129: After Clause 2, insert the following new Clause—
Notwithstanding any provision of the European Communities Act 1972 (c. 68), nothing in this Act or in the Treaty of Lisbon shall create an offence of xenophobia under which United Kingdom citizens may be prosecuted in the United Kingdom or elsewhere.”
The noble Lord said: I shall also speak to Amendment No. 130. At the close of our last proceedings on 14 May the Government assured us that the new European Gendarmerie Force would not be used on British soil without the explicit consent of Parliament. The first of these two amendments attempts to make sure that after the EU acquires its own legal personality, and more generally as the EU project proceeds, British citizens will not fall foul of the EU crime of xenophobia for insulting it. We must remember the infamous EU arrest warrant which allows British citizens to be automatically extradited to any EU country purely on the say-so of a local magistrate, to stand trial under an alien system, perhaps after a long time on remand, and to face imprisonment for a list of some 32 crimes, one of which is xenophobia, which is not a crime here.
I fear that the EU’s new acquisition of legal personality confirms that it is well on its way to becoming a state. Indeed, it is hard to think of any attribute of a state which the EU does not already possess, or will not possess if the Lisbon treaty becomes law. It has its own flag and anthem, although they are without legal foundation. It has, or is acquiring, its own president, armed forces, foreign secretary, foreign policy, embassies, supreme court, judicial and criminal systems, police, border and asylum controls, not to mention its currency. If any noble Lord can tell me of an attribute of a state which the EU cannot, with the support of the court, acquire under this treaty, I would be very glad to hear from him.
Those of us who oppose the project of European integration are already often accused of being xenophobes, even in your Lordships’ House by otherwise perfectly civilised noble Lords, such as the noble Lord, Lord Wallace of Saltaire, and others whose blushes I will spare. Is it so far-fetched to think of such an accusation being made by our new masters in Brussels? I fear not.
The second amendment in this group, Amendment No. 130, seeks to prevent the EU levying or harmonising direct tax in the EU, so it also looks some way into the future, although the French are already saying they want to use their forthcoming EU presidency to harmonise corporation tax. The treaties are silent on direct tax, although they control VAT and indirect tax. That has not stopped the Commission and the Court imaginatively invading corporation tax based on other clauses in the treaty, particularly those covering the freedom of establishment of businesses throughout the EU. The Court has decided that UK companies, such as Marks & Spencer, Cadbury Schweppes and many others, are free to arrange their losses and tax in other EU countries in ways previously barred by the Treasury, which may mean the Treasury now owes a number of British companies quite a lot of money. It would be helpful if the Minister could bring your Lordships up to date with what the latest position is here. How much money have these decisions of the Luxembourg court cost Her Majesty’s Treasury?
There are also in the treaty all the provisions controlling the single market. I find it hard to see why, where the European Union wants to control direct tax, it could not use the single market provisions of the treaty to do so. Of course, if the Luxembourg court were to agree with that, there would not be anything we could do about it. I am advised that in Brussels they are thinking of using the social chapters of the treaty to introduce direct tax. Perhaps the Minister would like to comment on that, no doubt denying it strongly.
The longer-term necessity for the EU to harmonise and control national taxation lies deeper. The EU already has its own currency, as I mentioned, but it has no federal budget to speak of, and no currency zone in history has survived for long without the power to tax and distribute from its richer areas to poorer. One thinks here of the distributions from south to north in the United Kingdom and the federal budget in the United States. One remembers, too, the distributions from north to south in Italy and west to east in Germany, which the single currency with its single interest rate does not facilitate. We are already seeing strains in those and other euro economies. The euro was never an economic project. It was designed as the cement to hold the emerging megastate together, but it will probably need a substantial federal budget to do so as time goes on. This amendment seeks to warn your Lordships about this position and to prevent it happening. I beg to move.
I would like to make a small contribution on the amendments tabled by the noble Lord, Lord Pearson, who I still regard as my noble friend. As noble Lords will probably be aware, I have not yet spoken during the proceedings on this Bill. It has been in the very capable hands of my noble friends Lord Howell and Lord Hunt. I have, of course, been following the progress of the Bill, if that is the correct word, and I feel honoured to be part of the Front Bench for the purposes of this evening. I shall not be expressing any views on Amendment No. 129 on xenophobia. I could not, however, let Amendment No. 130 on taxation pass without a brief comment. I have in the past spoken in your Lordships' House about the role of the EU, in particular the European Court of Justice, in relation to taxation, and that will be the focus of my remarks.
The founding treaty and all subsequent amendments seem clear: direct taxation is not an EU competence and ought to be the sole responsibility of member states. However, it is a fact that the European Court of Justice has been slowly but surely building a common European tax law under the guise, as the noble Lord, Lord Pearson, has explained, of freedom of establishment. This is a relatively recent phenomenon. There was only one direct tax case decided by the ECJ in the 1960s, none in the 1970s, four in the 1980s, 40 in the 1990s, but well over 60 by halfway through this decade. There is also a big tail of cases still to be decided. This is thus a problem that has emerged on this Government’s watch, yet they seem set on ignoring it.
I shall not weary the Committee with the cases that have been decided by the ECJ. They do not all involve the UK’s taxation system, but they have involved some of the largest companies within the UK: Cadbury Schweppes, British American Tobacco, Marks & Spencer and ICI. For these companies, it makes sound commercial sense to challenge UK tax law if they perceive advantage in so doing. I do not blame them in any degree, because they must try to do the best for their shareholders. If that involves using an EU weapon to challenge the basis of taxation set by our Parliament, it is obvious that they must do so.
These cases have created great uncertainty about the UK’s tax code. That is harmful in the context of a tax code which is the longest in the world and among the most complex. From the perspective of the UK Treasury, these cases, often decided against the Government, have created uncertainty about future tax receipts and involved complex Finance Bill provisions to overcome ECJ objections. Many billions of pounds of tax revenues have been, and probably still are, at stake. The noble Lord, Lord Pearson, asked how much decisions have cost. I would add: how much is still at risk?
I have talked about the cases brought by companies, but the Commission, too, can attack member states’ tax regimes. It has expressed a willingness to be “proactive” in this, which is a chilling prospect.
I cannot begin to understand why the Government have not fought strongly against the concept of the ECJ’s ability to overturn what our Parliament decides on tax. It ought to be in the interests of the Government, as the guardian of the UK’s finances, to do so.
It ought also to be in the interests of the Government to preserve the competitiveness of the UK and our ability to differentiate ourselves from the rest of the world, in which I include the rest of the EU. A part of any country’s competitiveness includes tax competitiveness, which is well accepted by all those organisations which draw up international league tables of competitiveness. I hope that there would be no argument in this Chamber that tax competition is good for society as a whole, since it works with the grain of global free markets and against those who try to erect barriers to trade.
Tax competition also provides a healthy check on the Governments’ ability to raise taxes too high. We are seeing the salutary effect of tax competition at the moment, as major UK corporates signal loud and clear to the Government that the UK tax system has gone too far and made the UK an uncompetitive environment for companies which hold significant interests overseas. The Government have taken their eye off the ball of tax competitiveness for the UK. My party, when we return to government, will strive to restore our tax competitiveness. We will need maximum freedoms, including freedoms within the EU, to achieve that.
The noble Lord, Lord Pearson, will appreciate that the picture I have painted requires a more comprehensive set of statutory defences against the incursions of the EU into the tax affairs of the UK than are provided by his amendment. His Amendment No. 130 is useful in ruling out the harmonisation of rates of direct taxation and the imposition of direct taxes, and I support it to that extent. It does not, however, deal with the most damaging problem of the ECJ’s ability to strike down our tax laws and interfere in the structure of our taxes. The amendment does not reinforce our precious freedoms to achieve tax competitiveness in the UK. I wish that his amendment had gone further.
I accept with weary resignation that the pass was sold long ago on indirect taxation, but noble Lords should be under no illusion about the role of the ECJ in relation to VAT. It is far from benign. But that is a topic for another day.
Perhaps I may concentrate on Amendment No. 129. Xenophobia is a feeling, an emotion, like anger, anxiety and fear, to which it has some affiliation. Conversely, it is in the same league as joy, exhilaration and contentment. In other words, it is a thought, not a deed. Democracies have not hitherto had thought crimes on their statute books, nor have authoritarian regimes. Thought crimes are the preserve of totalitarian states. If by any chance some other EU states want, perhaps without realising the full enormity of what they are doing, to copy Stalin, Mao and Hitler in this regard, so be it, but we in this country should not contemplate it for one single moment.
I support both amendments. Before I came into the Chamber, I looked up in the Shorter Oxford English Dictionary the definition of “xenophobia”. Volume 2 defines it as follows:
“A deep antipathy to foreigners or to foreign things”.
That is all. Are we now to be told by the European Union that we must not have an antipathy to something or to some people? Are we not allowed to dislike other people, even if it is in a way that is perhaps a little extreme? This really is going too far.
The noble Lord, Lord Pearson, showed quite clearly in his opening remarks how such a policy could affect us if it were adopted under the rules of the Lisbon treaty. It could very easily enter our law, which would be against everything that this country has stood for over a long period—although, as a result of some of the legislation which has been enacted during the past couple of decades, people now say to themselves, “Oops, I should not have said that”, after saying something which is perhaps not politically correct. We should not tolerate that in a free society. One can understand why people on the Continent—in Germany, Austria, France and places such as that—might need legislation about holocaust denial and xenophobia: they have to assuage their consciences for the wars and murders that have taken place over a long period. We do not happen to have to assuage our consciences in that way. Therefore, we do not need to put people in this country at risk as a result of a law against xenophobia.
As far as taxation is concerned, the Government will of course reply, “We have no intention of imposing or allowing the EU to impose, or have any say in, direct taxation”. Well, ask the European Parliament about that, because it, as I understand it, believes that the institutions of the European Union should have the power to raise direct tax for the financing of the European Union. The matter is on the agenda already. Moreover, many policies now enacted by the European Union have implications for our direct taxation. I do not want to give a great list of them, but the one about which people are very concerned at the moment is the cost of the landfill directive, which directs the Government of this and all other member countries to reduce their amount of landfill by 2016. The result has been impositions by local authorities through bin taxes and so on, which are direct taxes on the people of this country.
I do not want to detain the Committee any longer. But I believe that we have to be on our guard that the taxation which is already dictated by the European Union should not extend any further at all. The noble Baroness from the Opposition Benches listed a number of ways in which, perhaps without our realising what is happening, there could be implications for direct tax. I therefore support these two amendments.
I recall that I made a declaration of interest at the beginning of the Committee stage. I intervene briefly on Amendment No. 129 on xenophobia. I think that I have always been very careful and courteous in my interventions during this long Committee stage, but I am inclined to say that this amendment verges a little on the bizarre. The suggestion here that an offence will be created does not seem to me among the more probable events which may result from the ratification of the treaty of Lisbon. If that is the case, as I believe it is, I think that we should abstain from inserting new clauses. We are in the period of discussion in the Committee where we insert new clauses, some of merit and some of less merit. This clause is certainly among the least probable results of the treaty process.
