15 Jun 2011 : Column 779

House of Lords

Wednesday, 15 June 2011.

3 pm

Prayers-read by the Lord Bishop of Chichester.

International Widows Day


3.06 pm

Asked by Lord Loomba

Baroness Verma: My Lords, while the Government are not planning a specific event on International Widows Day, we continue to work with our UN partners to raise awareness of the issues facing widows. We take a proactive role in promoting gender equality through engaging in International Women's Day. The Government of course recognise that widows of all ages are among the poorest and most vulnerable in societies across the world. That is why, in our country programmes, we continue to provide support to widows.

Lord Loomba: My Lords, I am disappointed with the reply. My foundation-I declare an interest as the founder member of the Loomba Foundation-commissioned international research that concluded that there are more than 245 million widows supporting nearly 500 million children who are disadvantaged and living in poverty. The issue has been identified by the United Nations, which has designated 23 June as International Widows Day. It surely should have been possible to ring-fence funds. The issue should at least have been included in the millennium development goals. Why has this not happened?

Baroness Verma: My Lords, I start by congratulating my noble friend on the vital work of the Loomba Foundation in supporting widows. I declare an interest as a trustee of one of my noble friend's charitable organisations. The UK takes a leadership role through our diplomatic and development work in supporting poor and vulnerable women and promoting their economic, social and political empowerment. We support widows through broader programmes working on women's empowerment, asset ownership and inheritance rights, and, through this, the targeting of cash-transfer programmes. The Government are targeting all women, including widows.

Baroness Greengross: Widows in post-conflict situations, particularly in many countries in Africa and the Middle East, are in a particularly vulnerable position. Some of the widows are extremely young, many are in reality punished for the death of their husbands, and their future is very bleak. Will the Minister assure us that their needs will be taken fully into consideration?

15 Jun 2011 : Column 780

Baroness Verma: The noble Baroness of course raises a number of very important issues. Through DfID, as she is aware, we are making sure that our work in each country programme has a focus on trying to ensure that women and girls get the right directions, and the means and support, to be able to engage in both civic and political involvement. For example, we are working to increase the number, influence and capacity of women in Afghan public life, through the Afghanistan Sub-national Governance Programme. In this way, we feel that they will be in charge of their own destinies while receiving support from us.

Baroness Goudie: The Minister is well aware that if we had more women at the peace table in post-conflict times, we know that widows would be taken care of much better. At present, it is men on both sides who say that they do not want women at the peace table. If there were women at the peace table, we would be able to ensure that women and widows in post-conflict areas would have schools for their children, proper medical aid for them and the chance of getting work through investment into those countries. At present, none of that is happening, except in a very few areas. It is very important that our representatives at the UN and in post-conflict areas do that.

Baroness Verma: The noble Baroness has made some absolutely valid points; in fact, she has answered her own question for me. The noble Baroness is absolutely right. That is why, through DfID, the FCO and the MoD, we try to work to ensure that there is full representation through all our programmes and that in all we are doing the presence of women is visible. We are of course aware that there are places where that is much more difficult, but we will continue to work with Governments to ensure that, through our support, they are able to do that.

Baroness Jenkin of Kennington: My Lords, what steps are the Government taking to encourage, support and increase the political participation of women in the Arab spring?

Baroness Verma: My Lords, that follows on very neatly from the question from the Benches opposite. We remain concerned that women seem not to be present in the negotiations and at the forefront of political life, whereas they were very present during the revolution and demonstrations. DfID and FCO have committed to more than £110 million over four years to support political and economic reform across the region. Our department will be looking at how gender will be represented there.

Baroness Royall of Blaisdon: My Lords, our widows are also international widows. This year, the War Widows' Association of Great Britain celebrates its 40th anniversary. I suggest to the Minister that those extraordinary women, to whom we owe so much because their partners have paid the ultimate sacrifice, might wish to mark the first United Nations International Widows Day with a clear statement from the Government that they will not seek to overturn the amendment passed in this House on the Office of the Chief Coroner, a role of great importance to war widows and their bereaved families.

15 Jun 2011 : Column 781

Baroness Verma: My Lords, I accept that the question is very important; I need to take it away and write to the noble Baroness in response.

The Earl of Listowel: My Lords, does the Minister recognise that in bringing up children an important problem for many mothers, including widows, is finding good male role models, perhaps particularly for their sons? Will she take this opportunity to pay tribute to the men who step into those roles, particularly male school teachers and perhaps male physical education teachers?

Baroness Verma: My Lords, the noble Earl is absolutely right. Issues regarding gender will never be resolved unless we take on board the important work and commitment undertaken by both men and women. I completely accept what the noble Earl says. By and large, we are trying to work closely to ensure that the engagement is not just with women and girls but with boys and men too.

Lord Chidgey: My Lords, I emphasise the point made by several other noble Lords, the importance of dealing with the needs of tens of thousands of widowed women as a result of decades of conflict in central Africa, in the Congo and elsewhere. What specifically are the Government doing in relation to the educational needs in the civic development of those women so that they can participate in the full life of their communities and protect the future of their children?

Baroness Verma: As my noble friend knows through our meetings with DfID, every programme we have in every country that we are supporting has mainstreaming of gender. I think he agrees that it will take time to see the results. We are very aware that we have an uphill struggle and that it will be hard, but we will persevere.

Northern Ireland: Bill of Rights


3.14 pm

Asked by Lord Smith of Clifton

Lord Shutt of Greetland: My Lords, as my right honourable friend the Minister of State for Northern Ireland recently made clear in the other place, we want to see this issue resolved and will be taking the views of the new Executive, political parties and others in Northern Ireland on how best to move matters forward.

Lord Smith of Clifton: My Lords, that is a smidgen of an improvement on the Answer given the last time I raised this question, and I suppose that that is progress. Can my noble friend tell me frankly whether the Government are going to continue the previous

15 Jun 2011 : Column 782

Government's policy of kicking this issue into touch, or when we might have some positive progress on implementing this last aspect of the Belfast agreement?

Lord Shutt of Greetland: My Lords, I cannot give any specific dates or times. Civil servants have already talked to people in the human rights fraternity in Northern Ireland, and the next job is to get involved with the Assembly and to get things moving. I said on the previous occasion, and I repeat now, that with the new Assembly there is an opportunity to break into this issue, which I understand is of long standing. It is important that we move forward.

Lord Kilclooney: My Lords, does the Minister recall that, when we negotiated the Belfast agreement, we had it specifically written into the agreement that there would be progress on human rights not only in Northern Ireland but in the Republic of Ireland? When will the Government make representations to Dublin to have the obligations under the Belfast agreement honoured after 13 years?

Lord Shutt of Greetland: My Lords, I cannot answer for the Government of Ireland. However, as I indicated on the previous occasion that the noble Lord, Lord Smith, raised this question, I wrote to the Government of Ireland to let them know of the concerns of the noble Lord, Lord Kilclooney. Your Lordships will note that, regardless of there being, in the noble Lord's words, no progress, an Irish Human Rights Commission has been set up and is very busy in its work.

Lord Dubs: My Lords, does the Minister agree that this issue of a Bill of Rights for Northern Ireland has been going on for many, many years? Can he confirm that the Government will not allow any one political party in the Assembly to veto progress towards the commitment that we entered into?

Lord Shutt of Greetland: My Lords, I cannot give guarantees but I do not believe that there ought to be vetoes. The Belfast agreement is clear. Of course, one highly significant party in Northern Ireland was not party to the Belfast agreement. Nevertheless, it is important that this matter, which is almost the final piece of the agreement, has not really been tackled. It is a tricky issue. The noble Lord will recall that his own Government had a bit of bother with it; 12 years on, we have not got too far with it. However, because we have now had another election in Northern Ireland, there is an opportunity to make a fresh start, which the Government are very hopeful of doing.

Lord Trimble: My Lords, perhaps I may suggest to my noble friend that we would all benefit from a close reading of the terms of the Belfast agreement on this point? Those terms make it clear that the core of any possible Bill of Rights for Northern Ireland is to be the European Convention on Human Rights, possibly together with some supplemental matters to reflect the special circumstances in Northern Ireland. That is open to a lot of interpretation, and is there not a very clear and quite principled disagreement between the major parties in Northern Ireland on its interpretation?

15 Jun 2011 : Column 783

Lord Shutt of Greetland: My Lords, people can interpret these things differently. However, the agreement of 10 April 1998 quite clearly talks about rights supplementary to those in the European Convention on Human Rights to reflect the particular circumstances of Northern Ireland. It states:

"These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and-taken together with the ECHR- to constitute a Bill of Rights for Northern Ireland".

Those are the words of the Belfast agreement.

Baroness Smith of Basildon: My Lords, the Government said, as the noble Lord has confirmed, that they would return to the issue of the Bill of Rights following the election of the new Assembly and Executive, which are now in place. The Prime Minister has also written that he stands ready to facilitate agreement. Can the noble Lord inform us-I have not got this from his answers so far-of the actions taken by the Government to date, following the elections, to facilitate that agreement? Also, what discussion have the Government had with the commission on the UK Bill of Rights on the Northern Ireland Bill of Rights?

Lord Shutt of Greetland: My Lords, I am not certain about discussions with the new UK commission. It is involved throughout the United Kingdom. It has sought people to help it from Northern Ireland, Scotland and Wales. I do not think I am able to say that any further work has been done, but talks about talks are going on. I mentioned that civil servants have already been to Northern Ireland to get things moving. It is only a matter of weeks since the Stormont election and there could be criticism of the time, but this is on a different scale from the 12 years that elapsed under the previous Administration.



3.21 pm

Asked by Baroness Hussein-Ece

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, the United Nations Secretary-General has made it clear that a solution will take compromise and flexibility from both sides. We hope that both leaders take advantage of the meeting with the United Nations Secretary-General, or his representative, on 7 July, and the period leading up to it, to work jointly and concretely towards reaching a mutually acceptable, lasting settlement. We will lend whatever support we are able to in the hope of bringing the negotiations to a successful conclusion.

Baroness Hussein-Ece: I thank my noble friend for that reply. He will be aware that United Nations' peacekeeping troops have been in Cyprus since 1964 and that inter-communal talks have been going on intermittently since 1967. Post the 2004 Annan peace

15 Jun 2011 : Column 784

plan, which was rejected by the Greek Cypriots, the Turkish Cypriots remain isolated, while Greek Cypriots are in Europe and are to take over the presidency of the EU next year. If the latest round of talks fails, will it be time to look at other solutions, and is a divided Cyprus in Europe desirable or sustainable?

Lord Howell of Guildford: Obviously we hope that the next round of talks will make progress. As the noble Baroness knows, the talks will take place under Alexander Downer, a former Australian Foreign Minister, whom many of us know. I am sure that he will preside skilfully and try to get some advance and agreement. On the role of the Republic of Cyprus in the EU presidency next year, we are confident that it will fulfil its responsibilities under European legislation, as it is required to do. I do not think we need have worries on that score. My noble friend is quite right to say that this has been going on for years-almost back into distant memory-and we long to see real and positive progress, but we think that the UN Secretary-General's procedures are the right ones to follow to achieve a better base.

Lord Faulkner of Worcester: Have there been any developments in the Apostolides v Orams case since the Court of Appeal upheld the European Court of Justice ruling that the judgment of the courts in the Republic of Cyprus had jurisdiction in the Turkish-occupied part of the island? Is it still the Government's view that British subjects who consider buying property in the north should exercise the greatest care in ensuring that they are entitled to buy that property?

Lord Howell of Guildford: On the latter point, it certainly is the Government's view that the greatest care should be exercised. A complex and sensitive issue of the Cyprus problem is the question of title deeds. Our advice has been to give very clear guidance and to take great caution when purchasing property in Cyprus. I cannot comment particularly on the Orams case at the moment, but the British High Commissioner in Cyprus has raised this issue with the Republic of Cyprus Ministry of the Interior and received assurances that the Cypriot Government intend to introduce a Bill to address the overall problem of finding that the people from whom you bought a property were not the legal owners. I recognise that the issue has affected a large number of British citizens who purchased property in Cyprus. Ultimately, this is a matter for the Cypriot Government.

Lord Maginnis of Drumglass: My Lords, does the Foreign Office remember what the Akritas plan was? If so, will the Minister tell the House where else within our sphere of influence has an entire national identity been shunned and isolated, as the Turkish Cypriots' has been for 37 years for resisting the Greek Cypriot plan to ethnically cleanse them?

Lord Howell of Guildford: I think that I can safely say that the Foreign and Commonwealth Office has a pretty long memory about many of these issues. In some cases, as we know from a recent announcement, some of the files were not immediately available but recently have become available about those dark days

15 Jun 2011 : Column 785

in the past. The noble Lord is taking us back to many plans and arrangements, going right back to EOKA itself, which ended in tragedy and difficulty and have underpinned the situation we have today of a divided island. The best thing to do is to put these matters behind us and try to build a positive and creative atmosphere in which we can overcome the still considerable range of problems to bring about the end of this island partition and the proper emergence of a bizonal, federal Cyprus.

Baroness Scott of Needham Market: My Lords, does the Minister agree that the biggest practical problem facing Cypriots wanting to reunify is the difference in GDP between the two halves of the island, and that the best way of improving things on the Turkish Cypriot side would be for the European Union to implement the direct trade regulation? Can the noble Lord assure us that the Government will really push for this particular measure, which is practical and offers part of a solution?

