House of Lords
Tuesday, 5 April 2011.
Prayers—read by the Lord Bishop of Lichfield.
Burundi’s location at the centre of the Great Lakes region and its membership of the East African Community mean that its stability and economic growth are closely linked to the rest of the region. The Secretary of State for International Development has therefore decided to continue to support Burundi’s economic integration into the East African Community from 2012 through a regional approach.
I thank the Minister for that Answer. Does she agree that the UK should be supporting a political, and certainly non-military, solution to regional stability throughout the Great Lakes region, which crucially requires Burundi’s involvement?
My Lords, the right reverend Prelate raises some very important points. However, through our regional work on economic integration and expanding focus on free trade, we think that our greatest support will be through developing Burundi’s ability to integrate into the East African Community through trade. That will be the determining factor for its growth. We will also work incredibly hard with the Burundi Government to ensure that peace comes through all sorts of means.
My Lords, the Minister’s recognition of the centrality of Burundi in the Great Lakes region is welcome. Given the fact that this is not only one of the poorest countries in the world but the most fragile in the region, how, in the absence of either a country programme or a resident ambassador, will it be possible to influence that country for good?
My Lords, the noble Lord is aware that our programme in Burundi was quite small, but we do support programmes through the EU and the World Bank. Through those programmes we feel that we are better placed to provide aid. We are also working very much with Trade Mark East Africa, which we have launched in the region, to ensure that Burundi is able to grow its private sector to develop economic growth.
My Lords, what progress are the Government making in helping Burundi strengthen its revenue collection authorities in comparison, for example, with Rwanda next door? What impact do the Government believe this will have in helping Burundi to meet its millennium development goals?
My Lords, Burundi has not met any of its MDGs at all. The president has promised universal education, which will go a long way to meeting the primary education goal. We feel that the rest of the goals will be achieved through strengthening Burundi’s infrastructure, which will come about through Burundi being a free access market to the countries in that region.
My Lords, does the noble Baroness recall that the Secretary of State for International Development said that we will be dealing with people who live in extreme poverty and in very conflicted societies? Does the noble Baroness therefore agree that Burundi certainly qualifies on both counts? Can she account for the inconsistency of a Great Lakes policy that includes increased commitments to the DRC and Rwanda but closes the United Kingdom’s office in Bujumbura?
My Lords, as the noble Baroness has just heard, we believe that we are better placed to put some of our funding through the EU and the World Bank, where we are large contributors. Our funding programme that will end in 2012 was only a small programme of £10 million. We believe that putting in an agency that will actually help Burundi grow through its economic development will benefit that country far more than the £10 million that we were giving.
International Labour Organisation
My Lords, the UK’s multilateral aid review found that there was no longer a case for voluntary funding from DfID to the ILO. However, the department remains open to providing project funding to the ILO at a country level, now and in the future. The ILO will continue to receive an annual, assessed contribution from the UK paid by the Department for Work and Pensions. This amounts to £16 million in 2011.
Does not the Government’s stance reflect their prejudices rather than seek to improve the ILO in dealing with the many matters with which it has to cope? Is it not a fact that just 12 months ago DfID said conclusively that the partnership between the Government and the ILO would continue? How do they react now?
My Lords, the United Kingdom, led by the Department for Work and Pensions, remains a fully paid-up member of the ILO governing body. We will continue to engage proactively with the International Labour Organisation and we will pursue a range of reform-related issues, including the reform of the workings of the governing body and improving audit arrangements. All this will carry on, and the ILO, on a country-by-country, programme-by-programme, basis, is still able to apply to DfID for funding, as long as it has a provable business plan.
My Lords, what was the basis of the multilateral aid review’s findings on the effectiveness of the ILO as a development organisation, particularly as regards inputs to and impacts on the millennium development goals? What discussions are planned with the ILO in that regard on in-country funding and specific projects?
My noble friend is aware that the ILO has published a review of our decision. It found that while the multilateral aid review recognised the value of standard-setting and policy-making, unfortunately, it found no evidence that a difference was being made to poor people in developing countries.
Will the Minister explain her answer to the previous question: that multilateral assistance through the European Union and the World Bank is good, whereas multilateral assistance through the International Labour Organisation and UNESCO is bad? Is there not a political agenda there?