I was chair of the justice and home affairs sub-committee of the Lords EU Committee when the Amsterdam treaty was ratified. We conducted an inquiry on Article 13 of the Amsterdam treaty, which was the clause that introduced into the European Union much stricter rules against racism, xenophobia and a range of other activities. During that inquiry we discovered that the coalition that had got that on to the EU agenda and into the Amsterdam treaty had been substantially led by British non-governmental organisations. We took evidence from a range of bodies. I remember the CBI saying how strongly it supported this addition to the EU treaty on the grounds that British banks and companies, which increasingly employ bright young Asians, had discovered that in some other financial centres in the European Union, these bright young Asian employees were suffering various forms of discrimination.
Once again we have had a debate in which it has been assumed that it is those people over there who are imposing something on us when actually this was substantially a British initiative. Incidentally, we and the Irish—for solid and painful reasons concerned with a rather different history than the one which the noble Lord, Lord Stoddart, suggests—have some of the strongest anti-discrimination laws in the European Union. We have had to develop them because of Protestant discrimination against Catholics in Northern Ireland and elsewhere. It is not true that we have not discriminated at all in this country. The painful implications of the treaty of Amsterdam have been felt in countries such as Austria, Italy and Germany, where the rules against discrimination are much weaker. I just wish to set the record straight on that. This is not an attack by those wicked people in Brussels on pure Englishmen. It is something with which we, as in so many other areas, had a great deal to do.
I was interested in what the noble Baroness, Lady Noakes, said on taxation. Earlier today we were discussing another dimension of international tax law and the question of tax havens. In answering me the Minister praised the work of the OECD—the OECD, not the EU—on getting at the problem of offshore financial centres and tightening controls against the misuse of offshore financial centres. We are all familiar with the internationalisation of the economy and of companies, with the constant battle between clever accounting companies—the noble Baroness, Lady Noakes, will be familiar with those—advising companies and banks on how to avoid national taxation and Governments trying to maintain their tax base.
I hope there was no misunderstanding about what I was saying. I was making no case for tax evasion at all. It has nothing to do with tax havens. It is question of whether there is an EU ability to change UK tax law. It is a very narrow point but a very powerful point which I think is relevant to the Bill.
I fully understand that and I accept the distinction. Part of the problem is that as companies operate more across the single market, the opportunities for using the national laws of one country to get around the national laws of another become stronger. If one accepts that tax competition allows some Governments to undercut others beyond a certain degree then we will in time have some problems inside the European Union.
We must address the tax base. The integration of the European economy has certain implications not for the harmonisation of tax rates but for the agreement of rules of the tax base. I recall that the Leader of the Conservative Party, David Cameron, made a speech the other week in which he talked about formal regular contributions within NATO which would be taxation on member Governments of NATO to contribute to common NATO operations abroad. That is taking us down another road towards shared contributions within international organisations. That is partly because we are now doing more together. The world does not stand still and the idea that somehow problems of tax avoidance and tax evasion can be dealt with entirely at the national level in the global economy is an illusion.
I do not propose to deal with Amendment No. 129, because its inadequacies have already been adequately dealt with by the noble Lord, Lord Williamson, and another noble Lord—I have forgotten who. They are clear. I want to speak briefly to Amendment No. 130. The noble Baroness made an interesting speech in which she took us through a series of hypotheses of what might be the position if the powers of the European Court of Justice continue to be used in the way that they are, but those examples are not in any way relevant to the hypothesis put forward in Amendment No. 130, which deals exclusively with direct taxation. There is a real debate to be had about indirect taxation: in particular, as I have said before in your Lordships’ House, the indirect taxation that we have through the own-resources decision is increasingly budgetarily irrelevant. It is reducing less and less resource and it is increasingly fraud prone. There needs to be a serious taxation discussion about the role of the own-resources decision and how it needs to be replaced.
Amendment No.130 deals with direct taxation. When the Minister replies to this brief debate, I hope that he will confirm that any of the changes suggested in the amendment of the noble Lord, Lord Pearson, are not possible without harmonisation methods to bring them about, and that requires unanimous support in the Council of Ministers. We are all clear—
As I said last week, I am not in the habit of giving way in these debates. The noble Lord, Lord Pearson, has turned this far too often into an inquisition of the other Members of the Committee. I am making a brief speech and I will not interrupt him either.
As I was saying, my right honourable friend the Prime Minister has made it very clear that questions of direct taxation are issues on which the British Government will not give their assent. I look to the Minister to confirm that—that the harmonisation and acquisition in it would not be forthcoming from the British Government.
Although I respect the thinking behind the comments of my noble friend Lady Noakes, I do not agree with the amendment proposed. I am familiar with the line of cases to which she refers, which have impinged on the tax base. However, I think that she does less than justice to the European Court of Justice in failing to observe that the reason for that encroachment is to achieve an important European objective that we share—that is, the freedom of establishment and the freedom of movement of goods, persons and corporations across the European Union. Whether that balance is right or wrong can be argued about, but it is not just a wilful tax grab that is taking place; it has been an attempt to protect an important part of the European single market. Noble Lords may think that it goes too far or not far enough, but that is the motivation behind it, and to fail to refer to that seems to me to verge on the misleading.
Whether that is right or wrong, the relevant point is not whether that intrusion into the British tax base is sensible or desirable; it is whether the treaty of Lisbon does anything to further that process or could be distorted so to do. Nothing that has been said so far leads me to believe that anything in the treaty that we are currently debating could conceivably have that effect. If that effect arises as a result of the Court decisions, the Court decisions are based on other premises and not this treaty—because the treaty has not come into existence. I see nothing in the treaty that would enable the Court to go further in the direction that my noble friend deplores. For that reason, this proposal is at best otiose and at worst misleading.
No, he has sat down.
I am afraid that that is correct. I have no doubt that I shall have to put the same question to the Minister, but perhaps I could do so by giving due warning on the comments of the noble Lords, Lord Tomlinson and Lord Brittan, both of whom said that direct tax could not be introduced under the Lisbon treaty or even under the provisions of the existing treaty. I have to mention again the provisions of the single market. If the Commission were to decide that direct tax could be introduced under single market provisions, that would be by qualified majority voting—that is how it could occur. No doubt the Minister will wish to deal with that in his reply. I thought that I would deal with the noble Lords, Lord Tomlinson and Lord Brittan, first.
The noble Lord is quite wrong about direct taxation—but let me come to that in due course. I thank him for moving his amendment and all other noble Lords who have spoken in this debate. I particularly welcome the noble Baroness, Lady Noakes, to her place on the Front Bench in this debate. Her remarks have already been subject to a number of comments, both favourable and not so favourable. But I think that she is used to that.
Amendment No. 129 would insert a clause stating that neither the Bill nor the treaty will create an offence of xenophobia for which a UK citizen could be prosecuted in the UK or elsewhere. The UK Government deplore racist and xenophobic behaviour and we already have tough national laws in this area. As such, we also support the fact that the prevention and combating of such conduct is one of the aims of the Union, as reflected in the general provisions of the JHA chapter of the treaty. We will continue to work with member states to prosecute those who break our laws in this area.
I shall give a short history lesson. The first EU measure on combating racism and xenophobia was adopted by the Council in 1996. That measure will be replaced by a new framework decision on combating racism and xenophobia, which, similarly, has been agreed by the Council on the basis of the existing treaties and is expected to be formally adopted this year. This new framework decision requires all member states to have in their laws basic offences and penalties for such conduct. We support this; it is important to make it clear that we will not tolerate such behaviour within Europe. In negotiating that instrument—and this is significant—we ensured that the UK’s domestic threshold for criminal liability in this field would apply. That means that for criminal liability to be triggered, any behaviour must be carried out in a manner likely to incite violence or hatred and must be threatening, abusive or insulting or likely to disturb the peace.
In terms of UK law, there are various relevant pieces of legislation: the Public Order Act 1986 contains a number of offences covering Acts intended or likely to start racial hatred. The Crime and Disorder Act 1998 introduced nine racially or religiously aggravated offences, which make available to courts higher penalties when there is evidence of racist or religious motivation or hostility in connection with an offence. Most recently, the Racial and Religious Hatred Act 2006 created an offence of incitement to racial hatred. That piece of legislation came into effect on 1 October 2007.
As for the extradition and prosecution of UK citizens in other member states under the framework decision on the European arrest warrant, to which the noble Lord referred in slightly disparaging terms, we will extradite to another member state individuals to be prosecuted in that member state for offences committed there. This could include an offence involving racism and xenophobia. Similarly, we would expect to be assisted by other member states in bringing to justice individuals who had committed offences under our rules in the UK—for instance, in this context, offences under the legislation that I mentioned a moment ago. Any new measures on racism and xenophobia proposed under the Lisbon treaty would be subject to the UK’s opt-in, which, as noble Lords are well aware, applies throughout the justice and home affairs chapter. We therefore have clear safeguards in this area, were a measure to be proposed that would not be in the UK’s national interest.
I did not hear the noble Lord, Lord Pearson of Rannoch, say this, but if he has a concern for himself or for any others who feel as he does that expressing opinions against the EU, even in fairly robust terms, might lead to either his extradition or prosecution in another member state, I can reassure him that that is not the case.
I finish by saying that the Lisbon treaty sets out a closed list of areas of crime for which the Union can set minimum offences and penalties. That list does not include racism and xenophobia. Were the Union to decide to legislate further to set minimum offences and penalties on racism and xenophobia, the Council would have to agree, unanimously, to add those two matters to that list. The opt-in would apply to that decision to add to the list, as well as to any measure subsequently proposed on the basis of the inclusion of racism and xenophobia on the list. This is a consequence of the welcome greater clarity in this treaty as to where the Union has competence to legislate in this field.
Amendment No. 130 relates to direct taxation by EU institutions and harmonisation of direct tax rates across the EU. This amendment is unnecessary. With regard to the first part, there is no suggestion in the Lisbon treaty or elsewhere in the EU treaties that EU institutions should be able to impose a tax directly on EU citizens. So far as concerns the second part of the amendment, government policy on tax harmonisation is crystal clear: harmonisation of direct taxes is unnecessary and undesirable. Since we have ensured that decisions on tax matters must be taken by unanimity, we will be able to prevent any proposals that attempt to bring about such harmonisation.
In a word, the Government have a clear position on EU tax matters: decisions should be taken by unanimity and open, flexible and competitive national tax systems allied with renewed international co-operation, not tax harmonisation, are the right response to the challenge of a global economy. We have no intention of changing that position. Since unanimity is needed for any taxation measure, we believe that we will be able to maintain the position with our EU partners.
I briefly mention the role of the European Court of Justice in taxation matters. I agree with the noble Lord, Lord Brittan, whose experience of the matter is so much greater than mine. The ECJ, in very simple terms, is responsible for giving definitive interpretations of the treaties. In the field of indirect tax its ruling clarifies the large body of EU law on VAT and indirect taxation. For direct tax where, as I have just emphasised, policy rests with individual governments, the Court’s role is to ensure that national rules remain within the parameters set by or under the treaty, either in the small number of directives concerning direct tax or in the general principles laid down in the treaty. I repeat: the Government will defend resolutely the UK’s tax laws against challenge before the ECJ. On that basis, I hope the noble Lord will not press his amendments.
Suppose an individual were publicly to set fire to the EU flag with a view to stirring up hatred against the European Union—not that I suggest for a moment that anybody should do so. Could he be prosecuted under existing laws in the United Kingdom for stirring up racial hatred or animosity? If not, might he be prosecuted as a consequence of some future EU directive?
