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European Union (Amendment) Bill

Volume 702: debated on Monday 9 June 2008

Further consideration of amendments on Report resumed.

[Amendments Nos. 28A and 28B not moved.]

28C: After Clause 6, insert the following new Clause—

“Parliamentary scrutiny of the European Public Prosecutor

(1) A Minister of the Crown may not vote in favour of, or otherwise support, a decision under the following provisions unless Parliamentary approval has been given in accordance with this section—

(a) Article 86(1) of the Treaty on the Functioning of the European Union permitting the creation of a European Public Prosecutor,(b) Article 86(4) of the Treaty on the Functioning of the European Union permitting the extension of the powers of the European Public Prosecutor.(2) Parliamentary approval is given if—

(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to vote in favour of, or otherwise support, the decision, and(b) each House agrees to the motion without amendment.(3) In this section “the Treaty on the Functioning of the European Union” means the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon).”

The noble Lord said: My Lords, proposals for a European Public Prosecutor are not new but, as our European Union Committee stated in its report at paragraph 6.209, this is the first time the structure for implementing this idea has been included in the treaties, and the inclusion of the relevant article makes it more likely that this post will one day be created. We have raised this question from time to time because it causes concern.

This amendment seeks to ensure that Parliament has the opportunity to scrutinise and vote on any proposal to set up the role of a European Public Prosecutor, or to extend his or her role. As with so many other amendments that we on these Benches have tabled, this will not in any way tie the hands of the noble Baroness the Leader of the House or force her or any of her colleagues to take action that they have not already indicated they wish to take. Along with most of the provisions that we have attempted to scrutinise, these two were utterly opposed by the Government originally. Some Labour Back-Benchers in the other place expressed their opposition to them and others in the Liberal Democrat and Labour Parties have admitted that these provisions might be a cause for concern.

I am fully aware that there is a lock on these provisions. It would be necessary for the United Kingdom to opt in to this area before there was any possibility of the public prosecutor having the right to operate here. I am also aware that Ministers say that it is very unlikely that we will ever opt in. Unfortunately, we have come to accept that we can take little comfort from such ministerial assurances. I hope I am right in saying that there can be very few remaining in this Chamber who do not accept that a parliamentary vote is a necessary and valuable safeguard to protect against any change in policy on the part of the Government or, indeed, any ministerial U-turn on a subject as important as this. Nor is it just a matter of holding the Government to their stated policy: it is also a matter of protecting the United Kingdom against the negotiating triumph that the Secretary of State claimed in the other place when 38 out of 40 amendments that the Government proposed to the treaty were not accepted.

Many of us have from time to time been troubled by the idea of the public prosecutor. These provisions are therefore worrying and their implementation will always be controversial. I very much hope that I shall be able to persuade the Minister that she ought to give an undertaking to this House that a measure such as this will never be implemented without the profound and meaningful involvement of Parliament. If she is so persuaded, this amendment would be a fast track to bring about that objective. I beg to move.

My Lords, this is, frankly, a rather strange little amendment. It assumes that we will have already opted in to Article 86 under the protocol on the position of the United Kingdom and Ireland. That is because if we had not opted in by that stage, the Minister would, of necessity, have no part in the adoption of the regulations under Article 86. Frankly, it is very unlikely that any Government of the United Kingdom will wish to opt in to Article 86 in the foreseeable future. Setting up an office of the European Public Prosecutor in the United Kingdom is in my view, and I think that of a large majority of Members of your Lordships’ House, neither necessary nor desirable. The European Public Prosecutor may well have a role to play in some other countries, as suggested by the witness mentioned in chapter six, paragraph 200, of the EU Committee’s report. The simplest way of excluding the European Public Prosecutor from operating in the United Kingdom is simply not to opt in.

If the Government wanted to opt in, the best way to provide for parliamentary procedure would have been to require parliamentary consent to the opt-in rather than at the point at which the United Kingdom has to vote on the proposal. But your Lordships’ House has decided today not to require a parliamentary procedure in the Bill for opt-ins under Article 3 of the protocol, which covers opt-ins under Article 86 of the Treaty on the Functioning of the European Union

For the reasons given by several speakers in the debate on Amendment No. 25, which I will not repeat, I think that that decision was correct. I therefore see no justification for treating the opt-in to the European Public Prosecutor as requiring any different treatment by imposing a parliamentary process at a subsequent stage.

My Lords, I am grateful to the noble Lord, Lord Goodhart, for setting out so clearly what was agreed earlier today, which applies to this, too. I agree with everything that he said. We have secured legally watertight safeguards in the treaty against any move towards a European public prosecutor or subsequently, and just as important, towards extending that prosecutor’s role. It is what we would call a double lock. We do not see any need to do anything different from what we have already achieved.

Lock number one, as the noble Lord, Lord Goodhart, said, is that we apply the UK opt-in. That means that the procedure that I outlined earlier today for your Lordships’ House and another place would apply. The proposal would go to the committee and it would be part of the discussions that noble Lords would have in the annual report if we were aware that it was coming. There would be discussions in the committee, which could refer the matter to your Lordships and a vote could be taken, of which the Government would take note.

