense of ownership of and engagement with the future direction of the EU.
Of course, in the highly sensitive areas listed in Schedule 1, as we know and have debated endlessly in Committee, the referendum lock would apply on top of parliamentary approval. However, an Act of Parliament is required in the other areas listed in the clause, which surely can only be a bonus for the public trust and accountability that we are all working towards in this legislation and in our work on the European Union generally.
Lord Kerr of Kinlochard: I thank the noble Lord warmly for his reply, particularly for what he said about looking again at the wording "or otherwise support". Whatever its origins, I am sure the Government can do better and that the change would solve a lot of problems not just in Brussels but here. How would the Government advance the case for the Act of Parliament that would be necessary if the law prevented them supporting it? We are slightly in Alice in Wonderland here, and plenty of adjustments to the wording would solve our problem.
The noble Baroness, Lady Falkner, asked me a question that I do not quite understand. My objection to Clause 7(3) is based purely on its wording "or otherwise support". My objection to Clause 7 as a whole applies in addition to the list in Clause 7(4), which, as the Minister understands, I think is a little too long. I have no objection to Clause 7(2), but I am
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I am grateful to the Minister for saying that he will reflect on the matter and that he will write to me about Clause 7(4)(e) and (f). I hope that he might also write to me about Clause 7(4)(c), if only to explain to someone ignorant like me exactly what the relevant passage of the treaty is all about, and why the Government would object to a move back to unanimity, which seems to me to be slightly inconsistent with their overall stance on decisions.
I do not wish for the moment to protract the discussion on whether Clause 7 should stand part.
Clause 8 : Decisions under Article 352 of TFEU
Debate on whether Clause 8 should stand part of the Bill.
Lord Kerr of Kinlochard: I have nothing to say except to point to the words "or otherwise support". I will say no more than that. Those words are there in the first line, and I hope that the next time we look they will have vanished.
Lord Bowness: My Lords, I should hate to delay the Committee, bearing in mind that this clause stand part debate has been introduced so briefly. I have not spoken in these proceedings since Second Reading when I expressed my concern about certain aspects of the Bill, which I have to say remains. As chairman of the Justice and Institutions Sub-Committee of the European Committee-although I am not speaking for the sub-committee-I am concerned as to the effect that the provisions will have on matters relating to judicial and police co-operation. I fear that our ability to act flexibly will be compromised.
I have a question for my noble friends on the Front Bench, of which I have given notice to my noble friend Lord Wallace of Saltaire. This sub-committee has just had before it a proposal for a Council regulation under Article 352, the subject of this clause. It is about a matter as mundane as the publication of the Official Journal, which noble Lords will know is the source of the authentic versions of EU legislation and other documents. At the moment, Article 297 provides that the authentic version is the published and printed version. The proposal for this regulation is that the electronic version should become the authentic version.
I am advised that if this regulation does not become law before the passing of this Bill-if that is what should happen-an Act of the United Kingdom Parliament will be required to implement it. I have read very carefully Clause 8 and the various proposals and clauses with which this clause would comply. One such is the Act of Parliament and the other is if it is a matter of urgency, which would probably be stretching
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Lord Wallace of Saltaire: My Lords, those of us who have been around the European communities are familiar with all the problems of Article 352 in its previous formations-Article 308 and even Article 235. It was the competence creep article that the forebears of the noble Lord, Lord Pearson of Rannoch, complained of many years ago. The ECJ and this article were the basic problems of the competence creep about which they so often complained, which is why Clause 8 is in the Bill.
On the specific question asked by my noble friend Lord Bowness, it is not yet clear whether the process of Article 352 will be used to switch the Official Journal from written to only electronic form. But if it were used, both in the German Bundestag and the British Parliament, there would have to be parliamentary approval. As noble Lords will know, when the clause says an Act of Parliament, it may be a clause within another Act of Parliament but it would have to be subject to parliamentary approval. This is a hard, technical case and I suspect that when it comes to it, other means will be found of approving this measure than Article 352.
Article 352 will now be used a great deal less often than its predecessors, again because the Lisbon treaty provides in so much more detail for so many other competences which the EU now has. Although during the period 2004-09, the predecessors to Article 352 were used a good many times, most of the purposes for which it was used during that period would now be covered by specific articles in the treaty. I hope that I have satisfied noble Lords with that.
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Lord Liddle: Whatever the specifics of the point raised by the noble Lord, Lord Bowness, does it not illustrate the need to include in this clause some equivalent of the significance test provided in Clause 6? I wonder whether, in the spirit of co-operation and willingness to consider things in a flexible way, the Government might take away and consider-for all of these later clauses that require an Act of Parliament rather than a referendum-some flexibility that would allow a significance test to be applied by a Minister. That would require a lower level of parliamentary approval in cases where we are dealing with technicalities rather than important issues of policy.
Lord Wallace of Saltaire: Of course we will reflect on that, but I remind noble Lords that the purpose of this Act is to improve parliamentary scrutiny and oversight of the procedures of the EU.
Lord Stoddart of Swindon: Did I understand the noble Lord correctly when he said that the proposal is that the Official Journal of the European Union should
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Lord Bowness: My Lords, I do not wish to take up the time of the Committee. The proposal as I understand it is to continue producing the printed version. It is a question of which version the courts will recognise. The courts have said to date that only the printed version is the authentic one. If this proposal goes through, they will be able to accept the electronic version. The noble Lord will not be disfranchised by not being online.
Clause 9 : Approval required in connection with Title V of Part 3 of TFEU
Debate on whether Clause 9 should stand part of the Bill.
Lord Kerr of Kinlochard: Clause 9(4), second line: "or otherwise support".
Lord Wallace of Saltaire: Noted.
Lord Pearson of Rannoch: My Lords, the question of whether this clause should stand part of the Bill gives us an opportunity to keep up to date with the Government's present intentions regarding Article 3 of Protocol 21 of the Lisbon treaty. Perhaps I may remind the Government of their great leader's statement made in late 2009:
"We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice's jurisdiction over criminal law".