Lord Howell of Guildford: I have two points in answer to my noble friend. First, the EU is putting a considerable volume of funds into northern Cyprus, precisely with the thought that when the happier days come, the disparity in incomes will be somewhat overcome. I have a figure here of €259 million, I think, for the current year, a very considerable sum indeed. That may be over two years, actually. So on that side things are being done. As to the problem of trade between Turkey and the rest of the EU and the bar on the use of Turkish ports by EU or Greek Cypriot shipping in response to the fact that the EU appears to have pursued a policy of isolation of northern Cyprus, that is a very difficult issue. There is a stalemate at the moment, with each side waiting for the other to move. However, I agree with my noble friend that if we can get movement on that front on both sides, trade and prosperity will open up and the problems of northern Cyprus will be further alleviated.

Lord Corbett of Castle Vale: May I urge the Minister to continue the support of the United Kingdom for the United Nations recommendation over many years that the answer to the problem in Cyprus is a bizonal, bifederal state based on political equality and that any other solutions simply will not work? It is easy to blame other powers in the region for doing this or that, this year or last year or whenever, but the real answer is that given the active support of the new Turkish Government and the Greek Government and especially in the light of the better relations that now exist between them, they should take the lead to encourage the leaders of both communities in Cyprus that a solution is almost a hand's reach away if they simply make up their minds to get down to doing this and giving it a try.

Lord Howell of Guildford: The noble Lord speaks complete sense, and I agree with very nearly everything he says. Obviously, we have hopes: there is a renewed Government in Turkey, which is playing as a nation a responsible and forward part in the global agenda and certainly the agenda of the entire region. We must

15 Jun 2011 : Column 786

look to the Turkish Government to play their part; we must also look to Athens to the Greek Government, who have many problems on their plate at the moment, to be constructive. There is absolutely no doubt that with the right spirit in Athens and Ankara, we really could make progress in this very long-standing problem.



3.30 pm

Asked by Lord Chidgey

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, we are deeply concerned by the situation in Abyei and the current violence in Southern Kordofan. We call for an immediate cessation of violence and urge the parties to work through the African Union-facilitated negotiations to resolve their differences. Michael Ryder, the UK special envoy to Sudan, is in Addis Ababa today, supporting these talks. We are particularly concerned by the humanitarian impact and the lack of access for humanitarian agencies. We strongly urge the Sudanese armed forces from the north and the Sudanese People's Liberation Army to allow humanitarian agencies immediate access to those who most need their help.

Lord Chidgey: I am very grateful to my noble friend for that Answer. Does he agree that the situation unfolding in Southern Kordofan is creating a major threat to regional stability? Will he confirm recent reports that of the 60,000 people in Kadugli, 40,000 have fled from the heavy fighting, which has included bombing and strafing by the Sudanese army; and that some 10,000 are now stranded on the roads without sustenance of any form? Will he confirm also the eye-witness reports of the Sudanese army going from house to house, pulling out opposition supporters and local officials and executing them? Will he confirm that UNMIS has completely failed to protect civilians and assure the House that we, as major donors to northern Sudan, will apply every pressure we can to ensure the restoration of peace, the protection of civilians and the securing of access to humanitarian aid before independence on 9 July?

Lord Howell of Guildford: My noble friend obviously follows these matters extremely closely. Of course I can confirm his last point; we will use every possible endeavour and will hope that the talks going on under the AU implementation panel in Addis Ababa will begin to lead to a calming down of the situation, and to the necessary humanitarian access that at present is being denied. My noble friend asked whether I could confirm various reports. Obviously, in detail, I cannot. What I can say is that we have had a range of reports with horrifying elements to them. We completely deplore the bombing of civilians by the forces of Sudan and Khartoum. All these developments must cease-there must be an immediate cessation of this kind of fighting-so that we can get back to what we hoped

15 Jun 2011 : Column 787

would be a pattern of peace under the comprehensive peace agreement, so that Southern Sudan can move towards its independence day on 9 July.

Baroness Cox: My Lords, is the noble Lord aware that there is reliable evidence, including photographic evidence, of the aerial bombardment of civilians in Southern Kordofan, including the use of helicopter gunships to chase civilians like wild animals; and that there are reports of UNMIS forces standing by while northern soldiers kill civilians in front of them? Will the Minister indicate whether Her Majesty's Government will press the UN Security Council to take effective action to ensure that UNMIS forces will be effective in their role, and also to give serious consideration to the priority request of local people for a no-fly zone?

Lord Howell of Guildford: The noble Baroness is right when she confirms what I said about the bombing, which we deeply deplore. On the question of UN action, there are proposals that may be moving towards a resolution, but of course resolutions do not necessarily deliver the goods. What is needed is a much stronger operation. UNMIS needs reinforcement and has had some already-although it has not been a total success in protecting civilians from the atrocities that the noble Baroness describes. There is also some hope-perhaps that is too strong a word and I should say some movement forward-to be gained from the agreement that appears to have been accepted in Khartoum that an Ethiopian, non-UN force should intervene in Abyei to try to bring peace and to stop any further fighting and conflict arising both from tribal differences and differences between the north and south.

The Lord Bishop of Chichester: My Lords, does the Minister agree with Archbishop Deng, the archbishop of the Episcopal Church of Sudan, that the situation at the moment has all the hallmarks of ethnic cleansing and potential genocide, and that this adds a very particular urgency to the need for effective international action to bring an immediate end to the bloodshed and also to secure a long-term, lasting peace?

Lord Howell of Guildford: I agree with the right reverend Prelate. I do not think that there is any doubt that this is a very serious situation, with some extremely ugly developments, and that it needs very urgent action by both north and south-but particularly by the northern forces, which are using heavy weapons to attack civilians in a completely unacceptable way.

Baroness Kinnock of Holyhead: My Lords, in the past few days we have heard a number of responses to the terrible situation in Southern Kordofan: the White House has talked about crimes against humanity and the targeting of individuals on ethnic grounds; and the most reverend Primate the Archbishop of Canterbury has described what he calls "government-supported terror" and "another Darfur". However, from our Foreign Secretary we have had only a short Written Statement which talks of his concerns and condemnation. In response to such appalling atrocities, surely we have

15 Jun 2011 : Column 788

a right to expect more assertive words from the British Government, and a commitment to urgent action, such as, particularly, a movement to Chapter VII of the UN Charter.

Lord Howell of Guildford: I am the first to salute the noble Baroness's concerns in this area, but I do not think that she is being quite fair. My right honourable friend the Foreign Secretary has spoken out about these matters both at Foreign Office Questions and in quite long Statements, and I know that it is a major preoccupation. Possibly the best evidence of his close preoccupation with these extremely worrying concerns is that he will attend the independence on 9 July, in Juba, together with other international leaders; the full support which is already reflected in our substantial consulate-general, to be an embassy, in Juba; the extremely close, daily involvement of our officials in the whole operation; and the very substantial aid programmes which we offer both to the new South Sudan as it emerges and to address the continuing problems of north Sudan-providing, I should add, that they, in a sense, follow more responsible policies and cease these hideous, open and atrocious attacks on unarmed civilians.

Undertakings for Collective Investment in Transferable Securities Regulations 2011

Gender Recognition (Approved Countries and Territories) Order 2011

Legal Services Act 2007 (Appeals from Licensing Authority Decisions) Order 2011

Legal Services Act 2007 (The Law Society and The Council for Licensed Conveyancers) (Modifications of Functions) Order 2011

Co-operation in Public Protection Arrangements (UK Border Agency) Order 2011

Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011

Pensions Act 2007 (Abolition of Contracting-out for Defined Contribution Pension Schemes) (Consequential Amendments) (No. 2) Regulations 2011

15 Jun 2011 : Column 789

Pensions Act 2008 (Abolition of Protected Rights) (Consequential Amendments) (No. 2) Order 2011

Motions to Refer to Grand Committee

3.37 pm

Moved by Lord Strathclyde

That the draft orders and regulations be referred to a Grand Committee.

Motions agreed.

Consumer Insurance (Disclosure and Representations) Bill [HL]

Second Reading

3.37 pm

Moved by Lord Sassoon

That the Bill be now read a second time.

Lord Sassoon: My Lords, a Second Reading Committee considered the Bill in the Moses Room on Monday 13 June, and I therefore beg to move this Motion formally.

Lord Lloyd of Berwick: My Lords, I regret very much having missed the Second Reading debate on Monday-somehow it escaped my notice. It was a most interesting debate and I should like to have taken part. All I will say now is that this Bill was very well chosen for the new Law Commission Bill procedure and I hope that there are others like it in the pipeline. I support the Motion.

Motion agreed.


Moved byLord Sassoon

That the Bill be committed to a Special Public Bill Committee.

Motion agreed.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Order of Commitment Discharged

3.39 pm

Moved by Lord Hunt of Wirral

That the order of commitment be discharged.

Lord Hunt of Wirral: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

15 Jun 2011 : Column 790

European Union Bill

Report (3rd Day)

3.40 pm

Clause 18 : Status of EU law dependent on continuing statutory basis

Amendments 32 to 32B not moved.

Amendment 33

Moved by Lord Mackay of Clashfern

33: Leave out Clause 18 and insert the following new Clause-

"Status of EU law dependent on continuing statutory basis

By virtue of the European Communities Act 1972 directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom."

Lord Mackay of Clashfern: My Lords, this amendment relates to Clause 18, which is in the nature of a declaratory clause setting out the position that the Government believe, and I entirely agree, that the operation of European law in the United Kingdom depends on the European Communities Act 1972, which is of course referred to in the clause as proposed by the Government. It is important that this declaratory measure should be made because of the theory sometimes propounded that Community law in the United Kingdom derives from the treaty alone by virtue of the European Union legal order. I believe that it is right that we should make it plain at this juncture that that is not so and that the enforcement of European law in this country is due to the enactment of the 1972 Act.

This may seem theoretical but it is perfectly possible that it might have some practical effect in the event of the passerelle clauses in the Lisbon treaty being adopted. I believe that, ultimately, the question of whether a particular piece of European law applies in the United Kingdom depends on United Kingdom statute. Therefore, the ultimate decision would be for the courts of the United Kingdom. Of course, these courts would take account, no doubt, of any relevant decision of the European Court of Justice in Luxembourg, but this is certainly a possibility. For my part, it is useful to make clear that in our country the law of the European Union is here by virtue of the sovereignty of our Parliament in enacting the 1972 Act. It is also very plain that the 1972 Act was very skilful legislation. For that we must be indebted, primarily, to my noble and learned friend Lord Howe of Aberavon.

My difficulty with the clause as drafted is that it opens with the suggestion that an Act should be referred to. We discussed this in Committee, when I moved an amendment of the same kind as I am moving today. The answer was that European law is not enforced in the United Kingdom solely by reference to the 1972 Act because a number of other statutes seek to do this, which my noble friend Lord Howell listed. Whether he is asserting that that is a complete list, I am not certain, but at least it is quite a long list. As I understand it, the important thing about these Acts is that they use the definition of Community law and Community treaties derived from the 1972 Act. Therefore, if the 1972 Act were repealed, they would

15 Jun 2011 : Column 791

be deprived of content in so far as they seek to impose European law in our country. The question arises in connection with, for example, the devolution statutes, where provision is made for ensuring that the devolved Administrations do not go off the rails in relation to Community law. That may or may not be a risk, but at any rate it is one for which it was thought wise to make provision.

The situation is that apparently there are a number of other Acts which use the European Communities Act 1972 for definition purposes. The Interpretation Act makes it clear that where a phrase such as "Community treaties" is used in a later Act, that is the meaning that is to be attributed to the phrase. If the European Communities Act 1972 were to be repealed, the definitions would be absolutely empty and these other Acts would have no effect. I therefore submit that it is amply sufficient to mention the 1972 Act and that the phrase "an Act" is certainly capable of a variety of interpretations, to some of which the noble Lord, Lord Kerr of Kinlochard, referred in Committee. For myself, I do not think that the Government intended any sinister meaning, but they have used an extraordinary shorthand in saying "an Act" when apparently they meant a list of Acts. It is much clearer and more effective to alter "an Act" to the Act that we know is responsible; namely, the 1972 Act.

I am grateful to my noble friend Lord Howell and the noble and learned Lord, Lord Wallace of Tankerness, for meeting me to discuss this matter. There is very little between us on the point of principle, but it is quite important that this singular and central Act should be the pillar of our understanding of the basis on which Community law applies in this country and that the idea that we have submitted to Europe without the sovereignty of Parliament being behind it is absolutely incorrect. A clear assertion of the Act which does this would, in my submission, be extremely useful. To water it down or make it ambiguous by referring to "an Act" is unfortunate. I beg to move.

3.45 pm

Lord Kerr of Kinlochard: My Lords, I shall be brief because the argument I would have made has just been expressed much more clearly than I could have done, thanks to the legal wisdom of the noble and learned Lord, Lord Mackay of Clashfern. He referred to my concerns and suspicions about the use of the generic term "an Act" rather than a straightforward reference to the 1972 Act. I am concerned that there might be some sort of dog whistle motive here in that there could be an indication, for those who wish to hear it, that we might be able to disapply a particular future Act if we were to choose to dislike it. I am sure that that was not the Government's motive. I share the scepticism of the noble and learned Lord, Lord Mackay, about whether that could be the motivation, because it would be completely misleading.