I agree with the noble Lord, Lord Goodhart, that it would be extremely unlikely that we would choose to opt in to such a proposal in any event. However, if we did opt in, if the matter went through that scrutiny-plus procedure, as noble Lords have referred to it, and if we did end up finding ourselves discussing the possibility of establishing the European public prosecutor, we would still have unanimity, which is retained for any decision to establish a prosecutor and to extend the powers of such a prosecutor. So there is a double lock. The opt-in procedure applies, Parliament will let its views be known and the Government will put forward their proposals. The Government would then, if they so chose, which is highly unlikely, have the discussions and could determine by unanimity if they did not wish to participate. That would be the end of that.

As noble Lords will know, under enhanced co-operation, if at least nine other states wish to proceed, they can. That does not affect the United Kingdom in any way, shape or form. It is quite right that the Lisbon treaty gives member states the flexibility to proceed if they choose, but, even if they did, the European public prosecutor would have no role in the UK. On that basis, I hope that the noble Lord will feel that there are enough safeguards clearly written into the treaty and the procedure to feel comfortable to withdraw his amendment without fear that this is something that would happen by the back door or in any way that he would not be aware of.

My Lords, this is very much a front-door amendment because it seeks to introduce a test and a third lock, to use the Minister’s terminology, of parliamentary approval. I do not want to go back over previous debates, although they have been referred to by the noble Lord, Lord Goodhart, and by the Minister, but I really ought to correct what the noble Baroness said about noble Lords describing the procedure that she outlined earlier as “scrutiny-plus”. I thought that the most effective description of that procedure came from my noble friend Lord Jopling, who pointed out that it is very much a second-tier, or second-class, system. What can be better than requiring parliamentary approval?

The Minister seeks to persuade me that this is never going to happen. She is saying, “Please don’t concern yourself with seeking to entrench parliamentary approval first, because it will never be required. This will never trouble Parliament, because it is not something that will ever happen”. I recall that, when the noble Lord, Lord Goodhart, and I sat on a sub-committee of the European Union Committee, we used to hear evidence from time to time about the efficiency that would be introduced by some form of cross-border justice system. Both he and I had a healthy scepticism of any such move in that direction. I suppose what I am seeking to do here is to say that there are a number of other situations where parliamentary approval would be required. After all, all this amendment does is to say that—

My Lords, my apologies for interrupting the noble Lord, Lord Hunt. I do not wish to second-guess the Minister, but I do not think that she said that a proposal for the European public prosecutor would never happen and would never come forward. She was talking about the safeguards if it ever did. Does the noble Lord accept that the fact that Eurojust is being strengthened under Article 5 of the treaty shows that there is a strong need to enhance the capacity for cross-border investigations and prosecutions in the EU? The fact that Eurojust is being strengthened should weaken the argument for a European public prosecutor. If we can get Eurojust to work as an EU institution—the legislation is going through now to make it an EU body as opposed to just an intergovernmental one—that should, if not obviate, at least weaken the argument for a European public prosecutor. Eurojust has been led by a British official for some years. I am not saying that no one will ever put forward a proposal for an EPP, but that is less likely with Eurojust being strengthened, enhanced and made more effective.

My Lords, I find myself very much in agreement with the noble Baroness, Lady Ludford. Eurojust’s mission is to support and strengthen co-ordination and co-operation between national investigating and prosecuting authorities in relation to serious crime affecting two or more member states, or requiring prosecution on common bases—on the basis of operations conducted and information supplied by the member states’ authorities and Europol. Of course, the European Parliament and the Council are empowered to adopt regulations to determine Eurojust’s structure, operation, field of action and tasks. Those tasks include the co-ordination of such investigations and prosecutions and—the noble Baroness is absolutely right—strengthening judicial co-operation.

There are still moves to establish this office of European public prosecutor, of which we are all aware. The Minister may be right in saying that they will never come to fruition with regard to the United Kingdom and that there are double locks. However, I go back to our earlier debates and say that there is nothing quite as good as requiring parliamentary approval. That is why I seek to test the opinion of the House.

28D: After Clause 6, insert the following new Clause—

“Parliamentary scrutiny of the merging of the offices of the Presidents

(1) A Minister of the Crown may not vote in favour of, or otherwise support, a decision under any article of the Treaty on European Union or the Treaty on the Functioning of the European Union that relates to, or in so far as it relates to or could be applied in relation to, the merging of the office of the President of the Council with the office of the President of the Commission unless Parliamentary approval has been given in accordance with this section—

(2) Parliamentary approval is given if—

(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to vote in favour of, or otherwise support, the decision, and(b) each House agrees to the motion without amendment.(3) In this section—

(a) “the Treaty on the European Union” means the Treaty establishing the European Union, signed at Lisbon on 7th February 1992 (as amended by the Treaty of Lisbon), and(b) “the Treaty on the Functioning of the European Union” means the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon).”

The noble Lord said: My Lords, this subject was to some extent covered in Committee in a rather dismissive debate. It is the question of the new presidency roles that are being created, a matter about which the noble Lord, Lord Wedderburn, who is not in his place because he has not been very well, warned us to be very careful when it came to agreeing to Bills creating new presidential posts, particularly those where the job specification remains gloriously uncompleted. The debate in Committee confirmed that it is yet to be decided exactly how these roles will be fulfilled and how they will work. There are some sketchy propositions in the treaty, but that is all.