He can certainly be prosecuted under UK criminal law for criminal damage, if for no other offence. I am not in a position to give a reply to the noble Lord, but my strong impression is, no, the individual could not be, but I will take away the noble Lord’s hypothetical case and write to him.
I am most grateful to all noble Lords who have spoken, and particularly to those who have supported the amendments. I will have to read Hansard, but I think that the Minister said there is no possibility of a British citizen being arrested under the charge of xenophobia for insulting the European Union, either here or in Europe, whether he is extradited and tried under the arrest warrant or in any other way. I think that that is what the noble Lord said about Amendment No. 129, in which case I am happy to withdraw that. As to Amendment No. 130—
Will the noble Lord give way? I am most obliged. Of course it is considered courteous in this House to give way if somebody challenges you, unlike in the House of Commons.
I am surprised that the noble Lord should be happy with the reply given by the Minister on xenophobia. Surely he would agree that xenophobia is quite different from racism. The question that the noble Lord, Lord Bach, really should answer is, if somebody expresses dislike of the French or perhaps even hatred of the Germans because of the war they caused in 1939, could they be extradited to another country where there is an offence of xenophobia?
I thought it was perfectly clear under the present arrest warrant that that person can be so extradited. I am doing the Minister’s job for him, but I feel sure that he agrees. If he does not, this is his moment to say so.
I was merely trying to draw these amendments to a close in the happy conclusion that the Government have said that it will not be possible to be prosecuted, extradited or anything for the crime of xenophobia when it entails speaking against or insulting the European Union, especially as the project proceeds. My noble friend Lord Stoddart may well be right. As I said, I think we need to look at Hansard and come back on Report if necessary.
On direct taxation, I think that the Minister said that this amendment was quite unnecessary. I fear that he will turn out to have given a hostage to fortune. I am reasonably sure that as this project proceeds, using the single-market provisions of the treaty which are under qualified majority voting or the social policy provisions of the treaty, the European Union will get its tentacles round more of our direct taxation than it has already done through the judicial activism of the Court. But I am delighted that the noble Lord said that. As I say, I hope he has not given a couple of hostages to fortune. In the mean time, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 130 and 130A not moved.]
Clause 3 [Changes of terminology]:
131: Clause 3, page 2, line 12, leave out paragraph (c) and insert—
“(c) may be made only if a draft of the order has been—(i) laid before Parliament; and(ii) approved by a resolution of each House”
The noble Lord said: Clause 3 deals with changes in terminology and the necessary and consequent alterations in both terminology and numbering in UK legislation that the treaty of Lisbon makes necessary. Amendment No. 131 is in my name and that of my noble friend Lord Howell of Guildford. It is about parliamentary accountability. How should the procedure be dealt with to ensure that Parliament scrutinises any necessary changes which come forward? Our concerns with Clause 3 centre on the legal confusion and unintended consequences that might result from hasty and unscrutinised amendments to UK laws.
It has become a general principle that if the Government wish to take Henry VIII powers to amend primary legislation by order, then we as a House look at that very seriously indeed and want to scrutinise it very closely. In this case the sensitivity of the legal ramifications of the changes surely make the case that there should at least be affirmative parliamentary approval.
The changes are consequent on the collapse of the three pillars into the overarching term “the European Union”, the EU. The European Community will no longer have separate legal status; nor will the common foreign and security policy. Police and criminal justice co-operation will be handled separately. The Government have given various assurances about the efficacy of the CFSP exemption in Clause 2 and of the safeguards around the introduction of further police and judicial co-operation, about which many noble Lords have expressed deep concern. The differences of view expressed in the other place on the potential effects of these changes reinforce those concerns.
I do not want to go into all the ramifications of these changes. They were dealt with in extensive debate in the other place. I want to confine the debate about the amendment, if that is possible, to the procedural mechanics of how the changes should be effected.
Of course, the amendment in no way prevents necessary drafting changes being made. All it does is give an opportunity for Parliament to reassure itself that they are as innocuous as the Minister will no doubt claim. However, we need a little more than just assurances.
The amendment says that, under Clause 3(5), if there is to be an order under subsection (4), it shall be made by statutory instrument. Paragraph (c) says that it shall be subject to annulment—the negative resolution procedure. The amendment would insert a new paragraph (c) containing the words,
“may be made only if a draft of the order has been—
(i) laid before Parliament; and
(ii) approved by a resolution of each House."
I followed the debate in the other place very carefully indeed. I saw that this was a major issue, as it is—and should be—in this House. References to the European Community are to be replaced with references to the European Union. On the face of it, that seems a simple process, until one looks at the context in which all these changes are to be made. Looking at the speeches of many Members of the other place, one is concerned about how wide-ranging these changes might become and about the wonderful law of unintended consequences. There is therefore a good case for Parliament to be involved in scrutinising the changes.
I was impressed by the speech in the other place of Jo Swinson, the Liberal Democrat Member for East Dunbartonshire, who not only said how strongly she agreed with the spirit of the amendment, but clearly stated that the Liberal Democrat party would support the amendment, because it is,
“in favour of proper scrutiny in the House”.
She pointed out that all the amendment did was propose the sensible change of moving from the negative to the affirmative resolution procedure. She expressed herself well when she added that the amendment both proposes that we should keep:
“Ministers on their toes more and ensures proper scrutiny”.
What a wonderful objective, which I wholly endorse. She added how much she welcomed the opportunity to join forces with the Opposition:
“I therefore welcome the perhaps rare opportunity to support an amendment tabled by the right hon. Member for Wells, as it would enable us to have greater power to scrutinise various aspects of the Bill”. —[Official Report, Commons, 3/3/08; col. 1487.]
I say this because there is a rumour that the Liberal Democrats in this place have decided to support the Government not only on amendments with which they disagree, but on amendments with which they agree, with which their party agrees, and which their party moved in the other place. This is currently no more than a rumour, and we are about to put it to the test. I say, by way of warning to whoever is going to speak from the Liberal Democrat Benches, that such was the persuasive speech of Jo Swinson that it caused her party leader, Mr Clegg, accompanied by Dr Vincent Cable, Mr Edward Davey, Danny Alexander and Chris Huhne—the list is endless—to swarm into the Lobby with the Conservative Party in favour of the amendment. I therefore anticipate with profound optimism that we shall get support on the amendment.
It is important for parliamentary democracy that we should have proper scrutiny in this place. I therefore have much pleasure in begging to move.
My noble friend Lord Willoughby de Broke, the noble Lord, Lord Stoddart of Swindon, and I have a Question about whether the schedule should stand part of the Bill grouped with this amendment. We tabled this to draw your Lordships’ attention to how the stealthy but steady advance of the project of European integration has been reflected in its name over the years.
First it was called the European Common Market, which is what the people of this country thought that they were voting for in 1975. Then it became the European Economic Community; not much change there, you might think. Then it became the European Community; again, not a big difference, unless you were on the ball and not asleep at the switch. Finally, of course, it became the European Union, which is—
I think that the noble Lord is in error. It was never called the European Common Market. It began with three institutions: the European Economic Community, the European Coal and Steel Community and EURATOM. In the late 1950s, the three were merged into the European Economic Community. I think that he will find that, at the time of the referendum, the people of this country wisely decided to remain members of the European Economic Community.
I am grateful to the noble Lord, but I hope that he will concede that most people in this country still refer to the Common Market. That is what it was known as and what, in 1975, I thought that we were debating; it was called the Common Market. No doubt he is technically correct, but that is how it started and how it still is in the minds of most people. As I was saying, we have now progressed through all these stages towards the European Union, which is what we have today. Any use of earlier stalking horses has now been banned.
You have to hand it to the Eurocrats: they think long-term. No doubt they continue to do so with this constitutional treaty of Lisbon.
We all appreciate that we play games on this. I simply read the relevant report of the House of Lords Delegated Powers and Regulatory Reform Committee, which satisfies us on this point:
“This is a Henry VIII power, but its scope is narrowly confined to two specific kinds of consequential amendment. We consider neither the delegation nor the level of scrutiny to be inappropriate”.
We on these Benches accept that. We remain deeply committed to active parliamentary scrutiny on the whole process of European integration. That cannot only be done as we pass each institutional amendment to the treaty. We must work at it through our committees as well as in our Chamber on a continuing basis. That is the sort of scrutiny to which we are committed. We are rather less committed to playing games with the Conservative Opposition.
I should like to quote from Britain’s New Deal in Europe, the document issued by the then Labour Government prior to Britain’s entry into the Common Market. It says:
“Your right to choose … The Labour Party manifesto in the election made it clear that Labour rejected the terms under which Britain’s entry into the Common Market had been negotiated, and promised that, if returned to power, they would set out to get better terms.
The British people were promised the right to decide through the ballot box whether or not we should stay in the Common Market on the new terms”.
So the terminology “Common Market” is perfectly correct, and is set out in the new deal document.
According to this important amendment, an order made under Clause 3(4) would be subject to affirmative resolution. If it is not accepted it will mean that any terminology—terminology is important in my view—that is altered will be put into operation and under the acquis cannot then be repealed before a Motion for annulment can take place. That is why the amendment is so important. It asks that before any terminology that might adversely affect this country is put in place, Parliament should have a say that means something rather than just expressing an opinion. I support the amendment and urge every Member of the Committee to do the same if they want to protect parliamentary power and privilege.
Amendment No. 131 relates to the power in the Bill allowing the Government to make changes to terminology or numbering resulting from the Lisbon treaty in other pieces of UK law. The Bill provides for references in UK domestic legislation to the “Communities” to be treated as references to the “Union”. The schedule sets out other changes in terminology in the European Communities Act 1972 and the Interpretation Act 1978 needed to reflect the change from European Community to European Union.
Other consequential changes may be required in other pieces of legislation. That is why the Bill contains a power for the Government to update terminology and numbering in existing legislation by order, subject to annulment by resolution of either House of Parliament. That is a power to make purely technical changes. For example, the article numbers in the treaties will change on entry into force of the Lisbon treaty. The “co-decision procedure” is renamed the “ordinary legislative procedure”. These are not changes of substance, but may need to be updated in UK law to reflect the change of terminology. I repeat that this will not mean any change of substance in terms of existing UK legislation. It is a purely technical updating exercise. Clause 3(4) makes it clear that the power to update references in existing legislation is limited to changes,
“to reflect changes in terminology or numbering arising out of the Treaty of Lisbon”.
This order-making power is necessary to avoid any legal uncertainty as a result of changes to terminology. The negative resolution procedure is appropriate in this case. Otherwise each House would have to approve every single such consequential change. We believe that we have got it right. Clause 3 avoids that exhaustive—not to say exhausting—exercise. As a safeguard against the unlikely event that this or a future Government would try to exceed the very limited power to make orders set out in the clause, it is clearly provided that any orders are subject to annulment in pursuance of a resolution of either House of Parliament.
I have been following the Minister with great attention, particularly in view of the remarks of the noble Lord, Lord Hunt of Wirral, and those of my honourable friends in another place. There are precedents for this in previous legislation that has been introduced to amend the treaty, and I understand that the negative procedure has been used on every occasion to make comparable changes. I hope that the Minister will confirm that in due course.