Directly applicable EU laws apply in this country for as long as we do not repeal the 1972 Act. The converse is the case, of course, as the noble and learned Lord has explained. It all hangs on the 1972 Act. The present clause even refers to the definitions in the 1972 Act, so if we repealed that Act, all directly

15 Jun 2011 : Column 792

applicable laws would cease to have effect in this country and we would be leaving the European Union. Why do we not just say that?

In my heart, I would like to have no Clause 18 because in principle I do not like declaratory clauses. My head tells me that we cannot get rid of it and therefore we have to get it right. That is the case for Amendment 33.

Lord Waddington: There is just one little matter that puzzles me and I would be very grateful for my noble and learned friend's help on it. If Amendment 32B is read along with Amendment 33, it seems to suggest that Amendment 33 covers all the ground in Clause 18 but merely puts it better. In fact, Amendment 33 does not address one of the matters which Clause 18 seeks to address; that is, the suggestion that EU law may be binding on us quite irrespective of any Act of Parliament. I wonder what my noble and learned friend's answer is to that, because I do not think that his Amendment 33 covers one of the matters which Clause 18 seeks to address. The argument advanced by counsel in the metric martyrs case suggested that EU law was binding on this country quite apart from any Act of this Parliament.

Lord Lester of Herne Hill: I have added my name to the amendment. When I was young and at the Bar I remember that there was a High Court judge all of whose judgments were two words: "I agree". I shall do my best to follow that admirable example as I agree with the analysis of the noble and learned Lord, Lord Mackay of Clashfern. I want to add a couple of things. First, paragraph 114 of the Explanatory Notes refers to a case that I was in more than 30 years ago, Macarthys Ltd v Smith, in which Lord Denning set out the exact position recited in that paragraph. The Explanatory Notes recite:

"As Lord Denning noted in the case of Macarthys Ltd v. Smith ... 'Community law is part of our law by our own statute, the European Communities Act 1972. Community law is now part of our law: and whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it.'"

That is exactly what this amendment puts into statutory language. The 1972 Act, the brilliant Act, if I may say so in his presence, introduced by my noble and learned friend Lord Howe of Aberavon, is the organic Act. That Act is the parent. It is that Act which made sure that the binding force of European Community law would not be directly as a result of judgments of the Luxembourg Court but would be directly as a result of the Geoffrey Howe Act. That is what is said here. To recite further Acts which have come in afterwards by way of a list, as the noble and learned Lord, Lord Mackay, has indicated, is inappropriate.

Lord Williamson of Horton: It seems a long time since we discussed Clause 18 at Second Reading and in Committee. I would recall that it is only tenuously linked to the referendum lock clauses. It has been described as the parliamentary sovereignty clause, but it is perhaps best described, as in the words of the Bill, as a clause on the "status of EU law". It is a declaratory provision which confirms-it does not establish-that

15 Jun 2011 : Column 793

directly applicable or directly effective EU law takes effect in the UK only as a result of an Act of Parliament. Some people do not like declaratory provisions in legislation, but the Government may certainly propose such a clause if they think it has importance in maintaining public confidence by confirming, for the first time in statute, our existing treatment of EU law within the UK's domestic legal order. It is consistent with the decisions of our courts, notably by Lord Denning in Macarthys Ltd v Smith in 1979.

Amendment 32B has not been moved, so Clause 18 is in the Bill and we have a choice between the Government's text and the revised text proposed in Amendment 33, which refers specifically to the European Communities Act 1972 rather than to an Act of Parliament. The Explanatory Notes to the Bill state that the words,

cover UK subordinate legislation made under Acts and also Acts and measures of the devolved legislatures in exercise of the powers conferred on them by the relevant UK primary legislation.

That is the description, but will the Minister say-this is the same point that has been broadly covered by the noble and learned Lord, Lord Mackay- whether that is the specific reason why these words were chosen in the Government's text? As everything seems to come back to the European Communities Act 1972, would the reference to that Act in the text of the amendments not also cover subordinate legislation and Acts of the devolved legislatures? That is what has been stated and I should like the Government to confirm whether that is the case.

Lord Waddington: Before my noble friend sits down, does he not agree that however elegant may be the language of Amendment 33 and although it states clearly that EU law is binding in this country because of the 1972 Act, it does not scotch the proposition that EU law may be binding for other reasons. That is surely the point. It says only that EU law is binding because of that because we know it. What we want to be sure of is that the argument that EU law may be binding other than for that reason is not allowed to fly.

Lord Williamson of Horton: I do not agree with that. I think that the point is fully covered by the declaratory provision that the Government have put forward and the possible amendment of it.

Lord Pannick: My Lords, I, too, support the amendment. It removes the obscurity and the uncertainty in Clause 18. My answer to the question that has been posed twice now by the noble Lord, Lord Waddington, is that the amendment is clear. It is "by virtue" of the 1972 Act and therefore by virtue of nothing else that EU law is recognised and available in law in the United Kingdom. It cannot mean anything other than that. The clarity is provided, in my opinion, by the amendment. The noble and learned Lord, Lord Mackay of Clashfern, explained that the answer given by the Minister in Committee about why the clause refers generally to an Act of Parliament rather than to the 1972 Act was

15 Jun 2011 : Column 794

because there are other uses of primary legislation, such as the Equality Act, that give effect to aspects of EU law.

I will add to the noble and learned Lord's explanation about why it is not appropriate for Clause 18 to be drafted in this general manner. First, the constitutional concern that Clause 18 seeks to address and to which he referred does not arise out of the fact that Parliament has on occasions chosen to refer to EU law obligations. The constitutional concern-and I do not share this concern-is that the 1972 Act generally imports EU law rights, powers, remedies and so forth into United Kingdom law without the need for specific enactment. If Clause 18 has any purpose at all it is to emphasise that just as Parliament created this status for EU law by the 1972 Act-and it was only by the 1972 Act-so Parliament may take it away.

The other reason why it is appropriate in Clause 18 to focus on the 1972 Act and not generally is that the 1972 Act did not just give legal effect to EU law rights by Section 2(1). Section 3 provides for recognition by English courts of EU treaties and instruments, and for such matters to be questions of law to be determined in a court in accordance with the decisions of the European Court of Justice.

4 pm

There is no doubt whatever that, if Parliament were to decide in future to repeal or modify the 1972 Act or create exceptions to it, and were to do so unambiguously in primary legislation, then the courts of this country would give effect to that political decision. I share the doubt of the noble Lord, Lord Kerr, that Clause 18 is needed at all. I am concerned that to enact Clause 18 will wrongly suggest that in its absence there would be any room for real doubt on this subject. If we must have Clause 18, then let us not add to the confusion and obscurity. Let us be clear about this. For that reason, I support the amendment.

Lord Howe of Aberavon: My Lords, I rise with some hesitation for the second time on the Bill, partly because I do not have with me the actual 1972 Act-nobody else has quoted it. That quite clearly provides for the incorporation, as the noble Lord has just said. I am being offered a copy of it. It speaks for itself as follows, under the title, "General implementation of Treaties":

"All such rights, powers, liabilities, obligations and restrictions from time to time treated or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies".

Nothing could be more comprehensive or comprehensible than that. I emphasise the three words, "without further enactment".

I repudiate any tributes that may have been paid to me. I did not draft that. It would have been wholly beyond my capability then and indeed now to draft a provision of such clarity and formidable length as that. If we must pay tribute to the author, it was the

15 Jun 2011 : Column 795

senior parliamentary counsel, Sir John Fiennes. It was a truly remarkable Act. It is absolutely clear and it is one of the foundations of the treaty to which we belong. I cannot really say anything more than that. It suffices to rest content with the re-enactment, as it were, of the recognition of another time for something that has been the foundation of our membership of the European Community from the outset.

If I may be less than frivolous and make a sad observation, a memorial service takes place in Gray's Inn at 5 pm this evening and I hope that the House will forgive me if I do not remain until the end of the debate on this proposed new clause if it lasts that long.

Lord Richard: I have two things to say very briefly about this. On Second Reading, I think I made it clear that I did not approve of Clause 18. I did not think that it was needed, as it seemed to me purely declaratory. It did not add anything or take anything away from the law; it was a statement of what the law was-and it is perfectly clear that we all knew what the law was, and we all know what it is. So I was a little surprised to see the terms of the amendment proposed by the noble and learned Lord, Lord Mackay of Clashfern. If we have to have a declaratory clause of this sort on this issue, I would vastly prefer his drafting than the original government drafting, but I accept and would vote for the amendment with some considerable reluctance. In my limited experience of declaratory clauses, which is not as great as that of the noble and learned Lord, on the whole clauses that are meant to clarify the law very frequently have precisely the opposite effect. I am doubtful about it and do not like it, but in the end I will support it.

Lord Flight: My Lords, I rise with some trepidation, as I am not a lawyer. I have not been entirely satisfied by the arguments that have been put forward by both the noble and learned Lord, Lord Mackay, and other eminent lawyers in the House that we can rely entirely on the 1972 Act and the fact that apparently subsequent legislation depends on the definitions in that Act, to the effect that the 1972 Act covers all relevant legislation.

The noble and learned Lord made the point that there was very little difference between his position and that of the Government in this territory, so I wonder what is wrong with taking a belt and braces approach to this matter. If I understand the position, there are other sources in relation to subsequent Acts that are as drafted not wholly dependent on the 1972 Act, and EU law can be given legal effect in the UK by secondary delegated legislation and not just by primary legislation.

Lord Lester of Herne Hill: I realise the noble Lord is not a lawyer and what I am about to say may seem unfair, but the answer to what is wrong with his suggestion is that the Court of Appeal and the House of Lords in the cases of Macarthys v Smith and Factortame have made the legal position perfectly plain. That is why the noble Lord, Lord Richard, is right in saying that we do not need Clause 18, but if we are going to have it we may as well have it stating the law as declared by our judges.

15 Jun 2011 : Column 796

Lord Flight: I should probably defer to the noble Lord, but I do not think that was a full answer to my mind to the points raised by the noble Lord, Lord Waddington, or to the whole issue of judges subsequently choosing to interpret the position with regard to the martyrs' case. It seems perfectly possible in theory that there may be a House of Lords judgment which is perfectly valid and accepted at the time it is given, but subsequently manages to get twisted by the interpretation of particular judgments by noble Lords. I come back to the rather straightforward point, which is that from the point of view of those who wish to have this territory absolutely nailed, what is wrong with a belt and braces approach?

Lord Deben: I would not like it to be thought by your Lordships that those who were not lawyers disagreed with the lawyers. As a non-lawyer, it seems to me to be very clear that there is a good reason why we should not have the additional parts: it is misleading to have them. It suggests that the additional parts have the same validity and strength as the central issue of the 1972 Act. I would account it as the proudest moment of my parliamentary history when I voted for that Act-it was the moment when we achieved the thing that in all my young life I longed to achieve, which was the beginning of closer European unity, for which I have always stood. I do not want that Act to be removed from its pedestal place. It is the Act that says, very clearly, that the United Kingdom is a sovereign state, and from its sovereignty it grants this particular place for European legislation. Should at some future time a Government, in foolishness almost unimaginable, decide that they did not wish to continue with that Act this sovereign Parliament could, by repealing that Act, change the circumstances-and change them of its own strength, volition and powers.

This is a declaratory statement. I agree with the noble Lord, Lord Richard, that it is not necessary but given that it has been raised, it becomes necessary. Now that it is necessary it is crucial that it should be extremely clear. The noble and learned Lord, Lord Mackay of Clashfern, has given a great opportunity to this House to unite around something which should not divide those on either side of the European divide, or indeed those in the general mishmash in the middle. The worry which I have-this is why I have become less happy in the mean time-is the question which the noble Lord, Lord Kerr, raised earlier: if the Government do not accept this as a reasonable matter, what is it that is hidden in that alternative? For this must be right and if it is not, the rest is wrong.

I shall say one thing to the noble Lord, Lord Waddington. If his worry is a real one, he is worried by either of the statements before us. If his worry is a real one and the noble Lord, Lord Pannick, got it wrong, the fact is that he would be wrong about the Government's formulation as well. Although I therefore have sympathy with the noble Lord, Lord Waddington, he cannot defeat his problem by preferring the one against the other. To defeat his problem, he would have to initiate some extra bit to the Act to make it clear. I do not believe that is necessary but his intervention, although admirable, is really not about the division between these two formulations, so I pray that your Lordships' House will support the amendment.

15 Jun 2011 : Column 797

However, I would like it even more if the Government were to say that they thought, on balance, it would be better to go with what is clearly a widely held feeling in all parts of the House and with those who are in favour and those who are against our membership of the European Union.

Lord Elystan-Morgan: My Lords, it does not matter a great deal whether the submission made by the noble Lord, Lord Deben, or that made by the noble Lord, Lord Waddington, is correct. At the end of the day, it means not only that the European Communities Act 1972 made great inroads into our independence but that other Acts of Parliament have done exactly the same. However, through the machinery of Section 3 of the 1972 Act, the inroads are not permanent. They are as permanent as we wish them to be. It is very much the same as if we made a lease of part of our sovereignty, but a lease that we can recall and cancel at any time we so decide.