In Committee it was asserted that the unity of the two posts was unthinkable, that no one was advocating it, that it could not happen under the treaty and so on. It is not quite like that, and we need some more reassurance because it would be sad if—looking back on this time, should some of the predictions that there will be a merger of the two come to fruition—we in this Parliament were criticised for failing to be on our guard. The much quoted Valéry Giscard d’Estaing said:

“We will probably have to have at least two executives in the beginning, but the process of reform will not be complete in 12 months”,

implying that it would be completed. The Italian Prime Minister said:

“We should ask ourselves whether it makes sense to maintain two presidents of the executive, one for the Council and the other for the Commission, or whether it would be better to have a single office, presiding over both institutions”.

The idea is around, and it is not true to say that there is no question of it. We need to be reassured on it.

This amendment simply urges that we should have one more addition to the famous list of passerelle-guarding provisions in Clause 6. We shall come to a good many more of the passerelle issues that somehow got left out of Clause 6. We tried one earlier this evening and, as the noble Lord, Lord Goodhart, reminded us, this House voted the other way, so those provisions, which were more strictly defined as opt-in provisions rather than as passerelles, were excluded. However, this would be a good one to have in the Bill. It is puzzling to know who decided which of the many provisions and passerelles in earlier treaties that are included in the Lisbon treaty should be listed in Clause 6 and which should be left out. That is a puzzling issue, and I shall share some thoughts about that matter with your Lordships in the next amendment. In the mean time, this amendment would be useful and reassuring, and when it eventually happens, if it does, or when the pressure comes up for it, it would prevent future commentators turning round and criticising us for not being on our guard and at least seeking some reassurance that Parliament will be fully involved when and if it occurs. I beg to move.

My Lords, the good book talks about making bricks without straw. I remain wholly puzzled about the proposition the noble Lord has put forward. I well understand the need for probing—it is the job of any opposition, and the Opposition are doing it thoroughly—where there are uncertainties, lacunae, matters to be uncovered or potential dangers foreseen, but this is not one of those matters. In no way can the treaty be clearer about the proposition. The treaty was quoted in Committee. The president of the Council cannot also be President of the European Commission. The treaty makes clear that:

“Members of the Commission may not during their term of office engage in any other occupation”,

and that they,

“shall neither seek nor take instructions from any Government or from any other … body”.

So there can be no uncertainty about the matter. It is crystal clear and I hope we can skate speedily over this non-issue.

My Lords, the last thing that anyone will criticise Her Majesty’s Opposition for is taking insufficient account of every nightmare, frisson and other possibility that is around, because the list of amendments that we have discussed runs through the whole gamut and beyond. The noble Lord, Lord Howell, can feel confident that no one will ever accuse him of that. However, as the noble Lord, Lord Anderson, said, the treaty itself is extremely explicit so far as the responsibilities of the President of the Commission are concerned, in a way that seriously and totally precludes the sort of nightmare scenario suggested in this amendment. I would have thought—the noble Baroness the Leader of the House can no doubt confirm this—that in order for this to come about, you would have to change the treaty. In which case you do not need this amendment, because if you change the treaty you will have to have the full ratification procedure as laid down, as we are now painfully but enjoyably undergoing in this House.

If the noble Lord receives sufficient satisfaction from the Leader of the House I hope that he will feel able to withdraw the amendment.

My Lords, the justification for moving the amendment is not that this is likely but that “the idea is around”. A great many ideas about European integration are around. During the dinner hour I ran across the noble Lord, Lord Pearson of Rannoch, on his way home and I upbraided him for going home. I was imagining that if he had stayed here he might have wanted to raise the question of whether it was possible to envisage a European federation eventually having a European emperor. After all, there are some candidates for this—a Hohenzollern or two, a Bonaparte and a Habsburg. Some of us have met Otto von Habsburg, who was a Member of the European Parliament for the Christian Social Union in Bavaria. Some noble Lords may also remember a wonderful story. He was asked one evening whether he was going to watch the Austria-Hungary football match. He said, “Yes, perhaps I will. Who are we playing against?”.

The fact that these ideas are around does not necessarily mean that we should be taking them seriously. In the Daily Mail this morning, Melanie Phillips tells us that the European Union is incompatible with democracy. The idea is around. Should we take it seriously? There are some on the Conservative Benches who do take that seriously, but I trust that the noble Lord, Lord Howell, does not.

My Lords, I shall do my best to be clear with the noble Lord, Lord Howell, and not to be in any way dismissive. What I interpreted from our previous discussions, as noble Lords have just done, is that there is very little to say on the matter, because the treaty is so clear. It is therefore difficult to extrapolate in great detail. Let me say that noble Lords who have just spoken are right that the treaty is clear. Article 245 of the treaty on the functioning of the European Union states:

“members of the Commission may not, during their term of office, engage in any other occupation”,

as my noble friend Lord Anderson said. Article 17(3) of the treaty on European Union says that members of the Commission, which includes the president,

“shall neither seek nor take instructions from any Government or other institution, body, office or entity”.

If we have three positions and two of them are forbidden to hold any other role, then—unless my logic has gone completely astray—you cannot double hat any one of them. There are not enough of them to achieve that.

The first proposition is that the treaty does not allow it: it is not a question of interpretation and there is no ambiguity; it is absolute clarity. Equally under the treaty there is no provision that we could do this by any passerelle provision: it is not there and does not exist. Indeed, as the noble Lord, Lord Wallace, has said, the only way that the two posts could be merged would be by a treaty change and that could happen only via an Act of Parliament, because this would be an EU amending treaty and it would have to be approved by an Act of Parliament.