That is from the Prime Minister before he became so. The other quote I give the Government in probing this matter is from Mr David Lidington, made on 20 January this year:
"The UK has until 31 May 2014 to choose whether to accept the application of the Commission's infringement powers and jurisdiction of the ECJ over this body of instruments or to opt out of them entirely, in which case they will cease to apply to the UK on 1 December 2014".
More importantly-this is what I want to check up on-Mr Lidington went on to say that:
"Parliament should have the right to give its view on a decision of such importance. The Government therefore commit to a vote in both Houses of Parliament before they make a formal decision on whether they wish to opt-out".
As I understand it, the provision in Protocol 21 allows the Government to opt out entirely from the whole justice and home affairs proceedings in Lisbon. It is true that if they accept an amendment to any of those provisions in the mean time, that provision then stands. Further, if in the mean time they opt in to anything, the 2014 deadline might not apply. I hope that your Lordships will feel it is helpful if the Government bring us up to date on how their decision is moving on opting out of the whole of the JHA provision. The last time I raised the matter was in Oral Questions, when I was told from the Front Bench by the noble
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Lord Triesman: My Lords, I shall not repeat the speech of the noble Lord, Lord Kerr, because it would have gone by so fast that what I have to say would not register.
We understand that, broadly speaking, the Government have up till now opted in rather than opted out of the arrangements made under this clause. Is there anything that they identify on the horizon which might lead them in the opposite direction to that which they have taken thus far?
Lord Wallace of Saltaire: My Lords, I have just spent the weekend in a part of France, the Dordogne, where English seemed to be spoken rather more often than French. I am conscious that the national interest in terms of co-operation in matters of civil and criminal law is a complex area given that there are now nearly 2 million British citizens living in other states of the European Union-in Spain, France, Portugal, Cyprus and elsewhere. I have to say in answer to the noble Lord, Lord Pearson of Rannoch, that we have not yet come to the point where we must take a final decision on opt-in and opt-out. I have say to the noble Lord, Lord Triesman, that Her Majesty's Government have opted in to the majority of measures which have come up since the last election, but perhaps I may quote holy writ, otherwise known as the coalition agreement, which states:
"We will approach forthcoming legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country's security, protecting Britain's civil liberties and preserving the integrity of our criminal justice system".
Clause 9 deals in particular with the use of three passerelles specific to the area of justice and home affairs. These are in addition to the Government's recent commitments to enhance current parliamentary scrutiny arrangements on the use of JHA Title V opt-in and Schengen opt-out decisions following the Written Ministerial Statement of my noble friend Lord Howell and that of the Minister for Europe on 20 January this year. As your Lordships' House will be aware, the details are subject to continuing discussions between Parliament and the Government, which is part of our commitment to enhancing parliamentary control over three key EU decisions.
I remind your Lordships that the passerelles are: Article 81(3) of the TFEU, which permits measures concerning family law with cross-border implications to be subject to the ordinary legislative procedure and therefore qualified majority voting; Article 82(2)(d) of the TFEU, which enables the Council to add to the list of criminal law procedures that can be subject to subsequent EU legislation under the ordinary legislative procedure; and Article 83(1) of the TFEU, which allows for additions to the list of criminal offences and sanctions in the areas of serious cross-border crime on which the EU can set minimum standards. These are considered to be sufficiently serious and significant moves for this clause to stand part.
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The parliamentary approval process for the three passerelles comprises two stages rather than one. This reflects the operation of our opt-in protocol on the area of freedom, security and justice annexed to the treaties and, more specifically, the arrangements governing our opt-in. It requires two decisions to be taken: first, the initial opt-in to negotiations and, secondly, the adoption of the final negotiated measure. Clause 9 affords Parliament control over both these decisions by requiring a positive vote in both Houses to approve the Government's proposal to opt in to the negotiation, and then parliamentary approval through primary legislation once the UK has opted into the negotiation and that negotiation is complete.
Having said that, the clause helps to fulfil pledges made in the The Coalition: Our Programme for Government, in that the use of any passerelle clause will be subject to approval through an Act of Parliament and represents an enhanced level of control afforded to Parliament. Having reassured the Committee on that, I hope that it will accept that this clause stand part of the Bill.
Lord Pearson of Rannoch: My Lords, will the Minister clarify something? I think he said that the Government are opting into some of these things as we go along. Will those opt-ins eventually be subject to parliamentary approval, or maybe when we come to the end of May 2014 there will not be much left to opt into because it has all been done? In that case, what would be the force of a vote in both Houses of Parliament?
Lord Wallace of Saltaire: My Lords, I am sure that the noble Lord reads all the reports that come from the parliamentary scrutiny committees of both Houses, which I assure him follow these questions very closely and which are reported to both Houses.
Clause 10 : Parliamentary control of certain decisions not requiring approval by Act
Debate on whether Clause 10 should stand part of the Bill.
Lord Kerr of Kinlochard: This is getting hackneyed, but the magic words are there in the first line of the clause and in subsection (2). I have one small point of substance to make in addition in relation to Clause 10, where we have got down to reasonably light procedures-parliamentary approval by a Motion in both Houses. Therefore, my concerns are much reduced compared with my concerns about the appropriateness of the heavy provisions in some of the previous clauses. Indeed, my concerns about Clause 7 and the scope of Clause 7(4) would be more than met if the Government would consider moving some of the less significant items in Clause 7 to the procedures that we are now looking at in Clause 10. A Motion of both Houses rather than an Act of Parliament is much more likely
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The point of substance that I want to raise comes under Clause 10(1)(c), where a procedure is laid down for the approval of decisions under Article 252 of the TFEU permitting an increase in the number of Advocates- General. There are eight Advocates-General assisting 27 Justices of the European Court of Justice. Ten years ago there were eight assisting 15, so clearly the ratio has worsened and should be corrected. The Advocates-General provide a useful element assisting the Court of Justice.
I was a member of the sub-committee of the splendid European Union Committee chaired by the noble Lord, Lord Roper. The sub-committee was chaired by the noble and learned Lord, Lord Bowness. A month ago, we recommended that an increase in the number of Advocates-General should be made as soon as possible, because that comparatively straightforward reform would assist the Court in increasing the speed with which cases could be dealt with while improving the quality of decision-making. We pointed out that there was provision in the treaty for an increase in the number of Advocates-General serving the Court and we recommended that the Court of Justice submit a request for an increase to the Council. I do not pretend that it is a very big deal that there would have to be a Motion in both Houses before we could agree. I take this opportunity to say that I hope the Government will agree and will be ready when the right moment comes to see the increase in the number of Advocates-General, which the Court clearly needs and which the UK legal profession believes it needs and is asking for.