The only other matter that I would like to mention is the modesty with which the noble and learned Lord, Lord Howe, disassociated himself from the triumph of the 1972 legislation passing through the House of Commons. It is true that he did not draft the Bill, but he steered it with magnificent competence through the House. I remember the back-handed compliment which he had from the late Michael Foot, who said words exactly like these: "The honourable and learned gentleman the Solicitor-General has shown such nimbleness and adroitness as would make the great Houdini look like a helpless arthritic".

4.15 pm

Lord Stoddart of Swindon: My Lords, I took part in the debate on this clause in Committee. I remain completely opposed to its inclusion in the Bill. I agree with the noble Lords, Lord Richard and Lord Deben: it should not be there, it is not necessary and it is dangerous that it should be there. It is clear to virtually everyone that the 1972 Act is the only means by which European law can be introduced and enforced in this country. It is an absolute situation that one Parliament cannot bind its successor. Therefore, an Act of Parliament such as the 1972 Act can be repealed. I have been told time and again by the government Front Bench, whether Conservative or Labour, when I have said that we are locked into this and have lost sovereignty, that our sovereignty lies in the 1972 Act. As I say, that is absolute; there is no need at all to qualify it.

I am in something of a quandary. The amendment is probably better than the original clause, but really I do not want the amendment either. What on earth am I supposed to do? If I vote for the amendment, we still have this qualification in the Bill about the absolute nature of the European Communities Act 1972. If I want to vote out any reference to that Act, which is what I would need to do, I have to vote against the amendment and then vote against the original clause. Is that the case, or is there some way around that? If any noble Lord could advise me on how to get this obnoxious clause out of the Bill, I would be most obliged.

15 Jun 2011 : Column 798

Lord Spicer: My Lords-

Lord Pearson of Rannoch: My Lords-

Lord Triesman: My Lords-

Lord Pearson of Rannoch: My Lords, I think the noble Lord, Lord Spicer, and I have something to say.

Lord Spicer: My Lords, I had not meant to say anything at all until I heard some of the arguments. It seems that the 1972 Act is not totally invulnerable. Factortame was a nasty scare. Therefore, the last thing that we want to do at this stage is to throw further doubt on the 1972 Act by talking about "an Act" rather than the 1972 Act.

Lord Pearson of Rannoch: My Lords, I have two questions for the Minister that I asked in Committee but to which I did not get an answer. First, will he confirm that the noble Lord, Lord Kerr of Kinlochard, is 100 per cent right when he says that when the happy day comes-he did not put it like that-when the 1972 Act is repealed by the House of Commons and your Lordships' House, it will then be definite that we are out of the European Union?

However, the question is not quite as simple as that. In January 1997, your Lordships were good enough to give Second Reading to a Bill in my name that did exactly that-it repealed the 1972 Act. At the time I was advised by the Clerks that this would still leave us with a problem from the Eurosceptic point of view, which wants nothing to do with any European legislation whatever. That problem would be that all the EU law that had been sewn into domestic law since 1972 would remain valid in British law. At the time, the Clerks advised me that one is not allowed to introduce a Bill into your Lordships' House that is not capable of practical fulfilment. Their advice at the time was that it would have taken 12 parliamentary draftsmen some three months to identify all EU law sewn into domestic law, which could then have been repealed at our leisure. I am glad to say that they even suggested having a massive Henry VIII clause at the end of the procedure. Therefore, my first question to the Minister is: would it really still be the case that EU law remained in British law? There is far too much of it; nowadays the majority of our national law is passed in a wholly undemocratic process in Brussels to the exclusion of Parliament in this country.

My second question to the Minister was, and is, as follows. When, as I say, the joyous day comes that the 1972 Act is repealed, that surely means that the Lisbon treaty falls in its entirety, because the Lisbon treaty is only an amendment to several other amendments to the 1972 Act. When that happens, is this country still obliged to follow the provisions of the Lisbon treaty which govern how a country leaves the European Union? That is a process, I think-I may be wrong-under Article 50 of the Lisbon treaty, which takes two years and puts the Council in charge of the process and, indeed, the cost of the country leaving the European Union. When we repeal the 1972 Act, does that provision fall as well? Are we then, as the noble Lord, Lord Kerr, said, free of the whole wretched thing, or are we still

15 Jun 2011 : Column 799

bound by Lisbon? What about the domestic law which is sewn into our law? Surely that remains binding until repealed by Parliament.

Lord Triesman: My Lords, I apologise to both noble Lords who have just spoken. In my eagerness to get up I may have mistakenly thought that we were coming towards the end of a deliberation. My reason for thinking that was that this has been in some ways a very one-sided debate. There does not seem to be huge difference across the House, whether it is between lawyers or non-lawyers or members of one party or another. For those reasons, I hope that the House will allow me, a non-lawyer, at least temporarily to fill the shoes of the noble and learned Lord, Lord Falconer of Thoroton, whose name is to the amendment.

A number of noble Lords have made very clear-cut responses to the point made by the noble Lord, Lord Waddington. I fear that the noble Lord, Lord Flight, is frightening himself with what may be extremely fanciful personal anxieties, which I hope that he will be able to put to bed as he rests tonight. The noble Lord, Lord Pearson, does not seem to be speaking to this debate, amendment or, indeed, to anything else that your Lordships are discussing. As I understand it-no doubt I will be corrected if I am wrong, not least by the noble Lord-we are not debating the repeal of the 1972 Act, but trying to understand its status in United Kingdom law.

Lord Pearson of Rannoch: My Lords, in actual fact what I have said is relevant to this amendment because it says that all British law is only there because of the 1972 Act. I am merely asking what happens when it is repealed.

Lord Triesman: My Lords, I am sure that on the day that proposition is in front of the House, we will have an energetic debate and probably get to the bottom of it at that time. I am very tempted to respond to the noble Lord, Lord Stoddart, who asked what he should do. It would probably be ungracious to try to answer that question, but I suppose that sitting on his hands or repairing to one of the bars are among the available options. However, he illustrated the fact that there is a great deal of commonality right across the House on this issue.

I am among those who do not like declaratory clauses-I am wholly with my noble friend Lord Richard and the noble Lord, Lord Kerr, on this. I cannot understand what such clauses do other than call into question the fundamentals of our law and the statements that have been made about our law by the House of Lords and others. I cannot see the point. However, I accept that it is a political reality that there is a desire to see this kind of declaration in the Bill. That is why we support the amendment. If there is to be a declaration, it might as well be accurate. If we are going to declare things, let us be precise and accurate. The whole debate boils down to a simple proposition about what we learnt was Sir John Fiennes's excellent writing of the original legislation, regarding which the noble and learned Lord, Lord Howe, was far too modest about his role.

15 Jun 2011 : Column 800

That Act and Section 3 in particular are the head lease. There is nothing in any other Act that does not flow from it. The more we try to obscure that or suggest that there are other things that may flow from it, the less likely it is that anyone will understand that the declaration is accurate in any sense. This is a technical, not a party political, matter. We have had fantastically good advice. What a benefit it has been to all of us. Let us carry the amendment, which I hope will be pressed, and have a declaration that we can at least say is accurate.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I thank my noble and learned friend Lord Mackay of Clashfern for moving the amendment in the name of the noble Lord, Lord Kerr of Kinlochard. Indeed, I thank all noble Lords who have taken part in an important debate, which has flagged up the importance of the basis on which community law has effect in the legal systems of the United Kingdom. My noble and learned friend said that there was nothing in principle that divides us on this matter. As the noble Lord, Lord Triesman, said, it is a technical matter that to some extent relates to statutory interpretation. I hope that everything that has been said previously in Committee, and what I will say today, will reassure the noble Lord, Lord Kerr, that there is neither sinister intention, nor are any dog whistles being blown. The purpose is to assert the position that almost everyone who has contributed to the debate has made clear-European Union law has effect in the United Kingdom by virtue of statute passed by Parliament.

I join the tributes paid to my noble and learned friend Lord Howe of Aberavon, who, we fully understand, has gone to a memorial service. My noble friend Lord Lester of Herne Hill quoted Lord Denning in the case of Macarthys Ltd v Smith, in which he indicated that,

"Community law is part of our law by our own statute".

Dealing with the question of where Parliament stood on this, in the passage from the debates on the 1972 legislation quoted by the Constitution Committee in its report, my noble and learned friend Lord Howe of Aberavon said:

That is something to which we as a Government would certainly subscribe.

The key reason for wanting this declaration is that in spite of that, and in spite of the near unanimity in this Chamber that that is the position, we are aware that others have advanced arguments in courts or have written articles that have cast some doubt on that assertion. I know that there are always reservations about what are essentially declaratory clauses in Bills, but this one is important. As your Lordships' Constitution Committee indicated,

"Clause 18 is self-evident: it restates, but does not change, the law".

In response to one of the points made by the noble Lord, Lord Pannick, I should say that including such a declaration in no way raises doubts about other issues of parliamentary sovereignty. The Constitution Committee said:

15 Jun 2011 : Column 801

"We are confident that if parliamentary sovereignty were to be questioned in any other context, the existence of clause 18 would not prevent the courts from upholding the well understood and orthodox position".

4.30 pm

We come down to why the wording in the Bill is to be preferred to that in the amendment. I agree with the proposers of the amendment that directly effective and applicable European law can take place within the United Kingdom's legal order only provided that Parliament has determined that through its Acts. Where our views diverge is on whether the European Communities Act 1972 alone is the basis on which that has been achieved within the United Kingdom or whether other Acts of Parliament may also give effect to directly applicable and directly effective European law, independent of the 1972 Act. I am grateful to my noble and learned friend Lord Mackay of Clashfern for making himself available to discuss the matter with my noble friend Lord Howell and me. I know that he is aware that the Government have considered the amendment very carefully indeed.

I shall set out to the House the reasons why our strong, firm preference is for the wording as in the Bill. The amendment is based on the proposition that EU law takes effect within the United Kingdom legal order by virtue of the 1972 Act. I shall come on to deal with the point made by my noble friend Lord Waddington that it does not say, "by that Act alone". That may have been the intention, but it does not say that. In so far as other primary UK legislation may be given effect, those who have argued for the amendment argued that other legislation is merely consequential on the existence of the 1972 Act.

I can assure your Lordships' House that, in drawing up the Bill, we carefully considered whether it would be sufficient to couch a clause in terms very similar to the amendment, but after consideration we determined that it would not. My noble friend Lord Deben used the phrase "pivotal place" to describe the 1972 Act. The 1972 Act undoubtedly has a pivotal place. It is the key mechanism by which directly effective and directly applicable European Union law has been given effect in the United Kingdom, but on analysis of the full range of legislation under which EU obligations have been given effect, we concluded that to refer solely to the 1972 Act would not provide a sufficiently comprehensive and accurate statement of the legal position.

Other pieces of UK primary legislation exist independently of the European Communities Act and have been giving effect to EU law obligations. For example, the devolution settlements require Ministers to act in a manner compatible with EU law. Some of those instruments define EU obligations in a manner similar to the language used in Section 2(1) of the 1972 Act but, significantly, not by reference to it. For example, Section 126(9) of the Scotland Act defines Community law as,

15 Jun 2011 : Column 802

I accept that the term "Community treaties" is defined under Schedule 1 of the Interpretation Act 1978 by reference to Section 1 of and Schedule 1 to the European Communities Act 1972, and has meanings prescribed by that Act, but there is no cross-reference to Section 2(1) of the 1972 Act.

It might be suggested that all other legislation would be considered consequential on the 1972 Act rather than free-standing, but our conclusion is that that legislation is independent of the 1972 Act: that in so far as it makes directly effective or directly applicable European Union law within the United Kingdom legal order, it does so in its own right and not as a consequence of the 1972 Act.

It has been suggested that if the 1972 Act were ever repealed, all those other statutes would be utterly deprived of their content-that was the point made in advance by my noble and learned friend-at least in so far as those statutes relate to Community law. The Government accepts that if the 1972 Act were ever repealed, other references in other pieces of legislation would also be repealed. The circumstances in which that happened would be of fundamental political importance. However, that would not be as a consequence of the repeal of the 1972 Act per se, but because the 1972 Act and all the other legislation would be repealed only in the context of the United Kingdom's withdrawal from the European Union-which, I hasten to add to reassure the majority of the House, is certainly not on the Government's agenda. In other words, the existence of these other Acts is independent of the 1972 Act. They flow from the United Kingdom's treaty obligations and do not depend on the European Communities Act 1972. If, for example, the provisions in Section 126(9) of the Scotland Act, to which I referred, were not repealed, they would still be self-standing.

I accept that the problem would be the question of definition of "Community treaties", and that might well have to be argued before the courts. I suspect that my noble and learned friend would argue that it was devoid of meaning, but it is not clear that that would be the case. Indeed, it might well be argued that the very fact that Parliament chose not to repeal these provisions-in what is seen as a very important constitutional piece of legislation defining the powers and the scope of the Scottish Parliament-gave the matter some significance. That is hypothetical and may well be academic, but it was against that background that we wished to make sure that, when we put this provision into the Bill, we were being comprehensive.