Noble Lords opposite have said that in their view, the most positive way to ensure that nothing that they are fearful of happens is by Act of Parliament; here it is. I hope that the noble Lord will withdraw his amendment.

My Lords, I thank the noble Baroness. I say to the noble Lord, Lord Wallace, that the old jokes are definitely the best and I look forward to more old jokes from that direction.

I am a bit reassured by the noble Baroness that, although this raises a much broader question, in the treaty and the Bill as they are presented to us, the ideas that I have been taken to task for saying are around—and they certainly are; I have many more quotations that I could bring to your Lordships’ attention, but I shall not—are unlikely to happen, or could not happen, without changes. I am interested that she thinks that there is no loophole through the passerelle system, but that it would require a new treaty or a major amendment to the treaty and an Act of Parliament. That is the kind of language that we like on this side of the debate. One of our worries—this is almost bringing me on to the next amendment, so I shall say only a few words—is that this is a very open-ended treaty. It is a treaty made of that substance—amoebic jelly, or something—that keeps expanding in horror films. One just does not know what kind of powers can be introduced and at what point.

In a moment, I will come in detail not only to the passerelle loophole, but to others and to the question repeatedly asked from this side of whether our constitutional system, our Parliament, has enough control over the movement and redistribution of powers in the European Union. Some of them may be unfavourable to us; some of them may be helpful. That is the background against which one still asks whether we can have the total reassurance that we require. The noble Baroness is in a reassuring mode, and I am reassured by her, at least for the moment, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

28E: After Clause 6, insert the following new Clause—

“Parliamentary scrutiny of measures necessary to attain Treaty objectives

(1) A Minister of the Crown may not vote in favour of, or otherwise support, a decision under Article 352 of the Treaty on the Functioning of the European Union that permits the adoption of a measure necessary to attain one of the objectives set out in the European Union Treaties, in cases where those Treaties have not provided the necessary powers, unless Parliamentary approval has been given in accordance with this section.

(2) Parliamentary approval is given if—

(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to vote in favour of, or otherwise support, the decision, and(b) each House agrees to the motion without amendment.(3) In this section “the Treaty on the Functioning of the European Union” means the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon).”

The noble Lord said: My Lords, we now come to a more elaborate and important amendment, which concerns the matters about which I have just been speaking on the previous, much smaller amendment. I want to bring into the Clause 6 world the passerelle provisions and the accountability provisions—measures to ensure parliamentary approval of provision for the EU to adopt measures to obtain treaty objectives.

That sounds like yet another debate on passerelles but of course it goes much further than that. We now have another article—I hesitate to state the number because in my copy of the treaty it is Article 308, but I believe that it has somehow become Article 352. That has received curiously little attention, but it is an article that we should discuss and consider carefully if we are to attempt to do our duty in examining the whole Bill properly. The article, which in my version of the treaty is Article 308, but which I think has become Article 352, states:

“If action by the Union should prove necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament”—

a body about which we have heard an awful lot recently—

“shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament”.

Could we have some real illumination of the real implications of that, what it might mean in the future and what we are signing up to? It is not very clear, it needs to be clear and we need to have the right clarification on the record.

In addition, I have some comments on the objectives of the treaty and the powers that can be mobilised to achieve them. We had a very interesting debate this afternoon. My noble friend Lord Hunt made a brilliant speech—alas it did not carry the day in votes, but it was brilliant all the same—on the proposals in the amendment tabled by the noble Lord, Lord Goodlad. The debate was really all about whether opting in should have the same parliamentary brakes on it and the same statutory controls in the Bill as the other passerelles in Clause 6. The House decided that it should not.

The excellent report of the noble Lord, Lord Goodlad, also reminded us of what might be called the hidden worry about the treaty: the whole range of other passerelles that it has inherited from past treaties and that are not listed in Clause 6 and are not in the Bill. There is a whole string of them. After the debate, I learnt by looking at a document that had been deposited on my desk that the Government had replied on the Bill and the treaty of Lisbon implications for the UK constitution. I refer to the report of the Constitution Committee, which unfortunately had not reached me. Ministers may say that that is the incompetence of my not-very-large organisation, that it should have reached me and that it was tabled and reached the Printed Paper Office, but I felt it rather sad that it did not reach me until this afternoon after the debate. I may be wrong. Perhaps the noble Baroness referred to it in the debate. I am not sure whether she did. Perhaps she could tell us when she comments in a moment. Here it is, and it is full of information that I wish I had had—I also wish my noble friend Lord Hunt had had it because he did not have it either—for this afternoon.

I shall concentrate in particular on the information that was prompted by the comments in the report by the committee of the noble Lord, Lord Goodlad, which suggests that past issues under the parallel procedures should also be taken into account. Indeed, the report says:

“We call on the Government to provide a list enumerating all these provisions in order to allow Parliament to consider during the passage of the Bill whether each one should or should not be subject to parliamentary control under clause 6”.

That is quite an important statement, which did not feature very much this afternoon. If I had known the nature of the Government’s reply to it, I would have certainly urged others to raise it or raised it myself. It tells us that there is indeed a big and powerful list of issues that allow treaty changes without resort to any kind of intergovernmental conference.