4.30 pm
Lord Bowness: My Lords, I take this opportunity to support the remarks of the noble Lord, Lord Kerr of Kinlochard. I deny absolutely the title "learned": I do not think that even calls for our Standing Orders, but I thank him. Nevertheless, given the state of the Court of Justice and the need for speedy resolution of disputes in it-as indeed in any court-it is extremely important, as I said, that we should not make the procedures so cumbersome that delay follows. If your Lordships look at this list, you will see, among other things, amendments to the statutes. Many people think it not unreasonable for the rules of procedure, at least those of the courts, to be determined by the courts themselves. They should not be a matter for the Council of Ministers, still less a matter for debate in both Houses of this Parliament. Again, I appeal to my noble friends on the Front Bench to face the prospect of some flexibility in matters relating to justice and co-operation in judicial and police matters. As I said on Second Reading, we do not know where many of these things are going and, in many instances, we need to make decisions quickly rather than later.
Lord Dykes: Briefly, my Lords, I strongly support the remarks made by the noble Lord, Lord Kerr of Kinlochard-and, indeed, the noble Lord, Lord Bowness-because this would be a great opportunity for the Government to consider his specific suggestions;
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There are those other cases, too, where the UK might not be in favour of a decision that was subject to QMV yet the country and the Government would be bound by it because of the very reality of the voting in the Council of Ministers, or whichever relevant council it might be. The Government could regret that later on because it would create quite an onerous obligation for them to go back into full procedure in Parliament-although in general terms we are all in favour of that intrinsically-on matters which really should be dealt with quite easily and expeditiously. In the new spirit of co-operation which has been breaking out in this, the seventh allotted day of our Committee of the whole House, where the Government are now listening-the whole House is grateful for that-I hope that before we terminate the Committee's proceedings, today or later this week, there will be some promise to reconsider this vital area as well.
Baroness Williams of Crosby: My Lords, my point is even briefer. Can the Minister give a little explanation of the Motion being "without amendment"? For example, if there were to be a relatively small, technical amendment, would it in fact mean that parliamentary approval was withheld? Perhaps the Minister could say a little more on that point: why the stress on "without amendment"?
Lord Wallace of Saltaire: My Lords, perhaps I may start by answering the noble Baroness, Lady Williams. If I am correct-I am not an expert on parliamentary procedure-I think that on SIs we have to approve a Motion without amendment. I will take advice and write to her on that subject but I do not think it is a major issue.
Clause 10 is a proposal for light-touch parliamentary scrutiny of decisions taken in the European Union. The requirement for each House to pass a Motion is either an invitation for each House to accept that this is not significant, or so clearly in Britain's national interest that we should let it go by, or it is an invitation for the scrutiny committees to pay some attention and then bring a Motion to each House.
On the question of proposals for judges and Advocates-General, these matters have been covered by an excellent report from the House of Lords Scrutiny Committee, to which Her Majesty's Government will reply in good time. We do not see that this in any sense provides a greater obstacle to a decision one way or another; it merely underlines the desirability of Parliament being aware of what is happening and being required to say either, "Yes, this is fine", or, "We're not entirely sure and we require an explanation on each of these various administrative and other issues".
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Having I hope reassured the House on that, I hope that the House will accept that Clause 10 should stand part.
Clause 11 : Persons entitled to vote in referendum
Clause 12 : Separate questions
Amendments 50 to 52 not moved.
53: After Clause 12, insert the following new Clause-
Where a referendum has been held in pursuance of any of section 2, 3 or 6, a further referendum on the same treaty or decision, or treaties or decisions, cannot be held until a period of 5 years has expired."
Lord Willoughby de Broke: Unlike the majority of amendments that we have discussed at some length so far, this amendment is intended to be helpful to the Government, and I hope that they will take it in that spirit. It is in my name as well as that of my noble friend Lord Pearson and the noble Lord, Lord Stoddart, and it is simplicity itself. It would ensure that a future Government, who may be even more Euro-enthusiastic than this one, will not be able to reverse the effect of referendums held under Clause 6 by immediately calling another referendum to try to get a different result.
Noble Lords may say that this is completely unnecessary and that a referendum is a referendum and the result must stand, but we must bear in mind the unsavoury precedents set by the EU when referendums that give the so-called wrong answer are deemed inoperative by the Euro-elite. In 1993, Denmark voted against the Maastricht treaty, for example. It was tossed a few concessions and told to vote again and do better this time. In 2001, Ireland voted against the Nice treaty; similarly, there were more concessions and another referendum. In May 2005, France voted by a large majority against the constitutional treaty, followed three days later by an equally emphatic rejection by the Dutch electorate of that constitutional treaty. So what happened then? Let us bring on the Euro-clowns. First up is President of Luxembourg, Jean-Claude Juncker, who said after the two referendums:
"I really believe the French and Dutch did not vote no to the Constitutional Treaty. Unfortunately the electorate did not realise that the Constitutional Treaty was specifically aimed at meeting their concerns and that's why we need to have a period of explanation"-
or perhaps now a period of reprofiling.
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Next in the ring is Monsieur Giscard d'Estaing, the ex-President of France, one of the hapless fathers of the constitutional treaty, who said:
"It is not France that has said no. It is 55 per cent of the French people".
Work that one out. He went on to say:
"The rejection of the Constitution was a mistake which will have to be corrected ... It was a mistake to use the referendum process, but when you make a mistake you can correct it".
In other words, do not use the referendum process and do not ask people what they think-just tell them what is good for them.
Clown number three was the Italian Foreign Minister at the time, Giuliano Amato, whose considered opinion was that the no votes were,
In the words of one of the most respected correspondents, or columnists, "You couldn't make it up, could you?".