In Committee, my noble friend Lord Howell mentioned on Clause 18 that there were other pieces of legislation. Examples include the Company Directors Disqualification Act 1986, the Chiropractors Act 1994 and the Competition Act 1998. Perhaps I may illustrate by reference to the Company Directors Disqualification Act 1986 the precise issues on which I should like the House to reflect. Under Section 9A of that Act, the United Kingdom must make a disqualification order against a person in certain circumstances, including where an undertaking commits a breach of competition law under either Articles 81 or 82 of the EC treaty, now Articles 101 and 102 of the TFEU. The Act refers directly to these treaty provisions without reference to the 1972 Act,

15 Jun 2011 : Column 803

and thus a court would be required to take these provisions into account, even in the absence of the 1972 Act. As I said, we are getting into statutory interpretation here. Nevertheless, we have proceeded as we have because we wished to be comprehensive.

Perhaps I may refer to the point made by my noble friend Lord Waddington. The amendment misses out what I believe to be an important qualification or point in the proposed new clause. The words at the beginning of Clause 18 make it explicit:

"It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law ... falls to be recognised and available in law in the United Kingdom".

The amendment misses out the word "only", leaving open the possibility of arguments being made that-

Lord Kerr of Kinlochard: I remind the Minister of the argument made by my noble friend Lord Pannick. If I introduced him to a lady and said that she was my wife because I married her, would I be required to say, "and because I have not married anybody else"?

Lord Wallace of Tankerness: No, my Lords, but one should consider the context. This new clause was proposed in its original form in the context of trying to lay to rest any contrary suggestion that there are other means-means which I do not think anyone in this debate has accepted; nevertheless, they are out there and are run as arguments-by which European Union law can be imported into the legal systems of the United Kingdom. That is why we use "only".

Lord Lester of Herne Hill: I hope that my noble and learned friend takes this question in the spirit in which I ask it. Is there not a danger that his approach would be in accordance with Lord Wilberforce's warning about the "austerity of tabulated legalism"?

Lord Wallace of Tankerness: That is the sort of question that one wants notice of and where the answer might in any case be misinterpreted. I think that I made it clear, and that it has been generally recognised in these debates, that this is against a background of suggestions made not in this Chamber-I think the position is perfectly well understood here-but elsewhere that there could be other channels via which European Union law could be imported into this country. We want to make it clear-I think there is near unanimity in the House-that it is by Acts of Queen and Parliament that the European Union law has effect.

The main difference between us is the view expressed in the amendment that the European Communities Act 1972 is the sole legislative vehicle for doing this. Our concern is that there are other Acts of the United Kingdom Parliament which make direct reference to European Union law, particularly the one on directors' disqualification, which does so without reference to any other form of the 1972 legislation, even through the Interpretation Act. As my noble friend Lord Flight said, it is belt and braces. In a situation such as this we believe that the belt and braces are required. It is a fine point-not one of principle, but it is one of statutory interpretation. We believe that to list would not be

15 Jun 2011 : Column 804

neat because of the danger of leaving one out, but we need to make it very clear that European law becomes part of our United Kingdom legal system through an Act of Parliament. That is the way it happens and by no other way. To limit it to one Act, however fundamentally important that Act, runs the risk of leaving others out which are already on our statute book. For that reason, I invite my noble and learned friend to withdraw the amendment.

Lord Mackay of Clashfern: My Lords, there is not much between us. On the other hand, it is important to have clarity. If there are other Acts which are required in relation to this situation, the option is to mention them. The words "an Act" do not give any precision whatever. Therefore, the use of the phrase,

is much clearer.

I think I am right in saying that the statutes, which are referred to as being other statutes-part of "an Act"-use the words defined in the European Communities Act; for example, the Community treaties. Those words are specified in the 1972 Act. All those Acts, in their dealing with European Community law, would be understood as having the meaning assigned to these phrases in the 1972 Act. If the 1972 Act were to be repealed, those phrases would be repealed with it because they would be deprived of the meaning which they had when the Act was enacted.

My noble friend Lord Waddington asked about "only". If he wants to improve our amendment, it is open to him to propose an amendment to that effect. Of course, that is still possible. If the amendment is passed, he could improve it at Third Reading because I am sure that clarification of an amendment passed on Report would be possible at Third Reading. I do not think it is required, but if he thinks it would improve it, let us see.

This amendment specifies the Act on which we rely. My noble friend Lord Flight talks about belt and braces-I suppose I am getting to the stage when they may be an important matter. If I am right, all the European legislation which is incorporated into our law has been done by virtue of the European Communities Act and the definitions provided in that Act.

Lord Elton: The lay men are floundering. My noble and learned friend rests a great deal on the importance of the definitions in the 1972 Act and said that if the Act were repealed these words would be repealed as well. I take it that he in fact means that the definition would be repealed but the words would still have a meaning and therefore the meaning could well be that intended in the original Act.

Lord Mackay of Clashfern: The possibility is that the 1972 Act is on the statute book when these later Acts were passed. Therefore, phrases like "the treaties" and "the community treaties" would be interpreted in the light of the 1972 Act. If the 1972 Act were repealed, these definitions would disappear altogether and there would be no phrase left of that kind because these phrases are all given the meaning of the 1972 Act. If you look at it this way, if a phrase is interpreted as

15 Jun 2011 : Column 805

being what it says in the 1972 Act and the 1972 Act is repealed, that phrase has no meaning at all thereafter, so this is really quite an important issue.

Lord Wallace of Tankerness: Will my noble and learned friend respond to my point about the Company Directors Disqualification Act 1986, which refers in Section 9A specifically to:

"Article 81 of the Treaty establishing the European Community (prohibition on agreements, etc, preventing restricting or distorting competition)",

and, in the following subsection, to Article 82 of that treaty, where it is not by reference to treaties in the 1972 Act but by specific reference to a specific treaty? If the 1972 Act were repealed would these words still not stand?

Lord Mackay of Clashfern: I suggest that the European Community treaty of itself would not be meaningful in our statutes until it was given effect by the 1972 Act; and when the 1972 Act ceases to operate, that goes along with it. That is the fundamental position. As far as trying to help the noble Lord, Lord Stoddart of Swindon, is concerned, I am not sure that it is my business to do that. The best advice I can give him, of course, is to support this amendment, and I think it right that the opinion of the House should be taken.

4.47 pm

Division on Amendment 33

Contents 242; Not-Contents 209.

Amendment 33 agreed.

Division No. 1


Adams of Craigielea, B.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Armstrong of Ilminster, L.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L.
Beecham, L.
Berkeley, L.
Best, L.
Bilston, L.
Boothroyd, B.
Boyce, L.
Boyd of Duncansby, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Carey of Clifton, L.
Carter of Coles, L.
Chester, Bp.
Chichester, Bp.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Collins of Highbury, L.
Condon, L.
Corbett of Castle Vale, L.
Corston, B.
Craig of Radley, L.
Crawley, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Deben, L.
Deech, B.
Derby, Bp.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
D'Souza, B.
Dubs, L.
Dykes, L. [Teller]
Eatwell, L.
Elystan-Morgan, L.
Erroll, E.
Evans of Parkside, L.

15 Jun 2011 : Column 806

Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Glasman, L.
Golding, B.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grocott, L.
Hall of Birkenhead, L.
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskins, L.
Hastings of Scarisbrick, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hennessy of Nympsfield, L.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Hooper, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kakkar, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
King of Bow, B.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Laird, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Lloyd of Berwick, L.
Low of Dalston, L.
Luce, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McIntosh of Hudnall, B.
Mackay of Clashfern, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maclennan of Rogart, L.
Mar, C.
Marshall of Knightsbridge, L.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Monks, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Ely, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Morrow, L.
Murphy, B.
Myners, L.
Nye, B.
Oakeshott of Seagrove Bay, L.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Oxburgh, L.
Palmer, L.
Pannick, L.
Parekh, L.
Patel, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Plumb, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rea, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B.
Saltoun of Abernethy, Ly.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Gilmorehill, B.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Tebbit, L.
Temple-Morris, L.
Thomas of Swynnerton, L.
Thornton, B.
Tomlinson, L.

15 Jun 2011 : Column 807

Tonge, B.
Tordoff, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Wigley, L.
Williams of Crosby, B.
Williams of Elvel, L.
Williamson of Horton, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Young of Hornsey, B.
Young of Norwood Green, L.


Addington, L.
Alderdice, L.
Allan of Hallam, L.
Alton of Liverpool, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Ballyedmond, L.
Barker, B.
Benjamin, B.
Berridge, B.
Bew, L.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Cathcart, E.
Chorley, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Cumberlege, B.
De Mauley, L.
Dear, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Eaton, B.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Empey, L.
Falkner of Margravine, B.
Feldman, L.
Feldman of Elstree, L.
Fink, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Framlingham, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glasgow, E.
Glenarthur, L.
Glendonbrook, L.
Goodlad, L.
Grade of Yarmouth, L.
Greaves, L.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Howard of Lympne, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussein-Ece, B.
Inge, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kilclooney, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Lamont of Lerwick, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lexden, L.
Lingfield, L.
Liverpool, E.
Loomba, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Maples, L.
Mar and Kellie, E.

15 Jun 2011 : Column 808

Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Neuberger, B.
Newlove, B.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Palmer of Childs Hill, L.
Palumbo, L.
Parkinson, L.
Parminter, B.
Pearson of Rannoch, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rennard, L.
Ribeiro, L.
Ripon and Leeds, Bp.
Risby, L.
Roberts of Llandudno, L.
Rogan, L.
Ryder of Wensum, L.
St John of Fawsley, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Slim, V.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Sterling of Plaistow, L.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Tenby, V.
Teverson, L.
Thomas of Winchester, B.
Tope, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
True, L.
Trumpington, B.
Tyler, L.
Ullswater, V.
Verma, B.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wasserman, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Willis of Knaresborough, L.
Willoughby de Broke, L.
Younger of Leckie, V.
5.02 pm

Amendment 33A had been retabled as Amendment 32B.

Amendment 34 not moved.

Amendment 35

Moved by Lord Kerr of Kinlochard

35: After Clause 21, insert the following new Clause-

"Duration of Part 1 and Schedule 1 (No. 2)

(1) Part 1 and Schedule 1 shall expire on the day on which the Parliament in which this Act is passed dissolves.

(2) In subsequent Parliaments, the Secretary of State may by order provide that Part 1 and Schedule 1 shall be deemed to have been revived from the beginning of the Parliament in which the order is made.

(3) An order under subsection (2) shall provide that Part 1 and Schedule 1 shall expire on the day on which the Parliament in which the order is made dissolves.

(4) An order under subsection (2)-

(a) must be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament."

15 Jun 2011 : Column 809

Lord Kerr of Kinlochard: My Lords, this is the Hemingway amendment-because the sun also rises. This amendment is really rather important. I wish to speak for it on constitutional grounds and on grounds of foreign policy. I shall make an argument about parliamentary sovereignty, and an argument about the national interest.

I begin with the constitutional argument. I see two of them. First, the provisions of this Bill are all otiose in this Parliament. The coalition has made it clear that there will in this Parliament be no treaty changes, no transfers of power and no extensions of qualified majority voting. Therefore, there will be no referenda and none of the matters which have engaged us through all these days and nights are of any relevance to this Parliament; they apply only in the next Parliament. I cannot think of any previous constitutional Bill which has had that effect. I can think of no precedent for a Bill that is designed solely to influence future Parliaments. Of course, the letter of the doctrine that one Parliament cannot bind its successor will remain the case, because a new Government could repeal the Act. In my contention, however, the spirit of the doctrine would be much better honoured if there were a requirement for an affirmative decision as a first act of each new Parliament that the provisions of this Act should continue.

My second constitutional argument concerns the fact that the referenda called for in the Bill would in every case be asking-whatever the substance of the issue -the question, "Do you wish to overrule your Government and your Parliament?". Before the referendum stage was reached the Government must by definition be in favour of the measure, because they all require unanimity in Brussels and both Houses of Parliament would have voted for the measure before the referendum question. The result of the referendum, if it was no, would be that an Act of Parliament was thereby revoked. I can think of no precedent for that. It has not applied to any past referendum in this country. In my contention, a referendum called for in this Bill is a direct undercutting of parliamentary sovereignty.

I believe it entirely right that each successive Parliament should be asked whether it wished its sovereignty to be undercut in the way provided for in this Bill, and that is why I favour a sunrise clause. This is my second constitutional argument and I have not mentioned Edmund Burke.

On the foreign policy argument, I do not believe that we shall see many referendums. We know that we shall see none in this Parliament as a result of this Bill, and I do not think that we will see many in future Parliaments either. Some of the circumstances listed in the Bill that would trigger a referendum are wildly implausible. There are some which I cannot see many member states supporting, while there are others which I think it inconceivable that any Government would support. For example, there is a reference to the own resources decision. Unanimity on the own resources decision is absolutely crucial, and I cannot think that any British Government would be stupid enough to give it away, so I do not think we will have a referendum on that. There are other items which are minor matters of detail. No Government are going to be politically naive enough to go to the country on an obscure matter of procedural detail lost in the treaties.