I am not in a position to confirm that tonight but if the noble Lord, Lord Roper, knows it to be so, that is good enough for me. Of course it will not be good enough for the House so I shall find out. That is another powerful argument. Indeed, my most powerful argument has already been employed by the noble Lord, Lord Wallace. I am slightly disappointed that he mentioned the finding in the Delegated Powers and Regulatory Reform Committee. When it is against the Government, we hear about it so much—rightly, as it is a respected and independent Committee of this House. Having considered the matter, it came to the view that neither the delegation nor the level of scrutiny was inappropriate. That is good enough for me in this case; good enough for the Government; and it should be good enough for the noble Lord, Lord Hunt.
We heard a number of things about changes in terminology and the importance of us believing that everyone used to call it the “Common Market” and still thinks of it as a common market. My recollection of the question on the ballot paper for the referendum in 1975 was that it referred to whether we wished to stay in the European Communities, not in the Common Market. Is that the Minister’s recollection?
I think that I can answer the question posed by the noble Lord, Lord Wallace. In his introduction to the document, which unfortunately has gone to Hansard, Harold Wilson, the then Prime Minister, referred to the European Community and, in brackets, Common Market. You can take which one you like.
Obviously in this discussion between the noble Lords, Lord Wallace and Lord Stoddart, terminology is very important. It is important to me, too. My noble friend Lord Tugendhat reminded us how it all started, and in some ways his words are a caution to us all. When we joined the Common Market, as it was then called, there were three treaties: the European Coal and Steel Community treaty signed in 1951; the European Atomic Energy Community treaty, usually known as EURATOM; and the European Economic Community treaty, usually abbreviated to the EEC, set up by the Treaty of Rome in 1957. Collectively those treaties form what were known as the European Communities.
I am grateful to the Minister for explaining why he opposed this amendment. He did so because he said that we would be led into an exhausting procedure. He said it in such a tired way that there was a wave of sympathy, mainly because he is such a hard-working Minister. I then asked myself, what am I proposing that will exhaust him? It is merely that instead of putting the onus on those who wish to question something by putting down a Prayer to cause a debate, identical procedure would be followed in drawing up the changes that they be subject to affirmative resolution. I cannot see that that would cause the Minister a substantial period of exhaustion. Given his good track record in these matters, I do not think that it presents him with any problem at all.
We come back to whether our Delegated Powers and Regulatory Reform Committee is right in saying that this will be a strictly technical area. I would not have moved this amendment if I could agree with that 100 per cent and accept it as fact. I think that we are dealing with what could be a highly complicated area. The large number of changes that will be made as we move from one terminology to the other could have unintended consequences, which is why I proposed this amendment—and, presumably, is why the whole of the Liberal Democrat Party voted for an identical amendment in the other place. I am not aware of any Liberal Democrat in the other place who supported the Government. They all voted for this amendment—and I agree with them. However, what I do not agree with is the noble Lord, Lord Wallace of Saltaire, accusing me of playing games. He said that he was not interested in playing games with the Opposition. I tell him that this is not a game: it is a serious issue. It is all about parliamentary accountability. On many occasions, I have supported his noble friends who have proposed identical amendments on moving from the negative to the affirmative resolution procedure, and I will do so again. However, I do not regard it as a game. I regard it as serious parliamentary politics; holding the Government to account.
I know that the noble Lord is only following what the noble Lord, Lord McNally, said the other day when he accused me of setting elephant traps. Well, I have news for him. This is not so much an elephant trap as a mousetrap. I am in the presence of the noble Lord, Lord Willoughby de Broke, who owns St Martin’s Theatre, where “The Mousetrap” is the longest running show in town. So far as concerns this amendment, I will tell you whodunit—they done it! The Liberal Democrats did it in another place—they supported it and voted for it. I reckon that they are in danger of becoming the longest running farce in Westminster. We shall now see what they do and judge them accordingly. I wish to test the opinion of the House.
Clause 3 agreed to.
The Schedule [Changes of Terminology]:
[Amendments Nos. 132 to 135 had been withdrawn from the Marshalled List.]
The Schedule agreed to.
Clause 6 [Parliamentary control of decisions]:
136: Clause 6, page 2, line 39, leave out from “Crown” to “a” and insert “shall vote against or otherwise reject”
The noble Lord said: We now pass swiftly to Clause 6, which is a long clause, and in doing so I note that we are making good progress in a very complex area. Therefore, we need to focus on the most crucial issues which cause the most concern, and this is one of them.
The amendment should gain the support of most liberally minded people, but what I say next, I say more in hope than from experience. I hope that the Liberal Democrat Party will support the amendment, as it did with vigour in the other place. In the words of its spokesman, the eloquent Mr Davey:
“We intend to support the right hon. Gentleman’s amendment”—
that is, my colleague Mr William Hague—
“because we believe that parliamentary control should be retained in those areas”.—[Official Report, Commons, 4/3/08; col. 1681.]
No doubt we will learn later that something has changed, although we do not quite understand what. It seems to be pretty straightforward that parliamentary control is parliamentary control and belief in it is belief in it, but no doubt some contortions will be devised to tell us different. Even so, it is sad that we cannot rely on those of a liberal slant of mind to support what is clearly both liberal and democratic and in favour of the good parliamentarian’s cause.
These areas, as Mr Davey describes them—the so-called passerelle or ratchet provisions—are of widespread concern because they provide prominently and precisely for the treaty to be self-amending and therefore obviously, in the case of any such self-amendments, to reduce the powers of member states and national parliaments, perhaps not unilaterally but by methods which do not necessarily embrace parliaments sufficiently. They could do so on a substantial scale.
I note in passing that the words here are identical to the words in the rejected constitutional treaty, as are almost all the words in this treaty. When they first appeared, they were strongly opposed by Ministers, and it verges on the insulting to be told again and again that they are not the same words when they patently are. The Government have a lot more explaining to do to try to sustain their weak case that all this is somehow different from what went before. Jack Straw, the Secretary of State for Justice, when he was Secretary of State for Foreign and Commonwealth Affairs warned starkly how late at night at a European Council some concession could be easily traded for a concession on moving from unanimity to QMV and said that that was not acceptable. Mr Denis MacShane MP, as he passed colourfully through his Foreign and Commonwealth Office ministerial role, added:
“We think that a self-amending constitutional treaty does not make a lot of sense”.—[Official Report, Commons Standing Committee on the Intergovernmental Conference, 20/10/03; col. 20.]
Nor does it. Most noble Lords know that. It certainly invalidates the misleading claims by the Prime Minister that the Lisbon treaty marks the end of a period of EU institutional change. On the contrary, if passed, it would mark the beginning of a process of institutional change by the self-amending process and by the clear reading of comments being made throughout Europe that more institutional changes and integration are needed. Indeed, there is even some talk of the next round of treaty-making on top of this treaty, which will have its own internal momentum. Looking ahead, we could be in for a substantial volume of further change rather than a settled period without institutional change. It could change the position quite radically, even on common foreign and security policy, over and above the fact that there are 11 areas where QMV already intrudes in foreign-policy issues as proposed in the treaty, despite Ministers’ constant assurances to the contrary.
The Government were obviously worried about this and about safeguards. Their worry is reflected in Clause 6, which provides that a motion must be approved by both Houses before Ministers go along with the passerelle self-amending procedure—the new simplified revision process. Our contention behind the amendment is that that is not nearly enough. A treaty change which plainly transfers powers away from our Parliament requires not just a motion in the two Houses but an Act of Parliament. We are not the only ones who say that. The Commons Foreign Affairs Committee—an excellent committee I had some connection with in the past—recommended, in a very thorough review, that all treaty changes under passerelle procedure should be the subject of primary legislation. Is it to be pushed aside as just another committee—“never mind about it”? Incidentally, I notice that our own EU Committee in your Lordships’ House seemed rather more content with the proposal that there should be a mere motion in both Houses. But the Foreign Affairs Committee of the other place is a powerful and respected Committee and carries enormous weight. I do not think its very firm, unqualified proposition that primary legislation is needed in this area can just be disregarded.
The Foreign Affairs Committee is right and the present Minister of Justice—the former Foreign Secretary—is right. It is ridiculous that the powers of our nation and our Parliament should be curtailed further. They obviously would be curtailed one evening on a whipped vote, on a wide range of issues such as visas, family law, police co-operation, the right of police to operate in other countries, the EU financial framework—an enormous area—and a possibility of changing the rules involving CFSP as well. It cannot be right that all that should be done without Acts of Parliament. Everyone opposing the Government in the other place—all the opposition parties—knew that it could not be right, whatever the changed conditions and whatever some people may conclude.
This is just an amendment which seeks to correct that situation. It does not alter the treaty. No one can say this is wrecking the treaty. It does not touch the treaty; it is concerned with our own affairs. It does not alter what has been agreed in the Lisbon treaty, but it strengthens our democracy. This is a time when it needs strengthening and, for those reasons, I beg to move.
I agree with the noble Lord, Lord Howell—this group of amendments is extremely important. The European Union Committee has considered these matters and in the absence of its chairman—the noble Lord, Lord Grenfell—has asked me to say that it did report on them in paragraphs 315 and 316. It is rather important to look at the position of your Lordships’ House as far as the present situation is concerned alongside the situation at an earlier stage and in the legislation which was prepared to be put forward for the constitutional treaty. On that occasion the powers of the House of Lords were extremely limited. When the Prime Minister returned from the discussions on this treaty, he initially suggested that it would be for only the House of Commons to agree or not agree the use of a passerelle. It was only following questioning within your Lordships’ committee that the Minister, Mr Murphy, responded. When the Bill appeared for the first time, the House of Lords was given an equivalent power in this matter. Therefore, I think that the first thing to say is that there is a significant increase in the position of the House of Lords as far as this is concerned, compared with earlier proposals.
The second thing that your Lordships need to consider is that any proposal to use the passerelle procedure to carry a small alteration to the treaty would be by means of a European Union instrument, which would necessarily have to go through the scrutiny process of your Lordships’ European Union Committee. I cannot say what the committee would do in those circumstances, but it is not implausible that it would wish to have an inquiry into any attempt to change the provisions of the treaty, and would wish to make a report to this House. The idea that the parliamentary procedure that would occur if the passerelle were to be used would be that of a normal statutory instrument, which under a convention goes through this House without opposition, is something of an exaggeration.
I would be grateful if the Minister, in replying to this debate, would let the Committee know how the Government see the role of the two Houses in their consideration of orders to implement the use of a passerelle. I do not believe that the normal conventions on the application of statutory instruments would apply. Before we come to make a decision on this amendment and before we have to face the challenge posed by the noble Lord, Lord Howell, about whether we accept some of the things that our colleagues have said in the House of Commons, I would like to discover how the Government envisage that such an instrument would be considered in this House.
I have a question for the noble Lord. Where do we find in paragraphs 3.15 and 3.16 the mind of that committee being focused on the alternatives? One is enactment by primary legislation in this House and the other is by approval, which can be through a motion before the Houses. However, I may be doing the committee an injustice, as I have had only a short time to look at the two passages that he cited.
With the leave of the Committee, it may be convenient for me to speak to Amendment No. 150, which deals with parliamentary control, although it is grouped separately on the groupings list. If that is in order, I should like to make a few remarks on it.
The purpose of the amendment in my name and the names of my noble friend Lord Pearson and the noble Lord, Lord Stoddart of Swindon, is to put flesh on the bones of the spurious claim that the Lisbon treaty gives more powers to national parliaments. Our amendment would require Ministers, before they cement their negotiating position on any proposed EU law, to get approval from a Joint Committee of both Houses and/or from both Houses of Parliament. Should the Joint Committee wish, it may refer matters to debate in both Houses.