Lord Liddle: For the sake of accuracy about what happened, is the noble Lord not aware of the fact that in France a major part of the no vote on the constitutional treaty was because of the argument that that treaty was not sufficiently social? People like Laurent Fabius made it part of their campaign that, "It's not that we're against Europe, it's that this isn't for a sufficiently social Europe". In that sense, the argument was right; this was a vote not against Europe but against a particular view of Europe.
Lord Willoughby de Broke: My Lords, I am very familiar with that argument, which was wheeled out after the constitutional referendum by numerous pro-Europe commentators-they said that it was about the colour of Monsieur Chirac's socks or something; it was not about the constitution at all-but I know, because I was in France at the time of the referendum, that people were very engaged in the debate. So whatever the noble Lord on the Front Bench may say, there was a rejection by the French people by a 55 per cent majority of the constitutional treaty. I do not think that his arguments hold water.
Lord Stoddart of Swindon: I remind the noble Lord that every French voter received a copy of the Lisbon treaty, so they were perfectly well aware of what they were doing-unless they are stupid, which of course they are not.
Lord Willoughby de Broke: That is right. It is history now, but I believe that they were voting on the constitution and they voted against it. The noble Lord, Lord Dykes, is not in his place so perhaps it is not worth saying this, but these are not the ravings of a swivel-eyed Europhobe or the poisonous meanderings of the Murdochite press. These are simple facts-it is what people said after the votes on the constitution and on the previous treaty, as I mentioned.
On the dubious basis that a no vote was a request for more Europe, not less, after a period of reflection the constitution was wheeled out again, this time
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The reason, he admitted, was above all to avoid having referendums.
Yet again, that ungrateful bunch the Irish threw a shillelagh in the works by voting against the Lisbon treaty. What an unnecessary obstacle these referendums are to the furtherance of the great project. For their pains, the Irish were roundly vilified. A leading German politician said that a no vote was real cheek, while a British Labour MP said that the Irish had voted no because they had become entirely too arrogant. True to form, Ireland was shamelessly vilified by the Eurocracy and told to hold another referendum, which duly gave the so-called "right answer". Not that this has done the Irish any good, of course; their reward has been to be sacrificed on the altar of the solidarity of the euro, to be loaded with debt that they will probably never be able to pay back and to be told by the French that they must raise their corporation tax. So much for EU solidarity.
Noble Lords can see that the European elite have form when it comes to reversing the results of referendums that do not suit them. The amendment will reassure the people of this country at least that when they vote no in a referendum on any of the items in Section 6 against a transfer of further powers to the EU, their vote will not be nullified by an immediate demand for another referendum and to think again. The Bill has a referendum lock in it.
4.45 pm
Baroness Williams of Crosby: The noble Lord has made a very good case for the weakness of referenda. However, I ask him to consider a little further back in history. He may recall that in 1975 there was a referendum in this country, which was carried by a substantial majority, on whether we should stay in the European Economic Community, as it then was. Less than five years later the Labour Party, then in opposition, voted at its conference to leave the European Community. This is not quite as clearly somebody else's problem as the noble Lord suggests.
Lord Willoughby de Broke: I do not think I suggested that it was somebody else's problem. This deals particularly with this country and the Bill in front of us. I simply want to make sure, as far as possible, that we do not have the situation that has arisen so lamentably and so frequently in the European Union, whereby the results of referenda are immediately reversed because the EU elect do not like the result. The Bill contains the referendum lock. This amendment will add unpickability to that lock. I hope the Government will consider it in that spirit. I beg to move.
Lord Waddington: My Lords, few things have done more harm to the reputation of the European Union than the telling of countries that have voted against new treaties or treaty changes that they should carry on voting until they come up with what the other
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My noble friend Lord Spicer wrote a very perceptive article on this in Total Politics in March of this year. I hope Governments have learnt from what then happened. The Conservative Government were not happy about many aspects of Maastricht, particularly the removal from sovereign states of the power to manage their own economies. While we had opted out of the euro, there was a nagging fear that the European Court might even find that our opt-out was illegal.
Lord Liddle: If the Conservative Party had such objections to the Maastricht treaty, why did the Prime Minister of the time, John Major, on the day of the negotiation of the treaty describe it as "Game, set and match for Britain"?
Lord Waddington: I was referring to the opt-out and am describing what happened subsequently. I am not here to defend the Major Government, of which I was a member at that time, although not later when it came to ratifying the treaty. I am just describing the history of the matter.
Lord Garel-Jones: For the record, would my noble friend confirm that the phrase we have just heard was not uttered by Prime Minister Major?
Lord Waddington: I hear what my noble friend says. I have not the faintest idea whether it was uttered or not. By the time all these great events were occurring, I was reading the Royal Gazette in bed in Bermuda and not the Times or the Telegraph here in Britain. All I am telling noble Lords now is what the history of the matter is. The history that I have related so far is entirely correct. The Conservative Government were obviously not happy about many aspects of Maastricht, which was precisely why they, with considerable perspicacity, negotiated the opt-out. However, having opted out, there were still great dangers ahead. Therefore, when the Danes rejected Maastricht there was an opportunity to block the treaty and work for a fresh start in which energies would be concentrated not on trying to manage the economies of the member states but on extending the borders of the EEC and creating a fully competitive common market within those borders. But that opportunity was all thrown away. If it had not been and there had been a fresh start, the EU would not be in the mess it is in today, bailing out countries which are "broke" as a result of having been put in the straitjacket of the euro.
This amendment cannot affect how we should react if there are further defeats of proposals for treaty changes in other countries, although I hope that we
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Lord Stoddart of Swindon: My Lords, I am a signatory to this amendment and, of course, support it. The noble Lord, Lord Willoughby de Broke, has provided a good deal of the history of referendums in other countries. The most recent case of a further referendum was in the Irish Republic, where the first referendum was held on 12 June 2008. During that referendum, Mr Barroso intervened to warn that, if the Irish rejected the Lisbon treaty, there was no plan B under any circumstances, and that there would be dire consequences not only for Ireland but for the whole of the European Union. Nevertheless, the Irish voted no on a 53 per cent turnout, with 53.4 per cent voting no and 46.6 per cent voting yes. There was pandemonium all over the place, especially in the European Union. Many people thought that the Irish had spoken and that that should be the end of the matter, especially as Mr Barroso had denied that there was a plan B, but obviously there was a plan B-another referendum. That took place on 2 October 2009. As noble Lords will know, the result was reversed after a bitter campaign, during which the European Commission and the Irish Government weighed in with taxpayers' money-probably illegally, incidentally. According to Mr Jens-Peter Bonde, who at that time was a senior MEP, the Commission and the Irish Government between them spent millions of euros supporting the yes campaign. As if this huge support was not enough, large amounts were also contributed by vested interests, including €250,000 by Ryanair. In fact, 10 times as much was spent on the yes campaign as on the no campaign-little wonder, then, that the Irish people reversed their first vote by a 2:1 majority.