15 Jun 2011 : Column 810

However, as we saw in the debate touched off by the noble Lord, Lord Davies of Stamford, on his Amendment 22A the other night, there are some matters where a change would undoubtedly be in the interests of the UK. The clause he referred to is one where British industry would greatly welcome the introduction of qualified majority voting. But there is no question of any British Government agreeing that the country should be asked, "Do you want to overrule Parliament on whether the list of military goods that are exempt from single market disciplines should be changed by qualified majority voting?". Any Government who put that question to the country would be laughed to scorn, so none of them will. The British negotiator in Brussels will be unable to put forward the proposal or support it if it is made by anyone else because his Government back home will tell him, "Don't be silly. That would trigger a referendum".

Ministers have argued that my fears are exaggerated. They have also argued that the price is worth paying and a bit of rigidity is necessary in the interests of restoring confidence in successive Governments' handling of European affairs and recreating trust. I do not agree, but they may be right and I accept that only time can tell. My fear is that other member states, seeing how much concrete we have poured over our feet, will be tempted or forced to bypass our perceived rigidity by excluding us from the debate and proceeding by what is known as "enhanced co-operation" or acting outside the treaties without us. I think that we may be at a Messina moment. Again, the Government think that I exaggerate, and they may be right because, as I have said, only time will tell. It took a long time for the penny to drop that we had made a terrible mistake in walking out of the Messina conference.

I accept that the Government are certainly right to say that our exclusion is not an imminent threat. So little is going on that there is not much risk of our excluding ourselves by way of institutional or constitutional developments. But as time passes, the risk that our self-exclusion will be damaging increases. In nature, any organism that does not change and renew itself is by definition dead. The Government are making a virtue of rigidity. The case for flexibility will become more evident over time. New challenges will arise. The European Union will want to change itself in some ways-I cannot predict what they will be; none of us can. We should not rule out the possibility that we might want a change and that, as with the Single European Act, we might on occasion want to say yes.

This debate, I accept, is a bit academic now because of the coalition's decision that nothing which could trigger a referendum will be done in this Parliament. Since the provisions of the Bill that we are passing are otiose until after the next election, it is an academic issue. But it is an issue that we should come back to after the next election; it is an issue where regular reassessments of the costs and benefits of the position that we have put ourselves in would be appropriate.

That is the national interest case for the amendment. It is the softest conceivable sunset clause, because the subsequent sunrise is so simple to effect. It is appropriate because the Bill is constitutionally innovative, affecting

15 Jun 2011 : Column 811

the sovereignty of Parliament in at least two rather serious ways. It would permit regular reassessment of whether rigidity is working or whether the national interest would be better served by avoiding self-exclusion from key debates and future developments. I beg to move.

Lord Taverne: My Lords, I want to look, as the noble Lord, Lord Kerr, has done, at the constitutional implications of the Bill, which should concern all Members of the House irrespective of their views on Europe.

The Constitution Committee has recommended a very important principle; namely, that referendums should be confined to changes of fundamental constitutional importance. If that principle is respected and strictly observed, such a referendum may not seriously prejudice parliamentary government as we know it. But this Bill as it stands drives a coach and horses through that principle.

There is no dispute about a referendum on the euro, or on joining a common European army or a common European foreign policy. But how can it be argued that the 56 possible changes that would trigger a referendum under this Bill are fundamentally constitutional? The noble Lord, Lord Howell, has several times argued that these items are all important. Well, they may well be important. Lots of minor changes may be important, but that does not make them fundamental constitutional changes.

If there is a European public prosecutor's office, it will have an important role in dealing with certain kinds of European financial crime. But if we decide to participate in that office, will it fundamentally change the British constitution? Does the noble Lord seriously argue that? Of course it would not. Are changes in the way we vote on the appointment of an Advocate-General or on the protocol on the excessive deficit procedure a fundamental change in the British constitution? Of course they are not.

5.15 pm

In the past, I have congratulated the noble Lord, Lord Howell, on the eloquent and ingenious way in which he has defended the indefensible, but this is Alice in Wonderland stuff. We are assured that there will be no referendum in this Parliament and the noble Lord, Lord Kerr, stated the reason why. But if this Bill passes into law as it stands, the principle of strict limitation on the use of referendums to major constitutional changes will effectively be abandoned because it will have been established in a major Act of Parliament-or, as the noble and learned Lord, Lord Mackay, described it, a singular and central Act of Parliament-that a referendum is justified because an issue is important even if it has nothing to do with the constitution and also because it is alleged, without any reliable evidence, that people want a referendum and the will of the people must prevail.

If importance is the criterion and if what the people want is a criterion, why restrict referendums to the 56 changes to which it applies in this Bill? If you ask people whether they want a voice in National Health Service reform, the answer will be yes, so why not hold a referendum? There could be a referendum even after

15 Jun 2011 : Column 812

an Act of Parliament has approved the changes. What about the police reforms or welfare reforms? They are far more important to the ordinary individual than the European public prosecutor's office. Why should the people not have a say? Why not have a referendum on the Government's policy for deficit reduction, something of basic importance to our welfare? Of course, when you ask people whether they want to have a say, they say yes.

It has been argued time after time-

Lord Lamont of Lerwick: Is not one difference between having a referendum on an issue such as the National Health Service or local government reorganisation and a transfer of power and competence from the UK to the EU that in the case of the latter it is almost irreversible? It is extremely difficult to reverse.

Lord Taverne: The noble Lord has made a point which on the face of it is plausible. It very much ties up with the argument put by the Front Bench that the case of transfer of power in Europe is different because there is a special problem about British trust in the European Union, which can be restored only by giving people a say. Then by some extraordinary leap of logic, it is suggested that they should have a say on issues such as appointments to the European Court of Justice or the protocol on the excessive deficit procedure, because that would apparently restore trust-because in the pubs they talk of nothing else.

As the noble Lord, Lord Liddle, revealed in Monday's debate, the European Union is not the only body that has lost people's trust. Parliament is distrusted even more than Brussels-by 66 per cent, he revealed, as compared with only 64 per cent in the case of Brussels. The Government are mistrusted by 67 per cent. What is the answer to this mistrust of Parliament and Government? According to the Government's logic, the answer is more and more referendums-more power to the people. Who are the most mistrusted of all by miles, by 82 per cent? The political parties are. What should they do? Obviously, the answer is to promise more and more referendums in their election manifestos because people would have more say and, as Rousseau preached, the will of the people must prevail. I am amazed that speech after speech from Conservative supporters of the Bill echoed the cry of Rousseau; the inspiration of Robespierre and the Committee of Public Safety. They abandoned the philosophy of John Locke, one of the architects of parliamentary government, who also inspired the founders of the American constitution-and, of course, goodbye Edmund Burke.

The noble Lord, Lord Howell, and others have told us that we will not have referendums in this Parliament. If there is a referendum in a future Parliament it will not be a separate referendum on each individual item in the list of the 56 but on a whole batch of changes together. We will be given a choice of saying yes or no, in a single vote, to a licorice allsorts collection, including perhaps the decision on a new Advocate-General, on new tasks relating to prudential supervision by the European Central Bank, on a multiannual financial framework and so forth, as if any such choice of one yes or no vote to cover the lot could possibly make any sense.

15 Jun 2011 : Column 813

The noble Lord, Lord Howell, said that it will be no different from voting for party manifestos in elections with their long list of promises. Personally, I do not subscribe to the general belief in the sanctity of the manifesto mandate. Parties should make fewer promises and grade their commitments at election, with some as aspirations and others as commitments that they can safely undertake irrespective of changed conditions. Manifestos are too detailed and they do not allow for events. As Macmillan said, "Events, dear boy, events", affect you.

At least manifestos relate to issues with which voters are familiar. Nothing could be more remote from their experience of everyday concerns than most of the items in the list of 56 possible referendums in the Bill. Essentially, the vote at elections is for something that people understand: choosing a new Government. The analogy of the noble Lord, Lord Howell, does not stand up.

The Bill is highly dangerous for two reasons. First, as the noble Lord, Lord Kerr, and others with great experience of European negotiations have argued, it may lead to immobility and sclerosis on many occasions when what we need above all is flexibility. Just as serious-I would argue even more so-are the crucial constitutional issues in the Bill that undermine the system of parliamentary government and are a major move towards government by plebiscite, California-style.

Some of the Bill's supporters seem positively to welcome this. With others, it seems that the hostility of Eurosceptics to Brussels is so strong that it outweighs concern for parliamentary government, which has served this country so well. I hope that some of them will recognise that our system of parliamentary government matters even more.

Lord Clinton-Davis: Why have parliamentarians at all?

Lord Taverne: Presumably, not everything will be put to a referendum. As has been said, a future Parliament can repeal the Bill as an Act, but once an Act that gives rights to people to be consulted in a referendum has become entrenched, it is much more difficult to take those rights away than not to have provided the plebiscite in the first place. I echo the question of the noble Lord, Lord Kerr: is there any case in which a Government have said in a Bill, "We are not legislating for this Parliament. The referendum lock will never be triggered in this Parliament. We are legislating not to restrict our own actions but those of a future Parliament"? We are going to restrict the decisions which they might wish to take. I believe that that in itself is, as Professor Vernon Bogdanor, an eminent constitutional expert, has declared, fundamentally unconstitutional.

I add to those who are worried about the coalition agreement that nothing in that is infringed by the amendment. The amendment does not restrict this Parliament, to which the coalition agreement obtains. The coalition agreement is not for future Parliaments. Who knows what the coalition agreement for the next Parliament will be? Who knows who will win the election or who the coalition partners might be? As

15 Jun 2011 : Column 814

the amendment says, very well, let the Government have this Bill-probably mainly to appease their Eurosceptics-but for this Parliament only.

Lord Risby: My Lords, the whole House will recognise the magnificent work over many years that, as a great public servant, the noble Lord, Lord Kerr, has done for this country but at the heart of the amendment is the fact that he dislikes the Bill in its entirety. It may also be fair to say that his idea of a sunset clause is the very passionate hope that the sun will never rise on it again. I see him smiling.

The whole point about this Bill is that it is meant to provide an enduring framework or umbrella under which future important EU decisions can be made. It comes back to this fundamental question, which is one of trust. People need to feel that they have a longer term guarantee of that sense of ownership of these procedures if we are to give away powers to the European Union. That is simply at the heart of this Bill. A sunset clause would give a limited time frame-providing perhaps for a time when we do not expect a referendum, or taking that right away when there might be a treaty change. That is the possible danger. But I might use the analogy of saying to the noble Lord, "Here is £5, but you can spend it only between four o'clock and six o'clock in the afternoon, otherwise I am going to take it back". That is the essence of what this is all about.

We all want to build trust, which has been absent in the relationship between the people of Britain, Governments and the European Union. As we have observed already in our debates and discussions, the Laeken treaty, which was meant to rebuild that trust, following through to the Lisbon treaty, has certainly failed to do that, and we are seeing the consequences right across the European Union. We do not want a future Government, who are to re-engage people, to be able to renege on a promise. This Bill does not seek to bind a future Government-that certainly could not be done anyway-but it binds a Government politically to ensure that the people of this country are involved. That is the key and heart of this particular legislation.

A sunset clause can be appropriate in certain circumstances. Most of your Lordships will agree that the Counter-Terrorism Bill was a case in point. There was perhaps, arguably, a temporary situation that had to be dealt with, although I certainly did not agree with it, and then our traditional liberal traditions needed to be returned to in due course after what some people regarded as an exceptional situation. But in practice this amendment would return ministerial discretion to decide whether to revive Part 1, which includes the whole issue of the referendum and parliamentary control provisions. There is a risk that a Government might revive the Bill only if they were confident that there was no chance of treaty change during that Parliament. Of course, should this Bill become an Act of Parliament, which I certainly hope it does, it could be repealed, as the noble Lord said. But it should be repealed on the same mechanism of equal importance as its introduction if a repeal is going to take place. In future, the Government will have to come back and explain themselves about major EU decisions, which is essentially what the Bill demands.

15 Jun 2011 : Column 815

If the noble Lord's amendment were to improve the Bill, we might consider it in a rather more dispassionate way. But what this is about really is taking the heart out of the Bill-and I am confident that the noble Lord knows that too well.

Lord Lester of Herne Hill: My Lords, one benefit of our largely unwritten constitution is the flexibility that our system gives us; one defect is that we do not have a very consistent set of principles to guide us. We tend to be pragmatic. My experience as a blow-in or holiday resident for 38 years in the Republic of Ireland and my experience of their system makes me attracted to one of the arguments in the speech in support of the amendment by the noble Lord, Lord Kerr. It has convinced me that any attempt in this Bill to introduce inflexibility would be a grave mistake. I also think that referenda on complicated and highly technical matters are not a very good idea.

The Irish constitution has been interpreted by a narrow majority of the Supreme Court of Ireland as requiring referenda in quite a number of circumstances. When the treaty of Lisbon was put out for referendum the Irish Government produced an information pack which was completely incomprehensible even to lawyers, since it referred to bits of that treaty by reference to article numbers, paragraphs and specific legislative proposals. They left an information pack in each post office. I took the trouble to try to understand it and, as I say, I found the information given to the citizens of the Irish Republic to be so opaque that I certainly could not understand it.