Let me remind the Committee why I say that the claim that the Lisbon treaty gives or returns powers to national parliaments is entirely bogus. Under the terms of the two protocols in the treaty, which I believe that the Minister confirmed the other day are binding, parliaments will have the right to consider whether Commission proposals are compliant with subsidiarity. Parliaments have eight weeks to consider Commission proposals, which is a marginal improvement over the six weeks that were proposed in the constitution. I suppose that you could call it an improvement, but it is not worth arguing about; as Dr Johnson would say, it is like arguing the difference between a louse and a flea. If one-third of the 27 national parliaments consider that there has been no such compliance, it may be sent back to the Commission, which can simply decide to maintain its proposal if it wishes. How can that possibly be interpreted as strengthening the role of national parliaments? It does not.
Under Protocol 2, a simple majority of all national parliaments—14 in this case—may require the Commission to review a proposal. Again, the Commission may decide to override national parliaments. Its reasons for doing so would have to be put to the Council of Ministers and the European Parliament, and a majority of those august bodies may then decide whether to support the parliaments. Those are very high hurdles indeed and, again, simply cannot realistically be described as giving more powers back to national parliaments. You can argue—as I would—that such proposals are actively damaging. They give the appearance of accountability without the substance.
The problem is that our own system of scrutinising parliamentary legislation in this country is not satisfactory either. We have the European Union Scrutiny Committee in the other place, or our own EU Select Committee. The only power that either of these committees has is that of scrutiny reserve. In theory this means that they can ask the Government not to approve EU legislation until it has been debated in Parliament. This simply has not worked very well, has it? The problem is not only the amount of legislation or the limited powers of the EU committees, but the propensity of Governments to use the scrutiny override reserve and proceed to legislate without either House of Parliament having had a chance to debate it or, indeed, often to scrutinise it properly.
Since 2001 the Government have used the scrutiny override 346 times. In 2005 alone, it was used 52 times in the European Union Scrutiny Committee and 28 times in the Select Committee of your Lordships’ House. I asked a question about that last summer and the noble Baroness, Lady Royall, who answered for the Government then, denied that there was any gap in European scrutiny. She said that the Government,
“will continue to account for their actions by writing to the chairman of the House of Lords European Union Committee”.—[Official Report, 15/5/07; col. 124.]
I am not sure how that answers the question. Merely writing to the chairman is not a particularly strong measure and does not answer the concerns that have been expressed in the Chamber this evening and earlier about the powers of Parliament to monitor, scrutinise and debate European legislation before it comes into force. The reality, I am afraid, is that EU proposals can become law without being properly scrutinised. For example, again in 2005, rather astonishingly, the EU produced 1,691 pieces of legislation, be they regulations, directives or decisions. Those passed into UK law without full scrutiny or, in some cases, any scrutiny at all. That really is quite astonishing.
Our amendments would mean that the scrutiny process is much stronger and more accountable than the current system. It would include both Houses of Parliament and require parliamentary approval of ministerial positions. It would be much harder for Ministers to override, and would mean that Parliament would control the position of Ministers in EU negotiations. Going back to my question last summer and today’s debate, I was happy to see that I got a little support from the noble Lord, Lord Wallace of Saltaire, who said:
“Does the Minister recall the Chancellor of the Exchequer has recently made some powerful proposals to strengthen the role of Parliament in relation to the Executive? Does she not agree that this is one area where the strengthening of the role of Parliament against the Executive where Ministers do not pay sufficient attention to making sure that good replies are given on time to committees should be one of his priorities?”.—[Official Report, 15/5/07; col. 125.]
Again, tonight, the noble Lord, Lord Wallace, in reply to the noble Lord, Lord Hunt, said that he was deeply committed to parliamentary scrutiny of EU legislation. So I hope that I can count on the support of the Liberal Democrats. I beg to move.
I agree with the noble Lord, Lord Howell of Guildford, that these are important provisions on the footbridges, which your francophone Lordships continue to refer to as passerelles. Footbridges are important because they enable you to cross the line. In this Bill, they are important because we are dealing with clauses which have been inserted by the Government that are additional to the simple insertion of the treaty provisions into the European Communities Act; that is, they are important enough to require special clauses. They are also important because they go beyond earlier treaties. The two general amending provisions to simplify revision procedure so that things could be changed without an intergovernmental conference—they are in Article 1(56) of the treaty—go beyond previous treaties and legislation. It is also extremely important that what the Government have proposed should be adequate to ensure that we do not get an unwanted crossing of a line, which is sometimes described as creep in the provisions of European Union legislation.
The Government have at least two forms of blockage on the potential use of these articles. The first is that unanimity, which has not been mentioned but is very important, applies, so that the British position can be protected. Secondly, there is the parliamentary procedure which we are discussing. Whether it is sufficient to have a Motion moved in the House, and each House agreeing to that Motion without amendment, is a matter of judgment. This is an important issue and I believe that the Government have put sufficient belt and braces in the Bill. If we are not satisfied, we are running some risk with these, what I shall continue to call, footbridge provisions, and not classify myself for the moment as a francophone Lord.
This is an extremely important amendment. I refer particularly to Amendment No. 136A, which I imagine is the amendment on which we may or may not vote. I cannot imagine a more important amendment among those on which we will vote. This will last for at least a decade. It is unlikely that we will get such major European Union legislation short of that.
It seems that there is a real problem for Members of this House and, particularly, for Members of the House of Commons. We consistently move forward with greater European integration against the will of the British people. We can argue about particular opinion polls at particular times, but there is a steady opposition to what we are doing in Parliament, which has been going on, I would say, since the early 1980s, which is a long time for Parliament to be in opposition to sustained public opinion. Probably, there is no other issue on which Parliament has chosen to be against public opinion apart from the death penalty.
As this legislation goes through, we need to be very careful. I note that the leader of the Opposition said in a speech the other day that these European questions were sixth or seventh in lists of priorities. That may be true in a straight question to people, but opinion polls often do not gauge the deeper issues. In my view, many people in this country judged that the present Prime Minister had a good instinct on the European question—he demonstrated that over the euro, when he was Chancellor of the Exchequer—but he is in grave danger of losing that. I believe that is an important, deep issue on which people assess both individuals and political parties.
We are discussing something here that the noble Lord who just spoke may not fully appreciate, although he was a distinguished civil servant. Yet if I took him back to his early days of membership of the Civil Service, I suspect that he, at least in another place, spent some time in the Box late at night while listening to debates. It is a fact of parliamentary experience that the power of delay—the powers to keep Ministers up into the small hours of the morning, and to use every legitimate purpose to delay legislation—has been, over the centuries, a crucial power of the House of Commons. It also does not require a great constitutional expert to look at the present House of Commons and watch what has happened when its so-called reforms have taken place. Night after night, I pass by and look up instinctively to Big Ben to see whether the light is there and the House is still sitting. Night after night, I notice that it is no longer sitting. I listen to all of those speeches about parliamentary reform and the value of Select Committees, and I ask myself: what is happening in Parliament? I look at the legislation: a factory of it goes through, day after day. Nobody has seen more legislation than the Home Office, it appears, and what is the end result of that process?
I sat in Parliament within a large majority. In 1966 to 1970 we had a majority of over 90, and we could get most of the legislation that we wanted through. Even then, however, there were great debates about using the guillotine. When that was introduced, it was considered something that one used rarely—knowing full well that there would be a sustained public row and that the newspapers would almost always be against it. You would hesitate before you did it. Now, we see Bills timetabled from the start, with no need for rows about the guillotine. That factory down the Corridor continues to spout out legislation after legislation, which also contributes to the public mood of disillusion with politics. There are many factors behind that; I do not claim that Europe is No. 1, or even that the legislative factory down the Corridor is No. 2. There are other reasons, with which we are clearly familiar, including those connected with corruption.
What that all means is that this Committee has an opportunity tonight to try and restore the normal way of holding a Government to account, which is through primary legislation. It is not as if that is without precedent. I have mentioned this before: I do so again. On the statute book, in the European Assembly Elections Act 1978, which has since been absorbed into other legislation, there is a provision that no increase in the powers of the European Parliament can be made or agreed to in Europe by any Minister at any time without their coming back and having primary legislation in this House. With respect to the noble Lord, Lord Williamson, many Foreign Office officials argued that it was impossible to put that parliamentary brake in process; it was considered impossible to do.
The noble Lord may well remember the arguments that took place about that legislation. It was largely due to the spirit of a female lawyer in the Foreign Office, who insisted that we did have the right to do this, that we proposed to do it. It was a crucial element in the letter of the then Prime Minister to the Labour Party aimed at getting people behind the decision of the referendum and to carry through a more positive attitude. I refer to the 1977 Labour Party annual meeting and the letter of Jim Callaghan to the chairman of the party on the eve of the conference. It was an indication that, despite the commitment in the 1972 legislation, we could use parliamentary procedure as a brake if both Houses of Parliament decided to do so.
It is a welcome change that the Prime Minister has suggested that the passerelle clauses should have to go before both Houses of Parliament. I accept the valuable interjection of the noble Lord who explained that initially it was not the intention for them to go through this House. It is certainly right that they should go through both Houses of Parliament but this is not enough. I know the noble Lord very well—he was Chief Whip under my leadership for a while—and he knows the procedures of the other place better than anyone. He knows that one vote held on one occasion in the House of Commons is as nothing compared with a series of votes held on primary legislation.
I quite agree. And because it is timetabled it is less onerous to ask the Government to accept that it should be primary legislation. I accept that it is certainly weaker. But it could be argued that they have now controlled the process to some extent and there do not have to be guillotines. Far from weakening my case, I think it strengthens it.
I wonder what the Liberal Democrats’ position will be on this. As I understand it, when this matter came to a vote in the other place, Liberal MPs voted in favour of it being in primary legislation. The little debate that we had earlier today was one thing—I did not bother to vote; I vote so rarely that I am not going to vote on trivial matters—but this is another. The arguments used in that debate, about questions of judgment, cannot be used in this one. This is a substantive and important debate. I am very pleased to see the leader of the Liberal Democrats in his place, because he played an important part in the drafting of the letter of the Prime Minister in 1977. He will remember the importance that was attached to the power we gave Parliament to curb any increase in powers in the European Parliament.
Having made the case for at least occasionally using the full parliamentary brake of legislation, we must ask whether the passerelle clauses represent something substantial. That is the issue that we have to discuss. There is no question—no one seems to have denied it; indeed it has been used as the Government’s reason for giving a single vote in both Houses on this issue—but that you could in some circumstances, as it would require unanimity, move to a vote for qualified majority voting in foreign policy. Imagine a situation where, seven years on, no one political party has an outright majority in the other place and we have, say, a Labour-Liberal Democrat coalition. The issue of moving to a qualified majority vote comes up in the European Council and the Prime Minister of the day—I will not say which political party he comes from—comes back, having made a decision in the middle of the night, to go along with the majority and have qualified majority voting. Do people understand that in that circumstance, the only check is going to be a single vote in the Houses of Parliament? I would argue that it is a fundamentally important decision, the decision above all which would influence whether integration was fully achieved or the rather ambivalent European organisation we have at the moment remained.
I thank the noble Lord for allowing me to intervene in his excellent exposition. I understand that the vote that he is talking about in the other place now often takes place under a deferred division procedure, which means the actual vote may be on days when most of the people who heard the debate are not even there.