However, that was not the first time that the Irish people had been made to vote again. When they had the temerity to vote no to the Nice treaty, they had to vote again to provide the only answer that was acceptable to the European Union and the Irish Government-in other words, if people do not provide the right answer first time round, they will be made to vote again until they do. That is the impression that is given, and that is why in many respects the European Union and some of the nation states are held in contempt by their peoples.
However, as we have heard from the noble Lord, Lord Waddington, the Irish people were not the only ones who were made to vote again. When the Danish people voted no to the Maastricht treaty in 1992, they were forced to vote again a year later in 1993. Again, the no campaign was out-financed and clobbered by their own Government and others with vested interests in obtaining a yes vote-and this was duly achieved. However, as noble Lords may remember, when the result was declared the Danish people were so annoyed that they actually rioted in Copenhagen, the police fired 113 shots into the crowd when it was trapped, and 11 people were treated for gunshot wounds. When people feel cheated about their decisions, in some cases and under some circumstances, they are prepared to cause mayhem and riot.
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Therefore, for these and other reasons, I support the amendment and hope that the Government will accept it. Before I sit down, I ask for an assurance from the Government that in any referendum under the Bill they will not use taxpayers' money to support one side of the argument, and that they will prevent the use of taxpayers' money by any institution of the European Union to support one side of the argument. That should include the European Parliament, which has just voted for a change in funding rules that will allow cross-national EU political groups of MEPs to take part in referendum campaigns in member states. It would be quite outrageous if MEPs from any part of the EU, with taxpayers' money through their expenses, were able to indulge themselves in a specifically British referendum. Unless the Government can assure us that they will block such activities, I support the amendment.
Lord Flight: My Lords, it is very tempting to support the amendment, and the noble Lord, Lord Stoddart of Swindon, made some good points about expenses. The forced holding of second referenda has been shameful and has involved quite improper practices. However, I should like to make two points on why the amendment may not be appropriate for this country. The first is that any second referendum would require the approval of both Houses of Parliament. I trust that this House, unless it is dangerously interfered with, would act properly in that situation. Secondly, in the event of a referendum on "in or out" in which people voted to stay in but certain developments in Europe within the five-year period made the situation dramatically different, it would be unwise to be limited by a five-year rule that the UK could not reconsider the issue again in the light of future developments. Many Members of this House are sympathetic to the amendment on the improper use of forced second referenda, but such a measure would not be appropriate in this country.
Lord Empey: My Lords, many people would be sympathetic to the amendment. There was, however, a difference between the two referenda in Ireland, and the difference was that the Irish Government believe that they negotiated a stronger deal. They were going to lose their Commissioner and various other things, so they negotiated hard and obtained changes.
The way in which Brussels went about things in the Republic was brutal. People felt intimidated and threatened, and their financial security was threatened. Of course we can see why that happened and the genuine concern. Public opinion in the Republic since the imposition of what the public regard as penal conditions surrounding the bailout is shifting against the European Union. I have no doubt that, as the noble Lord, Lord Stoddart, said, there was intimidation. It was not a pretty picture. However, one thing that would worry me about the amendment is that if a proposition were before our Government and Parliament that contained certain conditions that we objected to and those conditions were subsequently, because of the referendum, negotiated out, where would we be if we found that we had what we had asked for? We would not be able to do anything about it for five years. That is my only concern. I do not dispute the
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The other lesson is that having a referendum behind you as a requirement has proved to be a strong negotiating tool. The Irish are a classic example. Because of their fundamental financial weakness, they were not able to press it home, but they got improvements. In our circumstances, what would we do if we were able to negotiate what we wanted and achieved our objectives?
5 pm
Lord Pearson of Rannoch: My Lords, I was not going to speak for very long on the amendment, which is in my name as well, until the intervention of the noble and Europhile Lord, Lord Garel-Jones, who informed us that John Major did not say, after the Maastricht negotiations, that he had achieved game, set and match. That is generally accepted and I must ask the noble Lord: if Mr Major did not say that, who did, or is the whole thing just a figment of Eurosceptic imagination?
Lord Garel-Jones: I have some advantage over both the noble Lord and the British press: I happened to be there at the time. First, Prime Minister Major never said any such thing. Secondly, if it was said, it was said by a high-ranking civil servant, whose name, for obvious reasons, I will withhold.
Lord Pearson of Rannoch: That would be just typical of the Eurocrats.
However, it is true that the Conservatives forced through the Maastricht treaty, so presumably they were quite pleased with it. Some of us resisted it in this House. In his defence, one has to say that Mr Major had discovered the error of his ways by 12 November 1996, when he wrote a letter to M Jacques Santer, who was then, whatever it was called at the time, the boss of the European Commission. The letter shows how Mr Major, and possibly the Conservative Administration at the time, realised how they had been deceived by the cunning and duplicitous octopus in Brussels. His letter is very brief, and I have read it to your Lordships before-in 1998, I think, so it bears repetition now. It reads:
My intention in agreeing to the Protocol on Social Policy at Maastricht was to ensure that social legislation which placed unnecessary burdens on businesses and damaged competitiveness could not be imposed on the United Kingdom. The other Heads of State and Government also agreed that arrangement, without which there would have been no agreement at all at Maastricht.
However, in its judgement today, the European Court of Justice has ruled that the scope of Article 118a"-
that is, health and safety at work, and things like that-
- "is much broader than the United Kingdom envisaged when the article was originally agreed, as part of the Single European Act. This appears to mean that legislation which the United Kingdom had expected would be dealt with under the Protocol can in fact be adopted under Article 118a".