5.30 pm

Essentially, what this Bill is seeking to do is to treat itself as a constitutional Bill that will pre-empt future Parliaments, unless they exercise their sovereign powers to repeal it. In other words, it seeks to act in a quasi-constitutional way. It will therefore inevitably introduce rigidity where at the moment we have maximum flexibility, and do so in the name of the democratic imperative. I do not find that persuasive when one sees the range of issues that are apparently to be subject to future referenda. That will not help the interests of the United Kingdom in negotiating within the corridors of power in Brussels and it will not enlighten our citizens, were we to have referenda on these subjects. Since it is not proposed that the powers in this Bill should be exercised in the lifetime of this Parliament, I believe that sunset and sunrise are appropriate.

Lord Lang of Monkton: My Lords, nobody is better suited than the noble Lord, Lord Kerr, to inject into a debate on a European-related matter a degree of intricacy, complexity and subtlety. He did it with great success in a number of earlier debates on this Bill. However, from my point of view this is not a complex issue. This amendment that we are addressing is not about the substance of the Bill as such but about whether the Bill should contain a sunset clause. That seems a much simpler issue, which can be much more directly addressed. We need to ask only what the objectives of the proponents of this amendment might be and what their motive might be for the future of the Bill.

15 Jun 2011 : Column 816

The Bill is essentially about national sovereignty. It is about the protection of our national political security and about long-term national confidence. It is an attempt to halt the endless drift of sovereignty, salami-sliced over the years, with the erosion of our long-term security and constitutional stability by that drift towards the European Union. All earlier such commitments to restrain that kind of drift seem to have failed. I remember that at one time the watchword was "subsidiarity" and we all cheered subsidiarity around the time of the Maastricht treaty. It was going to make life so much easier and more direct, and stop the endless flow. Of course, it did not and has not and that is one more attempt that has failed.

However, this Bill is for the long term. It is an attempt to stop the rot. No Parliament can bind its successor; that seems to be the simple answer to those who believe that a sunset clause is necessary in the Bill. They say that it undermines our constitutional sovereignty. It does not because Parliament has that degree of sovereignty and could reform, repeal or change this Bill at a later date. Yet in European matters a strand of sovereignty, once lost, tends to prove irrecoverable. Without the certainty of an established position by an Act of Parliament, that trend could resurface and continue. Against that background, a sunset clause would inject uncertainty and short-termism. It would undermine the purpose of the Bill, which is perhaps the objective of the movers of the amendment. This House is here to revise and improve legislation, not to destroy the objective of that legislation. For that reason, the amendment should be opposed.

Lord Jopling: My Lords, I follow what my noble friend Lord Lang said, but I come to rather a different conclusion. Some of the speeches that we have heard on the amendment moved by the noble Lord, Lord Kerr, have reverted in some ways to Second Reading speeches. I do not intend to move in that direction. I take a very simple approach to this amendment. I have now worked in this building for almost 47 years. Throughout my entire political life I have had the greatest loathing for referenda in principle. I dislike them intensely. I have always taken the view that the more referenda you have, the more people will say, "If you have these, I don't see much point in being a Member of either the House of Commons or the House of Lords". I therefore start with a dislike of referenda.

I have reluctantly supported the Bill in all the Divisions that have taken place on it. However, the point I want to make is the one to which my noble friend Lord Lang has just referred. Very simply, at the beginning of each Parliament, why should that Parliament not decide for itself whether it wants to revive this legislation? The amendment suggests that it should be done in a simple way by order rather than by imposing on Governments all the rigmarole of primary legislation. I cannot see why it would be necessary, given the sunset clause, to impose that on a new Parliament.

As many of my friends on both sides of the House will know, years ago I was a business manager in the other place. Early in a new Parliament, before new Bills are ready, there is plenty of time to set aside a day for deciding whether it is desirable to reactivate the European Union Bill. This would mean that at the

15 Jun 2011 : Column 817

beginning of each Parliament, following the result of the general election, a decision could be taken that reflected the views of the public. That is what Parliament should be doing and the way that Members of Parliament should operate. I therefore have every intention of supporting the amendment of the noble Lord, Lord Kerr.

Lord Richard: My Lords, the whole Bill has had some sense of unreality about it since it started. The more that one looks at it, the clearer one issue becomes. Whatever we do with the Bill, it will not operate in the lifetime of this Parliament. I have never come across a situation in which, in the first year of a new Government, legislation is introduced that is designed to affect not the current Government but the next one. We have had assurances from the Government that none of the issues that will provoke a referendum will happen in this Parliament because the Government will make sure that they do not. What on earth are we playing at? Shall we seriously sit down and produce the details of a major constitutional change against the background of a Government saying, "Don't bother about it too much, although it may be a major constitutional change", which moving from a parliamentary system to one of referenda clearly is? The Government are saying to us all, "It's not going to happen. It will happen only in the next Parliament, but we shall legislate now so that it is on the statute book when the next Government come in". Frankly, that is unreal and unfair and should be resisted.

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, the noble Lord speaks with great authority and I listen closely to what he says. However, he has asserted several times that the Bill will not operate in this Parliament. It will. A treaty is in the pipeline, with which we will deal next summer-the European stability mechanism treaty. Admittedly, it is exempt under Clause 4(4), but the operation of the Bill applies as much to that treaty change as it may to others. It is not the desire of the coalition or of any member state of the European Union to promote new treaties or rid ourselves of more vetoes. The Bill binds from the moment it goes on the statute book. That is the reality.

Lord Richard: Yes, but the Government have assured us time and again during the course of the Bill that there will be no further transfers of powers to Brussels from the United Kingdom and there will be no change in the issues which can be dealt with by majority voting as opposed to those which at present require unanimity. None of that is going to happen in this Parliament, yet the Bill is drawn in such a way that legislation is now being passed in relation to those matters. I do not think that makes any sense at all. If this is a parliamentary system of government, as it is supposed to be, surely it is for the next Parliament to decide whether it wishes this structure to continue. If we go on with this legislation, it seems to me only right that we should have some kind of sunset clause which demands that the next Government, when they come in, have the opportunity to decide whether they wish to go on with this. In those circumstances, I strongly support the amendment.

15 Jun 2011 : Column 818

Baroness Falkner of Margravine: My Lords, after three long months we are still divided on the single unresolved question of this Bill-whether the proposals here will impact negatively on the UK's ability to pursue its national interest in negotiations in the EU and whether by asking the people of this country to sanction new changes in the EU we will garner greater popular support for those changes here at home. It is undoubtedly true that the Bill constitutes a significant change to the way we do business in Brussels. What is unclear, however, is whether it will strengthen our hand in negotiations in some cases, as our partners will know that the bar they have to cross over our red lines is significantly higher, or whether, because they know of the high bar, they will find other ways to circumvent our hurdles. Both may well happen, depending on the circumstances.

I wish to set out the reasons why we should oppose Amendment 35 while holding those noble Lords who have attached their names to it in great respect. Amendment 35 seeks to let the Bill expire at the end of this Parliament-that is, in 2015. In subsequent Parliaments, if the Government of the day wish, they can revive the Bill through affirmative resolution and it will sunset at the end of that subsequent Parliament, to be revived again in the next one, and so on. First and foremost, the amendment proposes a series of sunrises and sunsets ad infinitum. If the concern of noble Lords in tabling it is to reduce uncertainty about the UK's negotiating position, I assure them that it would do the very opposite for those periods when the Bill has expired but has not yet been renewed. Moreover, it goes against the grain of building trust between the people and politicians as the question before every single general election will revolve around whether or not we are to revive the Bill. Rather than increasing trust and confidence in the ability of UK Ministers to bat for Britain, it will raise endless questions before elections about the composition of the team, the batting order and, indeed, about the implications of who might win the toss.

I turn to the period between sunset and sunrise-the hours of darkness, as we normally know them. It might take more than three months to revive the Bill. If we take the previous Parliament as an example, I ask noble Lords to imagine that the Act is already in place and this amendment forms part of it. The previous Parliament was dissolved on 12 April 2010, the general election occurred on 6 May and the Queen's Speech was on 25 May. Subsection (4) of the amendment states that the revival must take the form of a statutory instrument using affirmative resolution with approval in both Houses of Parliament. Last year the Joint Committee on Statutory Instruments first sat after the election on 23 June and would then have considered orders, including, let us imagine, those to renew this Act, laid them on the Order Paper, and approval Motions would have been timetabled in both Houses, would possibly have been defeated, and then possibly resubmitted.

Lest noble Lords lose the drift of my remarks, I am trying to illustrate that between the sunset and sunrise, if the Bill had been in place, a period of potentially three months or more would have passed. If the Summer Recess had come in the way, the period would have

15 Jun 2011 : Column 819

been possibly five or six months. The Minister in Brussels who would supposedly have been negotiating on our behalf would effectively have been operating without the security of knowing the legal position back home on the requirements for the agreement.

I know that noble Lords who support the amendment would say that the fallback position during that period would have been the European Union (Amendment) Act 2008. However, what are our European partners meant to do-carry around several UK Acts of Parliament to see which one applies at a particular time of the electoral cycle? At the beginning of every Parliament, parliamentary time would need to be expended in reviving the Bill. It would make our negotiations in Brussels even more cumbersome, because during that period Ministers would be in a state of flux, not knowing whether they were to operate under one system or another.

Finally, I turn to the point made by the noble Lords, Lord Kerr and Lord Richard, and others, that the Bill is intended solely to influence future Parliaments. It is not so designed. While it is true that the coalition agreement does not envisage handing over powers and competences during this Parliament, the coalition agreement is not the law of the land today. It is this Bill when it becomes an Act of Parliament that will enshrine those provisions in law. I urge noble Lords to oppose the amendment.

5.45 pm

Lord Brittan of Spennithorne: My Lords, I support the amendment. I start by saying that I am an unashamed opponent of referenda and always have been. It is not therefore surprising that anything that limits the operation of referenda inherently attracts me, as the amendment does. It is entirely reasonable that this piece of legislation, if it is to be passed, should be regarded as being wholly exceptional-which it is constitutionally-because it extends the range of obligatory referenda on a massive scale and fundamentally alters the balance of the constitution in that important respect. The Bill should be regarded, if it has to be passed, as a provisional experiment. I would regard it as a rather dangerous experiment that is subversive of the normal principles of parliamentary government.

If it is to be regarded as a dangerous experiment that political exigencies require-although I do not share that view-it is perfectly reasonable that one should mitigate its consequences by providing within the Bill for a rapid and effective procedure for terminating the mischief as soon as possible. It is for that reason that I support the amendment.

Lord Hamilton of Epsom: My noble friend says that he is fundamentally against referenda. Does that mean he is against the referendum that confirmed our membership of the European Union? Should there also be no referendum if we were to join the single currency?

Lord Brittan of Spennithorne: I am fundamentally against referenda. I would not have favoured the holding of that referendum, but that does not in any way mean that I do not accept its result, especially as it was one that I politically favoured.

15 Jun 2011 : Column 820

Lord Lamont of Lerwick: My Lords, when the noble Lord, Lord Kerr, spoke in the very first debate on the first amendment in Committee-or perhaps it was on Second Reading-he said that he was like a minor character in Shakespeare referred to in Act 1, Scene 1, and never heard of again. It has, however, been to the benefit of the entire House and the Committee that instead he has been bestride the stage like a colossus. Great as my respect for the noble Lord is, I do not feel that a sunset clause on this Bill is any more appropriate than a sunset clause on a local government reorganisation, a National Health Service reorganisation, or anything else.

However, there has always been an argument for attaching a sunset clause or a sunset condition to some EU legislation with great advantage, because so much EU legislation is irreversible. That is a point that I have made before, but I repeat it simply because I think that that is the problem of connection between the public, Parliament and the EU, and one of the reasons why there is scepticism and mistrust about the European Union.

Lord Davies of Stamford: Is the great distinction about referenda which the noble Lord is making-he has made it twice this afternoon-whether a decision once taken becomes irreversible, and that in that category there should be a referendum; and that in other categories there should not? If so, why will there not be a referendum on reform of the House of Lords? Surely that will in practice be an irreversible decision. Once you have a democratically elected legislative Chamber, you can hardly go back on that.

Lord Lamont of Lerwick: I have not heard that there is not going to be a referendum on legislation for the House of Lords; I have heard many people speculating that amendments may be moved. We shall see, and I shall see how I vote on the interesting suggestion made by the noble Lord.

It has been said that this debate has at times been something of a Second Reading debate on many of the amendments. That is because the Bill has been misrepresented in several of the debates in an exaggerated way. The noble Lord, Lord Howell, has made it clear again and again that we are not going to get a plethora of referendums, for several reasons. First, changes in competences and powers tend to come in packages, in treaties. Secondly, we have been assured many times that we will not have more great treaties. The fact that certain vetoes and certain competences remain after we have had Lisbon, Nice and Maastricht shows that there are very good reasons why national Governments wish to retain them. No Government are going to invest a huge amount of political capital in pursuing some relatively minor matter. That is not how these things operate; they tend to come in packages.