It is not for me to go into too much detail on what is or is not reform in the other place. I am very conscious of the fact that, as you get older, you always think everything that happened in your time was much better than it is at present. In my family when my children were younger and I started reminiscing about how much better things used to be, they would quote from the Monty Python sketch and say, “I worked 27 hours a day”. It would end with a collapse of stout party and I would not be able to resume my case. I am not sure any noble Lord would intervene in that way, but in case they might be tempted, I will not follow the noble Lord down the path of discussing what should or should not be reform in the House of Commons. That time has long since passed for me.
I am grateful to the noble Lord. I wanted to clarify that no Minister in the middle of the night could agree to anything. What is proposed by the Government in the Bill is that the vote would have to take place before the Minister could signify support or opposition in any form, whether by nodding their head, voting or abstaining. The noble Lord needs to be aware of that.
I am afraid the noble Baroness did not quite hear what I was saying. I said that in the middle of the night the Prime Minister may succumb in the European Council to a decision for a unanimous vote. The legislation that is passed will be subject to a vote in both Houses of Parliament, but once that decision is taken by the Prime Minister—and it is usually in the small hours of the morning—
I want to be absolutely clear. The Prime Minister or any other Minister could not make that decision in the middle of the night. The requirement on them is that, before they can signify support or otherwise for any proposal under the passerelles, they must have already had the vote and debate in Parliament. They simply cannot do what the noble Lord proposes.
I am afraid the noble Baroness shows how little time she has spent in the small hours negotiating in the European Union. The European Union makes decisions by unanimity in the European Council in many diverse ways, quite often not actually in the Chamber. It is usually a case of three or four people who are having difficulty with a particular issue being called into the president’s room where they make the decision on whether they are going to vote unanimously—this is in terms of their own collegiate decision—and whether another person will make a deal. That is the nature of the animal and I personally understand it. It is a continuous negotiation. Votes are negotiated over and concessions are made in one area quite removed from another. In a situation like this, even seven years on under the complex circumstances in which I am considering the question, most British Prime Ministers would be reluctant to go to qualified majority voting. But the argument will be made: “It doesn’t make very much difference. Only just a little bit further. Not many more. We’ve already made this concession in some areas”. Then a great prize will be offered to them. They will perhaps be told, as we saw only a few months ago, that a new reform will be offered on the common agricultural policy—which you can be sure will be in exactly the same position seven years on. A few more spectacular inducements will be put before them. That is the way that it happens, and they make that decision. It is the only decision that really matters. It is an agreement between individuals that they will do something if the others agree to do likewise.
Then they have to come back to the House of Commons and put it to the vote, but does one think that it will be a free vote? It will be said that the Prime Minister has given his word on this issue and that this is a matter of confidence in the Government. It will be argued, “If you don’t do this, there will be some disadvantage”, because some commitment will perhaps have been given that will bring jobs to some constituency. And so up will get some MP in the debate who, as part of this wider deal, is able to say, “If the vote does not go through, there will be job losses in my constituency”. We have been through this.
It is sometimes a disadvantage in this Chamber that so many of us have served in another place—in my view, too many of us come from that place—but, every now and then, it brings an air of reality as to how decisions are really taken. Decisions on a matter as serious as this are taken as a result of a negotiation between heads of government. When they have made them, they come back. Of course, there was no particular moment when the previous Prime Minister gave assurances to the others that there would be no referendum on the Lisbon treaty, but does anyone believe that he did not make a commitment that there would be no referendum? That was the deal, and he negotiated it. He was not going to give it away unless he got various things and the so-called government red lines. He does not come back and tell everybody, “I’ve made this wider deal”. But we know that that is how decisions are taken inside the European Union.
I shall not call the noble Baroness the Lord President a word beginning with “n”, because I do not believe that it applies to her. However, I believe that, when we have to consider this, we know—and there is certainly nobody of any other party who comes to this Chamber from the House of Commons who does not—that this one vote in the House of Lords and the House of Commons is a democratic and parliamentary brake that is very much inferior to having full legislative authority. I hope that we will eventually return this Bill to the House of Commons with a clause stating that there has to be primary legislation.
I shall intervene only briefly after that powerful speech by the noble Lord, Lord Owen. If the Government reject the amendments, I can only believe that they will do so on the grounds that having primary legislation is too arduous a process. It is because it is a more arduous process that many of us believe that it is the proper democratic control of decisions of this importance.
However, there is another point to this. In those political negotiations in the middle of the night which precede the formal legislative Act of the European Council and which the noble Lord, Lord Owen, described, the fact that the British Prime Minister has a more arduous process to go through may be to our advantage. The UK may not be comfortable with many of the proposals pushed forward by the European Union. The noble Lord described compromises being reached in the middle of the night—we know that all kinds of things are agreed as part of a package—but the stronger the barriers to a British Prime Minister being able to say to his colleagues in Europe, “I cannot agree to that because I will not be able to get it through the UK Parliament”, the stronger will be the UK’s position in that negotiation. That is another important reason, on top of the UK democratic reasons—which are the most important—for making the process as arduous as possible on decisions of this importance.
This debate has ranged widely beyond the exact amendment: we have heard about parliamentary reform and the whole question of parliamentary scrutiny of the EU process as a whole. We are actually discussing important procedural changes, from unanimity to qualified voting on a number of specific issues within an EU of 27 which will in time become an EU of 30 or more. Although those are serious issues, we need to return to the amendment that we are discussing.
I say to the noble Lord, Lord Owen, that the public mood of disillusionment with politics is not a particularly British phenomenon. It is, as we saw with the French and Dutch referenda campaigns and as we are seeing now with the Irish referendum campaign, a general problem throughout western Europe. It has until the recent presidential election campaign in the United States also been a major problem in the United States. The public have been switched off from participation, distrustful of parliaments and of the US Congress. It is one of the real constraints under which we all operate.
The contradiction is made more acute for all of us by the increasing necessity of international co- operation and international negotiation not only within the EU but within a range of other regional and global institutions and the necessity of making agreements by negotiation within those international institutions which national parliaments find it hard to catch hold of and which national publics do not wish to understand. That is the contradiction with which we are faced.
In terms of parliamentary scrutiny not only of the passerelle but of Community and EU legislation as a whole, if we are going to take an increasing role for national parliaments seriously, the Government will have to help us to play our role more effectively. I take one obvious example: the long Recess between the end of July and the beginning of October. It seems to me self-evident that once the Lisbon treaty is passed, EU committees must meet in early September and if necessary Parliament as a whole must return in early September to do our scrutiny role within the confines of moving necessary collaborative decisions further forward. I hope the Leader of the House will be able to say something about that. Parliamentary scrutiny takes place through the partnership between the two Houses and between the committees and the full Chambers of the two Houses, which is the most effective form of scrutiny.
Why does the noble Lord keep promoting parliamentary scrutiny when we have seen that no scrutiny from either the House of Commons or your Lordships’ House has made any difference since the process began? The European Union completely ignores all the committees’ recommendations and we are wholly powerless. What is the point of all this scrutiny until we get the power back?
I recognise that the noble Lord, Lord Pearson of Rannoch, views the European Union as a foreign body over which the United Kingdom has no influence. That is not my understanding of the European Union, in which the British Government and British politicians, when they are effective, have influence. I have to say that I am not sure that the current British Government have a coherent European Union policy. However, I am rather more confident that the Government have a European policy than that the Conservative Opposition have one. We take part in these negotiations. We often make the proposals that the noble Lord, Lord Pearson, then attacks as having been imposed on the poor innocent British people—but that is the narrative that the noble Lord wishes to prefer. The Conservative Front Bench and the noble Lord, Lord Owen, need to be careful not to slip too far towards the UKIP narrative that the United Kingdom will usually find itself in a desperate minority against a continental cabal. That is not usually the case and it ought never to be the case. Effective British negotiators ought to ensure that it is not usually the case.
The question asked here in what is—I hope that noble Lords will agree—a less partisan and more reflective Chamber than the House of Commons is how best to fulfil our scrutiny role. The clauses that we are discussing, and in particular Clause 6, propose a number of new procedures to deal precisely with changes in EU voting procedures in specific areas without treaty amendment. It argues that Ministers will not be able to agree to these until there has been a Motion carried by each House. I trust that the Minister will assure us that, before such Motions are carried, the relevant committees of each House will have had an opportunity to consider the proposals in detail in the circumstances agreed. Those are the sort of assurances that we on these Benches want from the Government before we decide how to respond.
The noble Lord praises endlessly the Select Committee approach and the committee procedures, and he may well be justified in that, but in this case the Select Committee on Foreign Affairs of the House of Commons has made a specific recommendation that there should be full legislative procedure.
I recognise that. The noble Lord, Lord Howell, preferring on this occasion the Commons to the Lords committee—we all quote the committee that we prefer—made that particular proposal. We are talking about specific decisions in specific and confined areas in which there may be proposals to move from unanimity to qualified majority voting. As we move from an EU of 27 to an EU of 30 and more, there may on occasions be a case for making such decisions. I have heard many people in Brussels argue that the passerelle clause is likely never to be used, so it is possible that we are having an enormous argument about something that will actually never be carried into practice. The question for us to consider is whether the proposals made in Clause 6 are adequate or whether they need to have belt and braces added by the full Act of Parliament on each one, as the Conservative amendment proposes. I wait to see how the noble Baroness the Leader of the House can assure us that that will be adequately guaranteed.
I was not going to intervene in this debate, but I do so briefly, partly to defend my noble friend the Leader of the House from the rather unfair treatment that she received at the hands of the noble Lord, Lord Owen. The noble Lord’s speech was very interesting and I certainly enjoyed some of the reminiscences that it brought to mind, but it was dealing in totally different circumstances. The noble Lord should remember, as I occasionally have to, that it is 29 years since he was my boss in the Foreign Office and that in European terms a lot has changed—and changed dramatically—since I was pleased to serve under him in that Labour Government.
When we look at today’s proposals, we are dealing with nine different circumstances in which a passerelle is proposed as a possibility. Without going into every one of the safeguards in each of those nine circumstances, let us at least understand that the primary safeguard in every single case is the requirement of unanimity to the process of change that is being proposed. In most cases there are other locks on the process in addition to the requirement of unanimity. That is not the sort of circumstance that I remember the noble Lord, Lord Owen, went through. Take, for example, fisheries policy, where I know—and I had great sympathy for him—there were times when he had to sit through the night in smoke-filled rooms to get an agreement.
However, that is not the process of decision-making that is now the major challenge to the European Union. It is the sheer fact of having a community of far greater membership with the prospect of more to come, and at least having the opportunity for the overwhelming majority to be able to reach a mechanistic sort of agreement to stop any eccentric member state holding the rest to ransom on something they all want.
I think that the current proposals are eminently sensible. I tend to agree with the noble Lord, Lord Wallace of Saltaire, that they will be used relatively rarely, if at all, as their existence precludes the possibility of one state holding everybody else to ransom. In those circumstances I am totally content with the Bill as it stands. I hope to hear from my noble friend the Leader of the House that she shares my state of contentment.