There is the provision in the first paragraph, which allows the European Council by unanimity—that is quite fair; I am not making QMV points at this stage—to amend the number of commissions. That is an old one, but it is there still. There is the provision that allows the Council to strengthen or to add to citizens’ rights. That is an important provision that comes from a previous treaty—the Maastricht treaty—and is there still. One is always open to the gibe, “Why didn’t you think of more accountability on that at the time of the Maastricht treaty?”. “I do not know, I cannot remember”, is my answer. Now that we are piling up these provisions, which allow the treaty to be elasticised and expanded, we are starting to become anxious about it, and rightly so.

There is the provision that allows the Council to confer jurisdiction on the European Court of Justice in disputes relating to legal acts creating EU intellectual property rights. We did not hear much about that this afternoon; yet here is an important provision, again inherited I think from the treaty of Nice but one that could be used in the future and that allows an extension of the powers and involvement of the ECJ. Another provision allows the Council to add to the list of criminal offences defined at EU level and, again, every member state must agree, but there it is. A “member state” means a government in the European Parliament—not the national Parliaments, incidentally—so that one could be flicked through. There is a provision that allows the Council to add to matters for which directives can be made on criminal procedural law. Again, member states must agree in the European Parliament. Another provision is to extend the European public prosecutor’s powers to include serious crime having a cross-border dimension; and so on. I quote:

“Each of these passerelles is limited to specific and clearly demarcated policy changes”.

As I have emphasised, they do not provide a specific move from unanimity to QMV, although presumably under other parts of the passerelle machinery they could be moved from specific unanimity to QMV.

So I have a little complaint. It is fair enough for the Government to confine their own information to the debate and everything else, but we are trying to improve this Bill. So far we have not had all that much success because zero amendments have been achieved, but even by our debate, if not by voting things through, we are trying to improve it. It would have been helpful for those of us who have the honour, the privilege and the duty to move these various amendments in order to fulfil our line-by-line examination and duty to get the right documents at the right time.

I repeat that this document arrived on my desk after the debate on the committee’s report this afternoon. I do not think that that is right. But that is probably background to the broader issue of the need to look very carefully at the ways in which the powers exist and can be expanded, developed, lengthened and strengthened for achieving the treaty’s objectives, and how that can be done with or without proper parliamentary control. We prefer it to be with effective parliamentary control and not too much power for the Executive. Others have a different view. I understand it, but I think that it is wrong and out of date. In the mean time, I beg to move.

My Lords, following the remarks of the noble Lord, Lord Howell, one is bound to express some sympathy. It is always very awkward for any Members, particularly those who are proposing amendments, not to have the chance of seeing crucial documents at the right time. I do not seek to interfere or to explain the background because I am not aware of it. However, in contrast to that, throughout our proceedings in Committee and on Report I have found—I think that other noble Lords would echo this—that the Government have been very assiduous and efficient in making sure that Members are well informed in advance on all the modalities and matters to do with any amendments that are tabled and so on. So I repeat my feeling of surprise that that has apparently happened and I, too, look forward to hearing the explanation of Leader of the House in answer to the noble Lord, Lord Howell.

I do not wish to embarrass the noble Lord, but I also have some sympathy with him on his initial remarks about Amendment No. 28E. As he said, this refers to Article 352 of the TFEU, which was originally the famous Article 308. Bearing in mind that on the previous amendment my noble friend Lord Wallace said that the noble Lord, Lord Pearson, had apparently gone home, I couple my surprise and sympathy for the noble Lord, Lord Howell, with shock because the noble Lord, Lord Pearson, used regularly to raise the famous Article 308 matters in legislative proposals and in parliamentary Questions. For him to miss this opportunity on such an important matter seems to be surprising.

Noble Lords will remember that the famous old Article 308 gave those extra powers to the Union or the Community and the Council of Ministers to make decisions where there was nothing covered in other treaty articles and provisions. The flexibility clause, as it has been named colloquially, gives the Union institutions the ability to adopt measures to achieve one of the objectives set out in the treaties where the treaties themselves do not provide the necessary powers. This means the Council acting by unanimity in adopting the measures and there is, therefore, always the use by member states of the national veto if that is deemed to be necessary. One would expect that to be a very rare occurrence.

The flexibility of the clause therefore is more to do with competence and implied powers of the Union rather than the flexibility of the interpretation of the treaty articles or the flexibility of member states to opt in or opt out of the provisions. The noble Lord, Lord Howell, alluded to a number of changes made to the article. In particular, the phrase,

“the objective of the measure is in relation to the internal market”

has been removed. The original justification for Article 308 was to deal with those matters in the internal market provisions that were not going to be covered by other treaty articles. There was a good deal of United Kingdom sympathy for that, because of our deep affection for the single market and the creation of the internal trading market of the European Union. This contrasted with our objections about extending powers in other areas of the Community’s endeavours in future legislation. The article has since been expanded to state that national parliaments will be informed of the proposals of any measure that will not lead to harmonisation of the laws of the member states. The article cannot serve as a basis for legislation in relation to CFSP.

Sometimes there are misunderstandings in these matters. One can range over a number of issues that come up in respect of this article and other examples not related to this. I have—quite legitimately—come into possession of a copy of a recent ministerial letter to a noble Lord. I will not name the Cross-Bench Peer. I tried to find him this evening to ask if I could mention his name. I could not find him and therefore, for what I am sure are understandable reasons, I prefer not to name him. The ministerial reply is dated 29 May. It is from the Government and concerns the anxieties of the noble Lord, Lord X, about whether, if one burned the European Union flag, one could be prosecuted under UK law for stirring up racial hatred or animosity. The ministerial reply states:

“I can confirm that, in itself, burning the European Union flag would not lead to prosecution under racial hatred legislation in the UK. Where the flag belonged to someone other than the individual who set fire to it, it might be possible for the individual to be prosecuted for criminal damage. In addition, if the individual’s behaviour more generally was deemed to stir up hatred or public disorder, their actions might be investigated with a view to prosecution”.