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The following is a good paragraph:
"This is contrary to the clear and express wishes of the United Kingdom Government, and goes directly counter to the spirit of what we agreed at Maastricht. It is unacceptable and must be remedied".
He then says that he will table amendments and so on to it. His penultimate paragraph says:
"I attach the utmost importance to these amendments and I shall insist that they form part of the outcome of the Intergovernmental Conference. I do not see how new agreements can be reached if earlier agreements are being undermined".
That was in the run-up to the Amsterdam treaty. The Conservatives then lost the election and the new Labour Government signed up to the Social Chapter anyway, so we have the working week and so on.
That is the full picture behind the noble Lord's intervention. At least we can see that, by the time he left office, Mr Major had understood the nature of the beast with which he was dealing, although of course when poor Mr Blair came along, he went back to the whole business of being at the heart of Europe-being nice to them and so on. We get everything that we want and that is why we are where we are today.
Finally, the noble Lord, Lord Liddle, said that the reason the French voted against the Giscard constitution was that they wanted a more social Europe. My simple question to him is: why did the Dutch then vote in exactly the same way two days later? I support the amendment.
Lord Triesman: My Lords, obviously the past is made up of facts but, as today has illustrated richly, the retelling of history is made up of the view taken by those who look at the facts. Having listened to what has been said in this debate, I have to say that some of the accounts of the facts do very scant justice either to what took place or, indeed, to some other countries. To be told that people were made to vote again and that the referenda were enforced appears to give very little credit whatever to the determination of the peoples of Denmark, Ireland, France or Holland, and I do not see why we should spend our time here insulting them. They were perfectly capable of settling the first propositions put in front of them and they were perfectly capable of assessing the changes. If it is said that, for example, consent was finally achieved in Ireland because of the financial problems that the country was facing-bailed out, it was said, by the straitjacket of the euro-I find that an astonishing bit of history. The banking and liquidity collapse of the country appears to have had no role; the sub-prime derivatives in which the banks of that country were so heavily involved that it had to set up a "bad bank" to deal with the mass of debt that had been accumulated appears to have had no role; and the massive speculative forces in property, finally producing a major financial threat which arose from those kinds of difficulties, also apparently had no role.
Lord Hamilton of Epsom: Will the noble Lord give way? If he is quite comfortable about people voting in a referendum, saying no and then being asked again, what would he have said if the Irish had voted no twice? Would he have said that it was quite legitimate for them to be asked to vote a third time?
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Lord Triesman: My Lords, however many times the Irish people were asked to vote would have been a matter for the Government of Ireland. In the same sense, I hope that we would have sufficient sovereign pride to conclude such an issue ourselves, although I think it highly improbable. Perhaps I may add that the circumstances in which people might be asked to vote a third, fourth or subsequent time seem not at all likely.
Lord Flight: A problem for Ireland when it adopted the euro was that the inflation rate there was much higher than in Germany, which resulted in virtually negative interest rates in Ireland. That resulted in people borrowing as much as they could and putting the money into assets such as property. That produced the property bubble, and the bursting of the property bubble was the main cause of the banking system's problems.
Lord Triesman: My Lords, anybody who looks at the difficulties that have been experienced in many mature economies, whether or not they are in the euro, will recognise that the financial problems created by property speculation and, in particular, by funding sub-prime derivatives in the property market have nothing whatever to do with the euro in most cases. It was a wave of mad speculation-it can only be described as madness-because it was possible to do it under the interest-rate conditions that obtained generally around the world. They are not so varied between countries in either hemisphere.
Of course it is true that in the referenda conducted in the countries that we are discussing, they concluded, as they were perfectly entitled to do, that what was being put in front of them was not good enough. We know, however, in part from the noble Lord, Lord Empey, in terms of the role of the Commissioner in Ireland, and the issues that came up in Denmark on whether the people would be compelled into defence propositions that they did not like, or whether people in Ireland would be compelled to change the abortion law or consider NATO membership, that all of those things produced circumstances in which there was a no vote. Those Governments negotiated again and got those terms changed. Protocols were introduced in almost every incidence to get those terms changed. They then went back and asked the people of their countries whether the changes in terms were sufficient to merit a change in the view that they had taken.
That seems to me to be completely legitimate. I cannot for the life of me understand why someone would say that it is a legitimate outcome if you vote no by, say, 52.5 per cent-that is plainly a no vote; I understand that completely-but when it is put again it is completely illegitimate if something like 65 per cent of the people in that vote say yes. What is the point of a sovereign decision by people when they are asked to take a vote if you do not accept the outcome in either direction-like it or dislike it; it is irrelevant? It is their decision and they have taken it. The idea that any country, least of all this one, should feel that it is bound to be strong-armed into taking a different decision if the first decision does not accord with perhaps the general sentiment in Europe is completely
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Lord Wallace of Saltaire: My Lords, this debate has ranged a little wider than the amendment. We have had accusations of the European elite forcing the holding of second referendums. I wondered whether we were going to be told by the noble Lord, Lord Willoughby de Broke, that the European gendarmerie would be used to force second referendums. I recall him previously raising the question of what the European gendarmerie was for. We talked about EU bullying as if somehow Brussels is different and imposes itself on national governments. I simply remind noble Lords that the European Union is an association of states and that Brussels operates on behalf of those member states. It is the member states which agree on proposals of the sort likely to be put to referendums.
On Ireland, I would simply say that the situation may or may not have been to some extent associated with Irish membership of the euro. The situation in Iceland was an even greater financial bubble and can in no sense be blamed on Iceland's membership of the euro since Iceland is neither a member of the euro nor of the European Union. We need to get away from that. On the question of financing the Irish referendums, I am not aware of how the second referendum was financed beyond the fact that I have three very good friends in Dublin who took out substantial loans on their houses to guarantee the basic funding for a second referendum. When my wife and I had dinner with them some months after the referendum, they were still very heavily in debt. That suggests to me that there were no sugar daddies, let alone external forces, providing funding.