I very much agree with what the noble Lord, Lord Tomlinson, has said. I would like to address my remarks largely to the noble Lord, Lord Owen. I agree with his description of how business is done; it is a long time since either he or I were at a Council meeting in Brussels, but I am willing to accept from his description that the way in which business is done has not changed a great deal, although it must now , with so many more members, be much more complicated. He overlooked one crucial point. When he talked about the whole mechanism of confessionals and people being taken to one side and deals being done, and all the rest of it, he was referring to a situation in which the outcome is fluid—in which the Ministers, whether they are heads of state in government or Foreign Ministers or whatever, are not bound by a previous decision. They are people who are in a position to deal.
I attended a great many Council meetings, albeit some while ago, and my experience of them was that if a Minister said that there was no possibility of his moving because he was bound by a parliamentary vote, a coalition agreement or something else—perhaps, as in the case of the Danes, by a vote of the very effective Folketing committee—the whole business described by the noble Lord, Lord Owen, did not come into play because the Minister concerned was not in a position to move. Indeed—
Does the noble Lord agree that exactly that situation confronted the former Prime Minister Tony Blair when he was negotiating this Lisbon treaty? He had a commitment to a referendum on the previous constitution and he could not know what would happen on this particular thing. He was committed by a decision in the general election to have that. That did not stop him making a deal which effectively meant that he committed to not having a referendum on this new Lisbon treaty.
My Lords, my understanding was that the previous Prime Minister, Tony Blair, volunteered a commitment to a referendum. Therefore, he was bound by what he said and put it in his election manifesto. That is not the same as a Minister having been bound by a vote of the two Houses of Parliament. My clear recollection of Council meetings—the noble Lord, Lord Williamson, has attended many more than I have—is that if a Minister can say that he is under strict instructions from his Parliament, or in the case of the Danes from the Folketing, or in the case of some other countries from a coalition agreement, then the whole business of the confessionals simply does not arise.
The point of the noble Lord, Lord Tomlinson, that we are talking about one brake among several, is also relevant. However, I wanted to take up the battle-hardened memoirs of the noble Lord, Lord Owen, because my battle-hardened memoirs lead me to a slightly different conclusion.
My Lords, the noble Lord, Lord Wallace, said in his remarks that the people distrust parliaments. I am not at all sure that that is right. The people distrust powerful political elites and the bureaucracies that support them. They think that Parliament is impotent in the face of those powerful institutions; that is the truth of the matter.
The noble Lord also said that he thought that the passerelles would never be used. If they are never going to be used, what on earth are they in the treaty for?
My Lords, I said that I thought it less likely that they would be used. However, the noble Lord, Lord Tomlinson, corrected me by pointing out that the circumstances in which the passerelles were most likely to be used would be, as we are now, in a European Union approaching a membership of 30 where perhaps one of the smaller and newer member states was holding out against a strong consensus. That is the likeliest circumstance. It is not the one that a number of Members of this House are suggesting, in which gallant England stands alone against a wicked Continent.
My Lords, I have never said that we are standing alone against wicked continentals. I do not think that continentals are wicked, although we are perfectly capable of standing on our own; we shall come to an amendment on that later. However, the nuances of the noble Lord’s intervention are rather different from those that came across when he made his speech.
The passerelles, which would normally be in a treaty, should, as proposed in Amendments Nos. 136 and 136A, be agreed by a proper legislative process through a Bill in both Houses of Parliament. That is self-evident. The arguments have been made for that, and I do not wish to prolong the debate on it.
We have not heard much about Amendment No. 150. It should not be in this group of amendments. Since it is, however, I shall say a few words about it. This involves the procedure for parliamentary control of decisions taken, day to day, on a large number of issues. The current situation is not satisfactory. Both Houses get notice of what is proposed, they can discuss it, but the Minister then goes over—
I am obliged to the noble Lord, Lord Willoughby de Broke, for confirming that my understanding of the position was correct. The situation is not satisfactory from a parliamentary point of view. Parliament may make a proposition; it may make suggestions; but it cannot alter decisions that have been reached by the Government. That is simply not good enough. I think the bypass procedure has been used 187 times, so Parliament has been unable to fully discuss the proposal that has been sent to it by the Commission.
The amendment proposes that Ministers should be mandated; in other words, they should not make decisions until both Houses of Parliament have properly discussed the issues and made a decision on them. That is the only way in which a democratic Parliament can work. The present situation is completely undemocratic. Ministers can go to Europe and agree by qualified majority, and our Parliament, which is all I can speak for tonight, will not be able to say yes or no to a decision which often severely affects people in this country. I support the amendment of the noble Lord, Lord Willoughby de Broke, and hope that we shall come to it on Report at a much earlier hour than it is now.
I had not intended to speak to this amendment. We have heard some significant speeches from people with wide experience who have actually sat in various committee rooms into the middle of the night. I have had none of that experience; I am simply a Cross-Bencher who knows a little about what the man in the street thinks about the Lisbon treaty and his state of knowledge on its ramifications. Someone said that the passerelle will never be used. We have to proceed on the footing that it may be used, and if so, it will be because of some important piece of business that cannot be transacted within the Union unless the passerelle bridge is crossed. It will be something significant, so I start not from a position of some fantasy that will never happen. It will one day and when it does it will matter.
I come back to what people know. The noble Lord, Lord Williamson, says that he will not use the term “passerelle”; it is good enough for him to talk about a footbridge or a narrow footbridge. Our discussion this evening would be totally unintelligible in almost any room, pub or meeting. No one would have the faintest idea that there was to be a mechanism for increasing the scope of the treaty by this method—even by unanimity. They would think that Lisbon is a done deal and that that is where we are and, if they took enough trouble, they would find out what was in the treaty. This is a route to an extension of that and, as I have suggested, when it is used it will be very important. It is entirely speculative and one could say that there is no basis for this, but I wonder what role the man or woman in the street would want Parliament in Westminster to have if and when that power is used to cross this bridge. Would they want an approval by a single vote one evening in the Commons and another in the Lords, or, as it is something important, would they prefer that it was dealt with by a more rigorous procedure where the matter could be fully debated? That procedure is by Act of Parliament. To me, the obvious answer would be, “We want the best procedure available”. The noble Lord, Lord Wallace of Saltaire, was right to draw attention to the fact that Parliament will have a new role to play—it is an absurdity—for two and a half months. This cannot possibly work if we have issues on subsidiarity, to mention just one example, arising in that time.
If Parliament is going to take a stand and live up to the role that it will be given, why do we not start now? Why do we not insist on a better class of procedure for looking at the invocation of the passerelle? If I have understood correctly the answer of the noble Lord, Lord Roper, to the question that I put earlier, there is nothing on this issue in the report of our impact assessment committee, admirable though it is. I do not think committee members focused—or were asked to focus—on whether this matter of approval in Parliament would be dealt with by an Act of Parliament or by a simple resolution. I do not think that they addressed that; they cannot deal with everything. We are on our own. This Chamber has not had that guidance. We have heard the view of a committee in the House of Commons. I urge noble Lords to adopt the amendment that has been moved.
This has been an interesting and stimulating debate on an important subject. Noble Lords have made clear that they consider this an important aspect of our deliberations in Committee and I agree.
What is very important is that this is the first time since passerelles—footbridges—came into existence, through the Single European Act of 1986, that Parliament is able to determine whether they should be used. I think that the noble Lord, Lord Neill of Bladen, is correct in looking for a better class of procedure. That is what we have acquired here. Through this legislation, we are giving Parliament the power to veto any use of a defined list of treaty-amending provisions—the passerelles or footbridges. That is extremely important. Many of our deliberations have been about what that ought to look like—whether it should be through Act of Parliament or, as we have proposed, through a vote in both Houses of Parliament. I know that noble Lords, particularly on the Liberal Democrat Benches, are looking for what has changed, in terms of how we think about that scrutiny, from when the Bill left the other place and came here. I will seek to address that.
I am conscious that, many weeks ago, I promised the noble Lord, Lord Tugendhat, that I would make sure that in my discussions on the Lisbon treaty I would be clear about the importance of Europe and the value of the treaty provisions. I think that, in principle, these provisions could be beneficial to the United Kingdom. If we wanted, for example, to make a minor change to the EU’s machinery without recourse to a full-blown intergovernmental conference, this would enable us to do so. We should not see what is proposed in the legislation from an entirely negative viewpoint. I accept that noble Lords are concerned about making sure that we have the right checks and balances. I argue that nowhere is that better done than in your Lordships’ House and in another place. As noble Lords have indicated, from their long experience in the European Union, it is unlikely that this option will be used often. Passerelles to move treaty powers from unanimity to QMV have been around since 1986 and used only once. I think it extremely unlikely that we will see great frequency of use, but the option could be of potential benefit.
Noble Lords have rightly concerned themselves with the role of the Minister, and at what point the Minister should play his role. I had an interesting exchange about that with the noble Lord, Lord Owen. He said that he wanted to use the N-word about me. I thought it was “naughty”, but actually it is “naive”. I do not pretend that I can emulate his experience from 1976 to 1979. What he should and probably does know is that I sat on the Justice and Home Affairs Council for three years and, as noble Lords have been kind enough to note today, I flew in from Peru this morning, where I was at the European Union Latin American/Caribbean conference until last night. Therefore, I pray in aid some experience of negotiations but perhaps not late into the night—the Justice and Home Affairs Council was quite civilised in its deliberations. I recognise that discussions go on between officials and Ministers outside the formal deliberations at the European Council. As noble Lords would expect, that is part and parcel of the system.
The point that I sought to make but clearly failed to make effectively is a different one. Here, we are proposing that no Minister can enter those deliberations and make any suggestion, positive or negative, until both Houses of Parliament have made it clear what the position should be. The wording that we have put into the legislation is there to capture not just votes but the kind of discussions and manoeuvres that the noble Lord recognises—and smiles at—where a form of assent is given without a formal vote. It is clear from what is in the legislation that that cannot happen in these instances. Until there has been a discussion—
No suggestion? The noble Baroness’s former Prime Minister was committed to a referendum and he told his colleagues that, if they gave way on certain matters and changed the constitutional treaty, he would commit to there being no referendum on the Lisbon treaty. We know that. That is the negotiation that took place in the middle of the night. Of course, he had to come back and win that, and in a way his commitment has been debated today. The present Prime Minister inherited the commitment made by the then Prime Minister, but it was against a commitment that he had already made to the British people that there would be a referendum.
However, here we are discussing the passerelles within the treaty under Clause 6. We are saying that, in the context of what is in the legislation, that has nothing to do with what happened in the middle of the night on the previous occasion. We are talking about what would happen if it were proposed that we should move on these footbridges from unanimity to qualified majority voting. We are saying that there would have to be a decision by both Houses of Parliament to give a mandate to the Minister in question to move on that basis. I argue that that is altogether different: it means a positive, improving and important role for Parliament.
Noble Lords have argued that that should be done by Act of Parliament and not by what is proposed; they have veered between saying that Acts of Parliament are absolutely critical and saying that we do not do them very well anyway, particularly in another place. I argue that what matters is that Parliament has appropriate and proper debate, but I do not believe that that is always possible within an Act of Parliament. Clause 6 gives Parliament the opportunity, if it so wishes, to provide the Minister with some flexibility in negotiations—for example, with regard to the date of commencement of a particular provision and so on. Parliament can determine that it does not wish to give that flexibility, while still mandating the Minister, simply by removing Clause 6(3) from the discussion. That possibility would be available to it. If the Minister were given the mandate and some flexibility by an Act of Parliament, we would have to come back and create a new Act of Parliament every time the negotiation changed. Alternatively, as noble Lords know—because they sometimes complain about parliamentary discussion of legislation which is too open-ended—there is an argument for saying that what would have to be provided for would be far too open-ended for an Act of Parliament. Therefore, I take the view that what we propose here is much better.