It continues:

“If a directive in this area were to be proposed under the Lisbon treaty, the UK opt-out would apply”.

Noble Lords getting into such phantasmagorical territory as the voluntary or compulsory burning of the EU flag in order to make a point against the European Union seems to us on these Benches utterly daft. What on earth are people anxious about in the rational development of the modern European Union of 27 countries’ machinery to make the working of the Union effective? One must have that essential machinery: that is what the Lisbon treaty Bill is about.

I find the anxieties about Article 352 also to be overstated by people thinking that it is an “open sesame” to any agreement on extending powers. After all, it has to be by unanimity—we need to keep reminding ourselves about that. Some noble Lords, because of their original views and antipathy towards the European Community and all its works, get carried away with a lot of nonsense on these occasions. We were reassured on 13 March by the famous Lisbon treaty impact assessment of the EU Select Committee, of which I have the honour to be a member. It stated:

“Article 352(2) of the TFEU, which applies the yellow card procedure expressly to measures under Article 352, (the ‘flexibility clause’ … ) does not add anything of substance. Proposals adopted on the basis of Article 308 are no different from other proposals and fall under the subsidiary monitoring procedures without any special article. … The reformulation of Article 308 to exclude the reference to ‘the operation of the common market’ makes clear that, in future, new Article 352 can be applied to any area of the EU’s activities—except CFSP”.

I think it is fair to say that the Committee did not sound worried about that. It seemed to be a common-sense addition, as the growth of the treaty has meant other activities must be covered. As the Lisbon treaty puts it beyond doubt that the Article 308 machinery does not allow the EU to expand or circumvent the limits set by the treaties—

“Measures based on this Article may not entail harmonisation of Member States’ laws or regulations in cases where the [treaties] exclude such harmonisation”—

I am reassured, and I think that Members on these Benches are reassured, by these welcome declarations.

The further clarification we have is that not only is CFSP excluded, which has reassured a number of noble Lords in recent debates, but that the consent of the European Parliament is also now required. Personally, I welcome that, but I accept the suggestion of the noble Lord, Lord Howell, that it needs to be explained more thoroughly by the Government. Finally, we have a veto. There is a famous obsession with vetoes, but in this case it might be justified depending on what matter needed to be vetoed in the future. In the mean time, we feel that it is not necessary for the amendment to be pressed tonight.

My Lords, the amendment relates to an article which is not even Article 308, which has been referred to so often, but to Article 235 of the treaty of Rome. It is something of a miracle that the authors of the treaty of Lisbon have managed to arrange the same three figures in a different order. I am sure that if the noble Lord, Lord Pearson, had been in his place he would have told us that it had some cabbalistic significance equal almost to 666 being the sign of the devil, but he is not here so we shall be spared that. However, it is Article 235 of the Rome treaty which noble Lords opposite ratified along with the rest of us when we joined the European Community, as it then was.

Is it a passerelle? No, it is not. A passerelle is a provision that enables the Council to change something in the Lisbon treaty without going through the whole process of treaty change. This provision does not allow that. It allows the Council to do something which is not provided for in the Lisbon or any other treaty if, by unanimity, the Council so wishes to do it. That is not a passerelle, I am sorry to say, so it is wrong to call it that. It is a provision, I agree, that allows for some flexibility, and in the past it has been used—quite often, or in fact invariably—with the agreement of this country because it has been seen to be in our overall interest. Since it requires unanimity, I have no doubt that that is the touchstone that will be applied in the future.

As to the past passerelles of which noble Lords have been reminded by a letter from the Leader of the House, I say merely that it is an admirable thing to have done. It is quite right to remind us that they exist, but they are not in any sense sinister. They are something to which successive British Governments have agreed over the years and fall, therefore, under the rubric of pactus sunt servanda, which now that the Mayor of London is favouring the use of Latin in schools, will perhaps come to be more regularly understood and less mocked than it has been in the past. It is a fairly important aspect of the way the European Union works. It is right that the Government have reminded noble Lords of the existence of these passerelles—they are passerelles that have been agreed in the past—and how they continue to exist, but I do not think there is anything sinister about them. I hope that, on reflection and in the light of assurances given by the Leader of the House, the noble Lord will feel it is possible not to proceed with the amendment.

My Lords, this is one of the most significant provisions in the treaty and it is sad that having run out of time to discuss it in Committee, we are now considering it at this late hour on Report. The noble Lord, Lord Hannay, says that it is not a passerelle, but this is a measure which allows the EU, through the Council, to extend its competences. Under this clause, the EU can take powers to pursue its objectives where the treaties do not provide for them. As we know, the objectives are set out in very broad terms in Articles 2 and 3 of the treaty, and at the moment at the end of Article 3 it states:

“The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the treaties”.

So it is limited to the competences in these treaties.