5.15 pm
Clearly the amendment has been tabled with memories in mind of the Danish and Irish experiences. Noble Lords have been reminded that in both cases there were renegotiations, and that the packages that were put back to the electorate represented concessions and opt-outs offered by other member Governments to those Governments who returned to ask their electorates to accept a modified package.
It is not appropriate to accept this requirement in statute for two broad reasons. Should the British electorate vote no in a referendum, the Government clearly will have to reflect on what action to take. If they were to decide to hold a referendum on the same issue-I am sure that there would be arguments over whether it was the same, a similar or a modified issue-they would first have to secure Parliament's agreement to the new piece of primary legislation required to establish and hold the referendum. That would allow ample opportunity for debate on whether the principle and the timing were right to hold a further referendum on the same subject. I remind noble Lords that Governments will not call referendums in Britain unless they wish to argue that it is in Britain's national interest to accept the case that they are making.
If the Government were defeated in a referendum, it would be tantamount to a defeat of the Government: they would have been defeated on their view of the British national interest. Therefore, the Government
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However, there is another point. Given our lack of perfect foresight of future circumstances, there might be a situation where the Government and Parliament might judge that a treaty change previously rejected by the British people was even more necessary and desirable, perhaps because of intervening external or internal events. Flexibility is something that many noble Lords have argued for in Committee: we cannot entirely foretell the future. If both Government and Parliament were then to decide that circumstances had changed enough to warrant asking the people again, Parliament should be able to do this without having to wait for the end of the five-year moratorium. I am happy to repeat that this Government would think it highly unusual and politically costly to suggest rerunning a referendum on the same subject without very good reason. However, for the reasons that I have given, I am not convinced that a fixed-term cooling-off period is the answer. Having people judge such a move at the ballot box surely would be a more effective deterrent. Therefore, I urge noble Lords to withdraw the amendment.
Lord Pearson of Rannoch: My Lords, I am not sure that I heard the noble Lord answer a question put by the noble Lord, Lord Stoddart of Swindon. It may be that the noble Lord would prefer to answer it in a debate on Clause 13 stand part. I am happy to do that, provided that we have a brief debate on it. The question was: would the European Commission, Parliament or whatever be allowed to contribute to any referendum in this country, presumably on the side of the continuing advance of the Brussels juggernaut?
Lord Wallace of Saltaire: I am happy to answer that now: perhaps it will enable us to avoid having a debate on Clause 13, which is largely technical. The Political Parties, Elections and Referendums Act makes it entirely clear that there are tight controls on the funding of referendums by political parties and other actors, including those outside the European Union. My understanding of the clause is that the European Commission would not be allowed to spend more than £10,000 in the course of a referendum. I hope that that provides the answer that the noble Lord needs. If any further details are required, I will of course write to him. However, I am sure that he is an expert on PPERA and all the details that the Electoral Commission now oversees.
Lord Stoddart of Swindon: I asked about the new rules which would allow European political parties to campaign in any country on referendums. Does the existing legislation cover expenditure by MEPs in any country, including our own, in case of a referendum? We need to know that.
Lord Wallace of Saltaire: I seem to remember that in both the Danish and the Irish referendums there was substantial assistance from Eurosceptic groups in
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Lord Stoddart of Swindon: I am most obliged to the Minister for giving way again, but the point about MEPs is that they will be able to use their expenses to campaign, and that is taxpayers' money. If people give voluntarily, that is a matter for them, within the election rules, but if MEPs are spending taxpayers' money, that is another business. I appreciate that the Minister cannot reply now, but when he considers the matter further he will perhaps take that into consideration.
Lord Wallace of Saltaire: I will refer back to the Political Parties, Elections and Referendums Act.
Lord Willoughby de Broke: I am grateful to all noble Lords who have spoken, particularly to those noble Lords who supported this amendment, and even for the qualified support of the noble Lord, Lord Flight. I say to him that this is entirely to do with this Bill and is not to do with a Bill on an "in or out" referendum, when it may well be appropriate to shorten the term between referendums. However, that is a matter for another day and is certainly not part of this debate, which has ranged a little more widely than I wished. I pick up what the noble Lord, Lord Triesman, said. I certainly did not insult anybody. I was simply quoting what some of the European elite said about their own electorates. They were the people who were insulting them, not me. For the moment, I beg leave to withdraw the amendment, but I will probably bring it back on Report.
Amendment 54 had been withdrawn from the Marshalled List.
Clause 13 : Role of Electoral Commission
Amendment 55A had been withdrawn from the Marshalled List.
55B: After Clause 13, insert the following new Clause-
"Promotion of United Kingdom's membership of EU
In participating in a campaign for any referendum held in pursuance of section 2, 3 or 6, or in taking other steps required by this Act, Ministers of the Crown must have regard to the desirability of promoting the United Kingdom's membership of the EU."
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Lord Radice: I move this amendment in the belief that if this amendment, or something like it, is written into the Bill, it could be of value not only to Parliament and to Ministers but to the British people. The underlying purpose of the amendment is to lay a duty on Ministers to put the case for the United Kingdom's membership of the European Union, not just during a referendum but in general and at all times. It has been said that the coalition agreement on Europe tries to reconcile two conflicting ideas; indeed, I think it was the noble Lord, Lord Wallace, who said that. The amendment is very much in line with that part of the coalition agreement which says,
"Britain should play a leading role in an enlarged European Union",
and that the aim of the Government is to,
- "strike the right balance between constructive engagement with the EU ... and protecting our national sovereignty".
Why should a duty be placed on Ministers to argue the case for Europe? Surely they can be relied on to make that case without a legal obligation being placed on them. I can see some merit in that argument, but the fact is that, in the years since the 1975 referendum and with honourable exceptions, British Ministers of different parties have been very hesitant about speaking up for United Kingdom membership. I am sad to say that that also includes Ministers from my own party while in government. Certainly the last two Prime Ministers, Tony Blair and Gordon Brown, made the occasional fine speech about the benefits of membership. Tony Blair was particularly eloquent when speaking on the continent-for example in his Warsaw speech and in his June 2005 address to the European Parliament. However, inside the UK, his pro-membership speeches were less frequent and, I thought, less impressive.