Noble Lords—particularly but not exclusively those on the Liberal Democrat Benches—want to be reassured that what we have proposed and considered since the issue was debated in another place is stronger. I agree completely with the noble Lords, Lord Roper and Lord Wallace, about the value and importance of both committees in terms of scrutiny. That will be essential. I appeared before the EU Select Committee in your Lordships’ House last week to talk about another issue, but we also discussed the need to consider how best to achieve greater scrutiny. I accept that.
More importantly, the conventions that would normally apply to secondary legislation, statutory instruments, and the votes and debates with which noble Lords concern themselves in relation to primary legislation—traditions and conventions that we might not vote against something—do not apply in this context. In the words of the parliamentary counsel whom I consulted this morning, this is a new power. It is different. For the benefit of noble Lords on the Liberal Democrat Benches in particular, and for noble Lords in general, I can confirm that that is where we are. Therefore both Houses of Parliament can consider this fully and properly in the kind of debates that they would wish. The length and timings of debates are for the usual channels and are not within the Government’s gift to veto, alter or change. I hope that that will reassure noble Lords who have been concerned that in moving to this, which they would support in principle, the issue that was of greatest concern, both here and in another place, was how that would be different from the issues and concerns that have normally been raised when looking for votes on the debates in question. I hope that that reassures noble Lords.
I am most grateful to the noble Baroness. Does she accept that between the original treaty and this legislation the House of Lords will, for the first time, have an opportunity to deal with passerelles, which is a new power, so the normal conventions on dealing with statutory instruments will not apply and this House would be free to reject any such Motion if it thought it appropriate?
I can confirm what the noble Lord, Lord Roper, said. This House will be completely at liberty. This is new and different. I hope that that reassures those noble Lords for whom this has been of greatest concern. I was grateful to the noble Lord, Lord Willoughby de Broke, for grouping on the Floor of the House as opposed to degrouping on the Floor of the House, which is the usual experience of Ministers. I am grateful to him and his colleagues who have done a lot of work on trying to condense some of the issues. I pay tribute to them for that.
The amendment deals with whether a Joint Select Committee would be more appropriate than what is being proposed. The noble Lord will not be surprised to hear that I disagree with that proposition. In both Houses we have experience of a way of looking at EU legislation that has served us well. I pay particular tribute to this House. The noble Lord was concerned that lots of legislation has been passed without scrutiny. I have checked this, and all proposals for EU legislation passed through the EU scrutiny processes in both Houses. Scrutiny overrides are much rarer than the noble Lord suggested. In 2005, there were 45 overrides. That was an exceptional year because as Parliament was dissolved, there were periods when the committees were not appointed. Parliament was operating, but the committees did not exist. I understand that that played a part in the number of overrides.
The noble Lord has different statistics. I was going to suggest that I write formally on this point because it is important. His concern that the committees have the opportunity to scrutinise properly is valid, and we need to take it seriously.
That is why I said to the noble Lord, Lord Willoughby de Broke, that I want to check that because figures get moved around, and we need to be clear. I was trying to demonstrate that scrutiny overrides are quite rare. My experience of them is that they are rare, but they happen. I accept that they happen. It is important, particularly as we look further at the implementation of the treaty, that we are clear about the issues and concerns that noble Lords have raised. The proposal that the Government have put forward is a simpler, better and more efficient process than an Act of Parliament. It makes sure that the Minister is bound by what Parliament says and that the process under which Ministers are bound is a new and rigorous process that involves not only the committees but also the opportunity to deal with issues on the Floor of both Houses. It is a process that noble Lords should welcome because it is the first time such a process has been put in place. It is a process to be used rarely, but it could be used in the UK’s interest. I hope that noble Lords will feel able to support it and that the noble Lord will withdraw his amendment.
My Lords, it is a pity, but perhaps inevitable, that we have been debating such a crucial matter through the dinner hour. No doubt your Lordships’ minds are turning to other things. The significance of this cannot be overestimated. I stand astonished that the noble Baroness the Lord President has been to Peru and back since we last debated these issues. I admire her stamina. I see why Ministers were talking about being exhausted. Most of Peru is 12,000 feet high and there are considerable breathing difficulties when you get there. It sometimes seems to me, listening to the Government’s arguments, that some of them are 12,000 feet high as well. They certainly give me some breathing difficulties.
The tone of the Government’s arguments, and of their supporters and apologists, has been that they cannot really imagine that this passerelle procedure will ever be used in a difficult and awkward way. They say that it has never happened in the past—there have been passerelles in previous treaties, it is perfectly true. In the words of the noble Baroness, it is all extremely unlikely. I want to get this exactly right; I wrote it down. The noble Lord, Lord Wallace, said that it may never be used—he used the word “never”; noble Lords can check that in Hansard. That is a tricky word in this sort of context. I advise him and others who go into the “never” mode—
I wish to confirm that I did indeed say “may never”. The noble Lord will remember as he was a member of the Government in 1986 who passed the first Act that introduced a similar clause to this. It has not been used very often since then. The Conservative Government had their own very good reasons for including this in the Single European Act in the British national interest. It has not been used very often. We are in a different European Union with 27 members than we were then with 12, but it is unlikely to be used very often.
The previous passerelles were not similar to the one here because the treaty will collapse the Third and Second Pillars into the First Pillar. The noble Lord used the words, “may never be used”. Even so, the “never” is not advisable. I advise him and others who think in that mode to read this very fashionable book, The Black Swan, the theme of which is that surprises always occur—that things that are not predicted, not in trend and not extrapolated and do not fit the averages always happen and shape the future far more significantly than normal processes. If he does not like that—it is a very good read—he might recall the adage of my noble friend Lady Thatcher, the former Prime Minister, that the unexpected always happens. Either way, we should be foolish as a legislative Chamber and as a Parliament to assume that because these things have not been used very much in the past and because this is similar in name to previous treaty provisions—although it is not similar in its extent and scope; it is much larger—they may never be used in the future. We should provide that it should be so.
Does the noble Lord accept the view of his former senior colleague in government in the other place, Kenneth Clarke, speaking in the debate on the Bill in the Commons at a similar stage? He referred to Mr Heathcoat-Amory’s comments that the passerelles had been in existence before:
“He has rightly reminded us that the passerelle mechanism is not new; it has been in force for years and years. Does he recall that in the Maastricht debates people were raising all kinds of fears about the way in which it would be used to take away our sovereignty by stealth? Does he accept that that has not happened? Why does he think that it is suddenly going to happen now?”.—[Official Report, 4/3/08; col. 1620.]
The comments that I have just made rather apply. I agree with my right honourable friend in the other place, who once served as my Parliamentary Under-Secretary and is an excellent fellow, when he said—I paraphrase—“Everyone but a fool knows perfectly well that this is word for word the same treaty as the previous one”. However, on this matter, I think that he is falling into the same trap. He, too, should read The Black Swan. The assumption that just because things have not happened, they will not happen is very tricky and produces a lot of surprises. I predict that this measure will be used and will produce—for some people, although not for me—all sorts of surprises. The unexpected always happens.
We come to the heart of the matter. The noble Lord, Lord Roper, who is very wise and informed in these fields, said that more than the normal convention would apply under the proposal in the Bill that there should be a Motion before both Houses. The noble Baroness spoke in detail about that. Apparently, this will all be different. She says that there is a new power and that the process will be simpler and better. All that is very interesting, but I think that we need to hear a lot more about it before we are through. It is very interesting that a new power is to be produced to cope with these unfamiliar situations.
I was surprised to hear about the detail that has apparently already been gone into and the advice of parliamentary draftsmen that this is a new power. Perhaps I should not have been surprised, but I was. Indeed, it raises a whole series of new questions. Parliamentary procedure both here and in the other place evolves and changes from time to time. It is always debated closely, because if the procedure is too loose all sorts of things can get through. We need to be very clear about all this.
The noble Lord, Lord Owen, spoke with dazzling clarity, as he nearly always does. He reminded us that the “legislative factory”, as he rather dismissively called the great other parliamentary Chamber, is not very popular and is not greatly admired for its sausage-machine activities in churning out legislation. He said that it is even less admired for the fact that a great deal of that legislation appears to be poorly scrutinised and for the fact that its Members appear to go to bed earlier than we did in our day, although he rightly warned me against the dinosaur argument that things were better in the past.
However, there is no doubt that there is no popularity in the other place or your Lordships’ House being too cavalier in letting legislation go through by this or that Motion and this or that whipped vote. Most people in this country seem to want a referendum, although we shall come to that in our debates both tomorrow and later on. The vast majority—86 per cent, according to the latest ICM poll—want a referendum. We need to be very careful, without subordinating ourselves to public opinion—we need to give leadership and experience where we can—about flying in the face of such a massive majority of people, who for a long time have wanted things to be other than Parliament appears inclined to agree to at present.
We then came to what one might call the middle-of-the-night syndrome. I was interested in the intervention that the noble Baroness made to reject the worries of the noble Lord, Lord Owen. However, I could not then understand what the Secretary of State for Justice, Jack Straw, was talking about when he said as Foreign Secretary that,
“late at night at an ordinary European Council, a decision on one other country’s milk quotas is traded for a concession on moving from unanimity to QMV … that is not acceptable”.
Of course the very fact that he said that indicates that that sort of thing goes on. I recall—I am sure that I am hopelessly out of date—that when I attended Industry and Energy Councils decades ago a great deal went on late at night and a great many pressures were exerted and trades and deals were done. If the Ministers came to a trading situation in the middle of the night, where it was raised that something might be moved from unanimity to QMV, could they act and then come back to the House of Commons, where we would ask for an Act of Parliament to validate it, and the Government would ask for a Motion of novel procedures? I am not sure whether they could act or would have to say that they could not even enter into the discussion until they had gone home and got a view from the other place. Perhaps we can clear this up at a later stage in our discussions. I am not totally clear on this procedure.
The time is pressing on. We have covered a good deal of ground this evening, largely by leaping swiftly from clause to clause. These are vastly important subjects; we are talking about treaty changes. They may be small, but they are treaty changes. These are things for which the party of the noble Lord, Lord Roper, voted in the name of parliamentary accountability and improved parliamentary control. These are not, as the noble Lord, Lord Wallace, suggested in an earlier debate, games. It is not, as the noble Lord, Lord McNally, keeps suggesting, an elephant trap. This party does not believe in trapping elephants. The comparison of elephants to the Liberal Democrats is not a happy one. After all, elephants never forget, whereas the Liberal Democrats seem to forget their policy every 10 minutes. Because of this talk of new powers, we have opened up a whole new area of questioning and issues of vast importance for the future. Something will happen and the more I hear that it will not, or is unlikely, or may never be used, the more certain I am that these matters will occur in the future. Those of us who fail to make provision will have been, as it were, the unwise virgins who failed to prepare for what is certainly going to happen, and will be very much criticised. That is why we need to return to this matter and that is why, for the moment, and clearly on those understandings, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 136A not moved.]
[Amendments Nos. 137 to 139 had been withdrawn from the Marshalled List.]
[Amendments Nos. 140 to 144 not moved.]