We have heard a lot about the fact that the competences of the EU are only those set out in these treaties. Lo and behold, we now have an article which says that if there is a competence that the EU needs to pursue those objectives but which is not set out in the treaties, we can decide to adopt that competence. I do not find much reassurance in the constraint that if the treaty says you cannot harmonise laws, then it cannot be used to harmonise laws. I am aware of only a small number of cases where the treaty specifically prohibits harmonisation of laws—some under the area of freedom, security and justice—but I do not think most competences that the EU might want to take on are covered by that restriction. Yes, it excludes defence and foreign affairs, for which we should be grateful, but that still allows huge scope for extension of competences to achieve these very broad objectives in Article 3 for any measures that the EU wants to take which are not currently set out in this treaty.

It is true that Article 308 provided very similar powers and the noble Lord, Lord Hannay, is right that those went back to earlier treaties, but they were, as was described earlier, constrained in the wording of the earlier article by the need for the measures to be necessary for the operation of the Common Market or the internal market. That is a very different scope from a clause which removes that condition and allows any competence to be taken on board to meet any of these very broad objectives which, I remind your Lordships, include things such as achieving a highly competitive social market economy, social progress, technological advance, and solidarity between generations. There is no end of things that could be taken on board to meet those objectives under this clause.

As we know from the inquiries made by the noble Lord, Lord Pearson, of various Ministers across the Dispatch Box, Article 308 has been used in the past to provide measures which went beyond the internal market because, although we are told that the European Court never exceeds what the treaty says, the law has been interpreted here in a very permissive way to allow Article 308 to be stretched beyond the original meaning. In that sense, this clause tries to legitimise the abuse that has been made of Article 308 in the past, but in doing so it not only legitimises that position but opens up huge opportunities for further development of competences under this treaty. To my mind, that would traditionally have needed a new treaty. Extending the competences of the European Union should not happen without a proper treaty. This article allows it to be done by unanimity, but by the Executive.

The whole purpose of these amendments is to ensure that there is proper parliamentary scrutiny of things which otherwise would have required treaties. I am amazed, and would have brought this up in Committee if we had discussed it, that this is the one huge provision which is not included in the Bill under Clause 6, where the Government believe that parliamentary control of decisions is needed. Paragraphs (a) to (i) are listed but the biggest gateway to the adoption of new competences is not apparently seen as worthy of the same level of parliamentary scrutiny as the other decisions listed under Clause 6. I believe it should be. If the Government were to add it to the provisions in Clause 6, that would be a satisfactory measure. In the absence of that, I believe that this amendment is essential to protect proper parliamentary scrutiny of the treaty. If my noble friend is not satisfied tonight, I very much hope that he might consider bringing this back at Third Reading. I think it is far too important to pass at this late hour without proper debate.

My Lords, I have a somewhat different view and interpretation of Article 352 from that of the noble Lord, Lord Blackwell. He said that it allows the EU to take any measure that it wants. I do not think that that is correct. I would even take issue with his description that it allows the EU to extend competences. It uses the words:

“If action by the Union should prove necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties”.

This has to fit within a policy in the treaties to obtain one of the objectives. I do not think, therefore, that you are extending competences if you invoke Article 352 and it certainly does not apply to any measure that the EU might want to take.

We have had a lot of talk this afternoon and this evening about double locks and triple locks. I think that there is a seven-part lock on this article. The first is the use of the word “necessary”, as opposed to “useful” or “desirable”. I am sure that there would be litigation over the term “necessary”, if necessary. Then you have this criterion referring to action,

“within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties”.

That is the second lock. Then you have the need for unanimity, which means a veto, including by the UK or other member states. Then you have to obtain the consent of the European Parliament. Then there is the yellow and orange card procedure for national parliaments. I would say that, with the European Parliament role and the national parliamentary role, there is proper parliamentary scrutiny, as well as what would happen at Westminster under whatever procedures are agreed here. I do not accept that there is no proper parliamentary scrutiny. Then you have Article 3, which the noble Lord dismissed. I happen to think that it is quite important. It states strongly and clearly:

“Measures based on this Article shall not entail harmonisation of Member States’ laws or regulations in cases where the Treaties exclude such harmonisation”.

Finally, as has been said, this cannot be used to extend the CFSP provisions or, indeed, something do with Article 40—I think that it is to do with agriculture, but I am afraid that that is outside my pay grade. I just submit that there are considerable safeguards within Article 352. The noble Lord, Lord Blackwell, described it as meaning that you can just come along and say, “We want to do something else”. That is a misrepresentation of Article 352.

My Lords, I am grateful to all noble Lords who have spoken. I begin by making clear what happened with the response to the Constitution Committee report, which was published last Wednesday. Under the usual procedures of the House it was sent to the clerk to the committee, with copies for all committee members. Copies were placed in the Printed Paper Office, where noble Lords have been able to find it since last Wednesday. It was sent to the Libraries of both Houses. I also asked that it should go to Members who had spoken in debate. I will have to check whether that happened, as I have not had a chance to go back to my office. Certainly, all the usual procedures of how we publish a document were followed. I referred to the response at least once earlier in today’s debate. I am sorry that the noble Lord, Lord Howell, found it on his desk. I am not suggesting that he was implying that that was my fault, as it certainly was not. I have obeyed, as noble Lords would expect, every process. In fact, I have done everything that I can think of to inform noble Lords, including copying every letter to everybody. Every process has been adhered to extremely strictly. I hope that the noble Lord will accept that that was the case.