People talk about these issues being trivial. We are talking about competences and powers. We are talking about vetoes, for example. The noble Lord, Lord Kerr, referred to the amendment very well proposed last week by the noble Lord, Lord Davies-I think it was Amendment 22A-about exempting defence procurement from the requirements of the internal market. He said that that is something that could advantage the country,

15 Jun 2011 : Column 821

and surely we ought to have the flexibility to move to QMV. Actually, I think it is important to be able to buy certain types of defence equipment and certain weapons, or produce them where you want to, and not have them subject to the full rigour of the market. In the previous Government, Des Browne himself-now the noble Lord, Lord Browne of Ladyton-said that he regarded that as a vital power to be retained by the British Government. Judging by the previous Government and what the former Secretary of State said, that is an extremely important power for this country to retain.

The noble Lord said the Bill was otiose because the Government were not intending to hold referenda in this Parliament. As the noble Lord, Lord Howell, said, the Bill will apply in this Parliament. It is not otiose any more than the Act giving effect to the Maastricht treaty. It had an opt-in for Britain to opt into the euro, but it was made very clear that we were not going to opt into the euro in the next Parliament. That did not make it otiose.

Then we have heard the argument that we are legislating for future Parliaments, but of course it is perfectly open to any future Government to repeal the Bill. With great respect to my noble friend Lord Jopling, we would be getting the worst of all worlds if we enacted the Bill but then said that the whole floodgates could be opened again without any specific intention at the beginning of each Parliament. I can think of nothing that would inflame public opinion more and get the tabloid press-about which we have heard a lot in this debate-going again than if, without any specific intention, a Government decided at the beginning of each Parliament to open the floodgates to the reversal of this legislation. We are told that it will lead to inflexibility in negotiations. However, other countries have procedures that take a long time and they have certain provisions on which they have to hold referenda. We have seen how it takes time for some of these treaties to be legislated for in other countries. Therefore, I do not think that the position of Britain's negotiators would be any different from that of other countries.

What has been confusing in these debates is that this legislation is about competence and powers, whereas people try to make it about issues and policies. Nice, Lisbon and Maastricht have all given a tremendous amount of power and transferred sovereignty to the European Union. What in terms of power and competence do the Opposition and those opposed to the Bill think the European Union needs? What is the issue? What is the European Union not able to deal with at the moment? We have had many changes in recent years. The United States constitution has had only 27 amendments since coming into existence but we produce endless changes. The European Charter of Fundamental Rights was written in very dense language and was much longer than the Universal Declaration of Human Rights or the charter of the United Nations.

The noble Lords, Lord Kerr and Lord Hannay, have certainly enlightened our debates with their enormous expertise and very abstruse knowledge of difficult and complex issues. However, when I listened to them I was reminded of what Winston Churchill said when he became Chancellor of the Exchequer. He came out of the Treasury and said, "These chaps speak Persian.

15 Jun 2011 : Column 822

I prefer generals and admirals". Of course, the contributions of the noble Lords, Lord Hannay and Lord Kerr, have been extremely important and enlightening in these debates, but I think that with some of these abstruse issues-the language used and so on-there is a real problem of connection between ordinary people and the European Union.

What has not been recognised enough by opponents of the Bill is the tremendous crisis that is taking place in Europe over the European Union. We have seen dramatic changes in public opinion on European integration in countries such as Finland. However, I would particularly single out what has happened in Holland. Throughout my life, Holland has been the most pro EU-integrationist country in Europe; now, it is the most obstructionist. It is strongly opposed to the bailouts of Greece, Ireland and Portugal and it wants to dismantle the Schengen provisions as well. The Bill draws a red line to say that in this Parliament, and beyond if this Government are re-elected, there will not be a transfer of powers. It seems to me to be sensible legislation and we should be determined to carry it forward. I think that the red lines we are drawing will go some way to restore some trust in the European Union.

Lord Grenfell: My Lords, after so many Second Reading speeches at a Report stage, it may well be sunset before we reach a decision on this amendment. I have only one thing to say following the comments of the noble Lord, Lord Lamont. My experience in this place has been that your Lordships' House has always been quite reluctant to call for sunset clauses-we do not do so lightly. They are a very important instrument and one has to treat them with great respect and care. The noble Lord, Lord Lamont, asked: if we have one on this Bill, why not have one on a number of other pieces of domestic legislation? I agree with him. I would not want to see a sunset clause on those pieces of legislation that he mentioned. However, there is a big difference between those and this piece of legislation.

This Bill has huge constitutional implications, but it is a step in the dark at the moment for us because we do not quite know what they will be. As it is of such huge constitutional importance, I feel that there should be the safeguard of a sunset clause because the next Government will be in an experimental stage of having to see how this legislation will be implemented. I do not think you can group this piece of legislation with other kinds of legislation and say that if you want a sunset clause on this, you should have it on the rest. This is a special case. It needs to have a sunset clause in order to be sure that when we step out into the darkness-it will be dark when the legislation first starts to have an impact-we can, if necessary, draw back from the brink.

6 pm

Lord Waddington: My Lords, as usual, my noble friend Lady Falkner hit the nail absolutely on the head. One effect of the amendment would be that at every general election all parties would be asked to pledge themselves to revive the Act. That is the effect of this amendment. They will so pledge, at their peril, because, make no mistake about it, this Bill will be

15 Jun 2011 : Column 823

popular with the public as the public want more say over what is happening in Europe. The public are fed up with Parliament ceding more and more powers to Europe without any consent from the people whatever.

The only difficulty is that there will be a period at the beginning of each Parliament when the Act will not operate. That could cause difficulties and it will certainly not increase confidence in British Governments' handling of European matters. I would have thought that that was one of the most important matters with which we are concerned in this legislation. We want to increase confidence and not destroy it. I cannot imagine anything more likely to destroy confidence than having a period at the beginning of each Parliament when the safeguard for the British people did not operate. In practice, of course, it will not happen because every single party, as a matter of self-preservation, will say, "Of course we will renew the Act".

Baroness Williams of Crosby: My Lords, I would like to follow the noble Lord, Lord Grenfell, because he has been correct in what he indicated. In debates in this House, we have had a great deal of speculation because we live in a world where we cannot be sure what the future will look like. Increasingly, that is the kind of world in which we live. The noble Lord, Lord Grenfell, who has profound experience, having been, for many years, the chairman of the European scrutiny committee, is absolutely correct in what he says. We are passing legislation which is likely to be tested by coming events in future years and yet we are doing it without giving ourselves any provision for insisting on a review of what we do over the next decade or so.

I shall mention one or two of the speculations that we have discussed in these debates and not agreed upon. One is the proposition which has been advanced on several occasions by the noble Lords, Lord Kerr and Lord Hannay, which is about the possibility that our representatives in Brussels ministerial meetings will find it extremely difficult to support even those things that they profoundly and sincerely believe are in the British national interest because of a fear of setting off a referendum. The noble Lord, Lord Kerr, may be right in that and he may be wrong, but the only way to find that out is by experience over the next few years.

Secondly, there has been a great deal of speculation about whether there will be major new issues that might require an amendment to the treaties. Curiously, the noble Lord, Lord Howell of Guildford, hinted at one such when he talked about the possible major revisions of the European Union Stability Pact. Of course, that applies only to eurozone countries, but anyone who believes that it will have no implications for the United Kingdom must be living in a world a very long way away from the global financial world of which we are a part today.

We are talking about speculations, but that does not mean that we should not pass Acts of Parliament; it means that the case for looking at them and requiring them to be looked at is extraordinarily strong, and stronger than the case for almost any other kind of legislation that one can think of. I differ a little from the noble Lord, Lord Lamont, much as I respect him, because I can think of quite a few bits of legislation, with domestic implications, that would have gained

15 Jun 2011 : Column 824

from a sunset clause. There are one or two pieces of legislation all of us today would be only too happy to have seen off the statute book if there had been an opportunity to revisit them, which there so rarely is.

My next point is with regard to the coalition agreement. On this, I address specifically my friends in the Liberal Democrat and Conservative parties. The coalition agreement, in its wisdom, made it absolutely clear that we should be willing to accept a referendum lock on major amendments to treaties. That is what it says. The major amendments to treaties that we talked about in these meetings, and here in debates in the House of Lords, have ranged from changes to the Schengen agreement, changes to the original euro agreement, and changes that might introduce a common foreign policy or a common defence policy. I freely admit that in this Chamber, we are all agreed-I congratulate the Government on persuading us on this-that there should indeed be a referendum lock on this limited number of crucial issues.

It is also clear that many Members of this Chamber are profoundly concerned, as my noble friend, Lord Taverne, pointed out, about the thought that that group of very tightly disciplined and described referenda might drift into a general practice of referenda of a kind that will destroy parliamentary government; to put it in a non-abstruse phrase: adding a kind of Berlusconi sauce to the solid pasta of British parliamentary practice. I, for one, would be most reluctant to go along that track. My noble friend Lady Falkner is quite right to draw our attention to that, but at no point does the coalition agreement come to terms with the idea that now we will be imposing every change in the passerelles to a referendum-not just an Act of Parliament but a referendum. No one in the coalition is obliged to support that because it is not part of what was agreed in that original agreement.

My third and final point is precisely the one made by the noble Lord, Lord Waddington, and my noble friend Lady Falkner and I take exactly the opposite view. It seems to me that one of the great advantages of proposing that there should be a review at the beginning of each Parliament is exactly that that will drive the debate back in the general election itself. What more democratic a structure could one choose to find, one where people would be likely to vote, likely to show an interest, likely to debate the issues before them in television, radio and in the street, than a general election? There is the fact that we would have to agree this legislation again at the beginning of each Parliament, in its very simple and short way, as has been pointed out-the statutory instrument agreed by both Houses. It would take no more than 24 hours, if one wanted to do it that way. The essential point is that no more democratic a process could be found than a general election, in which we should reach a decision on whether we want to continue with this legislation. That is far better than suddenly plucking a referendum out of the air at some point in the Parliament, when most people would be interested in other things and its salience would be low.

So on the grounds of the speculative basis on which we are passing this legislation, of extension of referenda far beyond what our Parliament would want to see

15 Jun 2011 : Column 825

and of forcing the general elections to take on a major debate of our relationship with Europe and all the trust that would flow from an election result, I believe that the case for a sunrise and sunshine amendment-I say sunshine deliberately-could not be better argued. I strongly support the amendment in the name of the noble Lord, Lord Kerr, and his colleagues.

Lord Williamson of Horton: My Lords, we have had quite a bit of experience recently of sunset clauses, or proposals for sunset clauses-we may keep that to the back of our minds. This amendment would bring Part 1 and Schedule 1 to the Bill, if enacted, to an end at the end of this Parliament. That gives the Secretary of State the power to provide by order, subject to approval of both Houses of Parliament, that the legislation is revived for a further parliamentary period-and so on until the end of time. I did not use the phrase of the noble Baroness, Lady Falkner, about an endless series of sunsets and sunrises because I reserve that to my wishes for the next 20 years for my personal life.

What is the purpose of the amendment? It is to provide an opportunity to monitor the legislation, to see how it is operated, if at all, and to see public reaction, in particular whether it has succeeded in its principal objective of improving the connection between the public and the work of the European Union. I would be very interested in that. If this legislation goes through, we would like to see an improvement in that connection and the legislation is directed to do that-let us see if it has made progress in that area. If the legislation is judged to have been successful, it is of course a relatively simple matter to continue it for a further period.

This clause does seem appropriate in this Bill, which is a constitutional innovation, switching from Parliament to national referendums the decisions on a list of issues, and for that reason I support Amendment 35.

Lord Pearson of Rannoch: My Lords, I am afraid that this amendment, if accepted, will be seen by the British people as an unambiguous attempt to wreck the Bill, and so I can but advise your Lordships not to accept it. Not for the first time I must ask your Lordships to see and accept that, uniquely on this issue of our EU membership, your Lordships' House is strongly and increasingly out of tune with public opinion. We have even managed to debate for many days a European Union Bill which does not address the two key issues about our membership: the disaster which is the euro and the fact that we avoided it, and whether we want to stay in the European Union at all.

I congratulate the Government and the Foreign Office on managing that feat, but it does not make your Lordships' House any more relevant or popular to the people we are supposed to serve. The British people are not stupid. They are in fact much cleverer, much more patriotic and altogether nobler than their political class. They also work in the real world to earn the salaries to pay the taxes to keep us, the political class, afloat in the style to which we have become accustomed.

Of course the political class does not like referendums. That has been very clearly set out in our debates, and today by the noble Lords, Lord Deben and Lord

15 Jun 2011 : Column 826

Brittan, and by those who have tabled and support this amendment. However, the British people are showing strong signs of wanting more referendums, and on this issue all the latest polls show that something like 84 per cent of the British people want a referendum on our EU membership-in or out-let alone the comparatively minor issues covered by this Bill.

The British people understand that what is happening to the people of Greece, Portugal, Spain, Ireland and other countries is entirely the fault of the discredited project of undemocratic European integration with its attendant euro. It is not just in this country that the public are moving against EU membership and their political class-and, therefore, I might point out, this amendment. I do not suppose your Lordships have noticed the very recent opinion poll in Norway. Norway has moved a long way: according to this poll, 66 per cent are now against EU membership, with only 26 per cent in favour. Opposition to EU membership is highest among people under the age of 30, with 77 per cent against and only 15 per cent in favour. As the noble Lord, Lord Lamont, has reminded us, opinion is moving strongly in France, Germany, Finland, Holland, Austria-in fact, hardly anywhere in Europe is EU membership still popular.

Next Section Back to Table of Contents Lords Hansard Home Page