Of course, both men were so reluctant to speak up mainly because they were extremely worried by and concerned about the possible reaction of the Eurosceptic media, especially the Murdoch press, which spent a lot of time taking Ministers apart, particularly the Prime Minister if they thought he was going too far on the European Union issue. In view of the track record, I believe Ministers need the support of Parliament to bolster them and to give them strength in the face of a hostile media.
There is a further consideration. The noble Lord, Lord Howell, has frequently drawn attention during our debates to the "disconnect"-I think that that is his word-between the British public and their political leaders over the European issue. Indeed, that is his main justification for the Bill and for the plethora of referenda that could flow from it. Certainly, according to public opinion polls, the British remain reluctant Europeans and fairly ill informed about the EU. Given the hostility of the press and the reticence of Ministers, it is hardly surprising that the British should feel that they do not have enough information about what goes on.
There are some exceptions to the ministerial silence, and I am glad that I can mention one Minister in this House. I have already praised the Europe Minister, David Lidington, a Member of Parliament in the other place, for setting out in a Commons Written Answer why he believes that United Kingdom membership is in the national interest. The reasons he gave included:
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More recently, the Commercial Secretary to the Treasury, the noble Lord, Lord Sassoon, stressed to this House-I think in answer to a question from the noble Lord behind me-that the United Kingdom gets much more out of the EU than it puts in. It is right that Ministers should say that, because sometimes if you listen to the remarks of some noble Lords in this House-members of UKIP-and indeed read the remarks in a number of newspapers, you would think the opposite. The noble Lord, Lord Sassoon, mentioned the access to EU markets, cheaper prices and greater choice on our high streets, more foreign investment and a stronger voice in the world for the UK. I think that it would be very good if we heard the same from the two Ministers representing the Foreign Office here. I have said already to them that I should like to see them make more speeches about the case for British membership. It would be good if the Prime Minister, the Chancellor and the Foreign Secretary also could add their voices to explain not only the economic benefits of membership but also the strategic advantages that the UK derives from working so closely with our nearest neighbours. As we have discovered in this country time and again in our history, what happens on the continent has a major impact on us. So-called splendid isolation, as advocated by noble Lords behind me, is simply not an option in the modern world, if it ever was so.
5.30 pm
I make no apologies for moving my amendment in the way that I have. As I have been arguing, I believe that to counteract the sustained hostility of the press, Ministers need the support of parliamentary statute to help them to put the case for our membership of the European Union, of which we have been a member for nearly 40 years-although one might not think so when listening to some noble Lords. Above all, we need a less negative attitude towards the EU. As the noble and learned Lord, Lord Howe, who is in the Chamber, said at Second Reading, the key idea of this Bill is to place an unprecedented system of referendum locks on the statute book. That could, as he warned us, act as a long-term break on UK participation in the European Union.
As many noble Lords have said, this EU Bill is based on the wrong premise about our membership. Instead of erecting a kind of Maginot Line against all these marauding European enemies who apparently are always trying to do us down, we should recognise that the sharing of responsibilities with our partners has been good for Britain and good for Europe. By stimulating Ministers to set out the case for and the benefits of membership, this amendment can not only
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Lord Blackwell: The noble Lord will not be surprised that I cannot agree with his amendment. Arguments are put forward for the merits of our membership of the European Union and arguments are put forward about some of the disadvantages and costs of our membership. Where Members of this House and people in this country will disagree is in the balance of those arguments. The noble Lord cannot really be serious in asking for Ministers of the Crown to be bound to put only one side of those arguments in any future debate. Surely, if there is an obligation on Members of the Government, it should be to put a balanced view on any issue to do with the European Union to the House and to the country.
Lord Clinton-Davis: Does the noble Lord really contend that Ministers have performed their duty already? I hear the voice of negativity rather than positivity.
Lord Blackwell: I think that that just illustrates the point that different Members of this Committee will have different views on this matter. My view is that if there has been a bias in the past, it has been for Ministers, in their desire to get the agreement of the House and the country to treaty changes, to downplay some of the consequences of those treaty changes that they did not wish the country to realise until it was too late. That has been part of the reason for the successive loss of trust in the Government and the European Union-the balanced arguments have not been put forward.
I have no argument with the fact that we should require Ministers to set out the arguments on both sides but to try to bind Ministers always to put out an unfailingly positive view of the European Union would be no service to this House or to the country and would simply compound the mistrust that has already been created.
Lord Hannay of Chiswick: My Lords-
Lord Blackwell: Perhaps I may give way to the noble Lord, Lord Hannay.
Lord Hannay of Chiswick: It seems to me that the noble Lord is propounding a pretty odd doctrine. Britain has been a member of the United Nations since 1945. I do not imagine that anyone believes that the UN is without fault but I have not yet seen a ministerial speech about the UN from any party which did other than support it. Britain has been a member of NATO for a very long time. It is an organisation which also has its faults. I have never seen a British Minister make a speech about NATO which did not support it. Why can they not do it about the European Union too?
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Lord Blackwell: I may be corrected, but I am not aware that there is any statutory requirement for Ministers to make positive speeches about either of those organisations. It is up to Ministers to take their view and to make those views known. That is all I am saying about the European Union; namely, that it is up to Ministers to take a view and make that view known but that they should be allowed and, indeed, have an obligation on them, to state both sides of the case and make sure that they are not putting a too Panglossian view of the European Union in the way that this amendment would suggest.
Lord Clinton-Davis: I have rarely heard such piffle from any Member of this House as we have just heard. To suggest that Government Ministers would play fair on this issue is addled. At the moment, all the evidence points the other way. They are happier to point in the way of negativity rather than deploy the arguments in favour of the community.
Lord Stoddart of Swindon: Is this an intervention or a speech?
Lord Clinton-Davis: It is a speech. Many years ago, I shared the view of many members of the Labour Party when I expressed the opinion that our membership of the EU was wrong. My noble friend Lord Radice took a different view. He was right and I was wrong. Having been a commissioner of the EU for some time, and having been in charge of transport, the environment and the nuclear industry, I formed the view that on all those issues, the voice of Europe should be positive and heard. I never came to the conclusion that we should somehow shilly-shally on those issues.
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