While noble Lords were talking, I was just reminding myself of what Article 352 says. When we talk about it, it is important to consider it in the context of what the words actually mean. I am just going to read a little bit of what Article 352 says. It is the updated version of Article 308, which I know has been an issue that scrutiny committees in your Lordships’ House and another place have raised before. Noble Lords referred to the noble Lord, Lord Pearson of Rannoch. He is not the only one, but he is certainly the most assiduous person in this. I am sorry that he is not here, but that is his choice, as indeed it was the choice of noble Lords opposite to debate this amendment at this time of night. We have a whole day left and, at the moment, only one amendment down. We could certainly have discussed this much earlier in the day if noble Lords had wished to, but the choice was not mine.

The article says:

“If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures”.

There are quite important caveats built into that: unanimity; the proposal from the Commission and consent of the Parliament, which is new; and making sure that it is concerned with what is provided within the treaties and not beyond. Noble Lords will know that that has been important from a UK point of view in, for example, providing financial assistance to third countries, including Lebanon and Georgia, where we were concerned to ensure that there was macroeconomic stabilisation. So there is a value to this article—formerly Article 308, now Article 352—in helping us to address issues that could not have been foreseen but are absolutely within the treaty, and in ensuring that the safeguards are completely clear.

As noble Lords have said, let us be clear as to what those are. I have described one as unanimity, which means that the UK—and any other member state—can say no. We have talked about the consent of the European Parliament, so the democratic institution in Europe will have the right to say yes or no. Of course, as the noble Baroness, Lady Ludford, mentioned, national Parliaments will be able to play what have become known as yellow or orange cards; they could be used in this context, to raise concerns with the Commission and for Parliaments to say that this is not a way forward that they find acceptable. The noble Lord, Lord Hannay, made it clear that it is not a passerelle. It does not change the treaty, because it can only be used to give effect to a treaty objective: something that has already been determined. I have outlined what the procedure would be.

The Government’s position is clear. We have listened with enormous care to the scrutiny committees. In our response to the Constitution Committee, we have also made it clear that every explanatory memorandum submitted to the committees for proposals with what was Article 308 as the sole legal basis has contained an explanation of the justification of the use of that article. We will continue in exactly the same vein under Article 352.

There is a welcome clarification in what has been described under Article 352. The procedure that will be used and the consents that will be needed are clearer. As I have already indicated, we of course have a veto on it. I therefore hope that the noble Lord will feel able to withdraw his amendment.

My Lords, I am most grateful to the noble Baroness, and quite accept that if my postal systems are not all that marvellous and things come through slowly it is nothing to do with her; it is my fault. However, my noble friend Lord Hunt, who has been intimately involved in the handling of the Bill throughout, has still not received his copy either. Maybe, therefore, something more than just my own postal system is at fault. I am sure that she would be ready to check with her office as to what, exactly, happened in the case of myself and my noble friend. If I sometimes get a feeling that we are having to fight with wooden rifles and pitchforks against the government juggernaut, I will try to dismiss them and use the modern weaponry of debate and opposition.

The noble Baroness has given some reassurances, but they do not meet the general unease that runs through many of our queries about the distribution of powers. Power is a reality; it empowers those who can use it, who need to use it with humility, respect and care. Wherever it is being tossed around, acquired, redistributed, taken or given, we must be on our guard. Our parliamentary system has not been too bad at that over its lifetime and through its evolution.

I was not saying that this provision was a passerelle. The noble Lord, Lord Hannay, was quite right if he thought I was comparing it to a passerelle, but I was adding it to the general bundle of propositions and provisions in the treaty and the Bill which seem to open doors rather than close them. Far from supporting the Prime Minister’s view that there will be no more change or institutional reorganisation in the European Union, they imply that there is going to be a lot more and that we are going to be watching and, I hope, debating and having some control and final parliamentary say over a whole series of movements of power upwards and maybe, as the noble Baroness was suggesting, downwards as well. That will be the day.

We have not heard much about this recently but it used to be the dream of many modern reformers in the European Union that the acquis should be unravelled and revived, and that the acquis powers that have accumulated over two, three or four decades and belong to a different era should now be transferred back to the nation state. That would be the position of the real liberal moderniser in Europe today. About that we have heard nothing and certainly the treaty does nothing towards that end. It talks about subsidiarity. We hope that is going to work better than in the past but that is very different from what I am saying. We do not need in the modern age such a centralisation of powers and initiatives. We can live with more disparity. We heard the cries of the lawyers earlier that we had to have a harmony of legal authority in the ECJ and what chaos there would be without one supreme legal authority throughout the Union, obviously extending its powers now with the collapse of Pillar 3 into a single pillar. But wherever we can, and even against the instinct of the lawyers and other centralisers, we want to be looking the other way towards decentralisation and variety within the overall scope of the club that is the European Union which, contrary to constant speeches from over my right shoulder, we support and always have supported and believe is an immensely important part of the armoury and membership of this country in its pursuit of its international objectives.

This debate is part of a broader scene which confirms that this Bill extends competences. The list is there. It extends the QMV areas to between 51 and 61—I forget the names. It extends the powers of the European Parliament, which badly needs to reform itself, if we read it aright. I would say, in coming to the end of our debates, it has been a bad day for parliaments and this Parliament and a good day for Executive power. I hope those who have done that task will reflect on what they have achieved. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at 10.02 pm.