My Lords, the noble Lord does not seem to understand. The point I am trying to get across is that we had the multilateral aid review because many programmes were not delivering the work that they were supposed to deliver. Therefore, particularly in these constrained times, we need to make sure that every penny we spend is spent well. The multilateral aid review considered the ILO to be one of the organisations that was not performing to its best.
Will my noble friend consider setting up a discretionary fund, run by the Government, into which noble Lords who want to give more money to the ILO can contribute? It would be a very agreeable experience for noble Lords opposite to put their money where their mouths are.
My Lords, the noble Baroness will be aware of the excellent ILO programmes on the elimination of child labour, which have been responsible for getting millions of children out of hazardous work and into school. Is she also aware that the ILO is committed to ending the worst forms of child labour by 2016? Will she therefore agree that it is certainly not the time effectively to end the UK's partnership with the ILO when such critical development objectives as child labour and education are at stake?
My Lords, through DfID we will continue to focus on child labour issues by working through a wide range of partners, including the ILO. The Government's annual contribution of £16 million through the Department for Work and Pensions directly helps the International Labour Organisation combat child labour. In addition, we provide £12 million to the fairtrade labelling organisation, which effectively combats child labour and has robust systems to investigate allegations.
My Lords, will the Minister take this opportunity to state unequivocally something that is good about the ILO—namely, that it is tripartite? Workers’ representatives as well as employers’ representatives come together from every country of the world. One might say that the workers’ representatives in some countries are rather dodgy, but is not the principle that each country in the United Nations, going back to the First World War and the League of Nations, has to provide a grouping of workers’ representatives with a degree of autonomy, a remarkable force for good in many places in the world?
Yes, my Lords, I agree that we want to see fair, decent working conditions for all people. I assure the noble Lord that that is a core part of the Department for International Development's work. For example, in India, Nigeria and Bangladesh we helped to generate more than 1 million jobs. We helped 2.3 million women to access jobs. We provide support for social protection, including public works. That is why we are continuing with the £16 million support through the Department for Work and Pensions.
No, my Lords, I cannot agree with the noble Lord. I have made it clear throughout my responses that we support raising labour standards in global supply chains. The number of fairtrade-certified producers has increased from 1.1 million to 2.5 million. That is an improvement. We are not going backwards, but we need to make sure that every penny we spend is spent well.
NHS: Joint Replacement Procedures
I thank the Minister for that reply. Is she aware that in 2010 1,200 fewer knee replacements and 350 fewer hip replacements were carried out in the National Health Service, that the Patients Association has said that there is evidence that waiting lists are increasing, and that the Medical Devices Agency says that companies that produce the prostheses for joint replacements are finding that demand is declining? Is it not likely that the so-called efficiency savings within the NHS will make this deteriorating situation even worse?
I thank the noble Lord for his Question and pay tribute to his long battle for patients in the NHS. I assure him that, if it is clinically appropriate for a patient to receive a joint replacement, they should do so. As noble Lords will no doubt know from their own experience and that of their relatives, people often find that their recovery is not as uneventful as they might have wished, and for some patients the joint replacement does not work as well as it might. There are other procedures. For some patients, the best road to go down may be that of other options, which may be a factor here. However, I assure the noble Lord that, if it is clinically advised that people should have a joint replacement, that is what is supposed to happen and, if there is any evidence that that is not being carried forward, we would certainly like to know.
My Lords, joint replacement treatment of all sorts is a highly successful area of medicine but there are still failures and many joints give up. Improvements have been possible only with continued research. Can the noble Baroness tell the House how it is envisaged that such research will continue under the improved National Health Service that the Government are proposing when more and more private providers will be offering these services and there is no particular academic interest in this aspect of medicine?
I note what the noble Lord has to say. Of course, he will know that my right honourable friend in the other place, Vince Cable, has recently put a considerable amount of money into health research. Looking forward over the next few years, real-terms spending on health research will increase. The National Institute for Health Research will be co-ordinating this and it supports research in this area. As for the noble Lord’s question about new arrangements in the health service, it is of key importance that research is carried on within the NHS. The NHS has led in clinical research and we are very committed to ensuring that under the new arrangements that continues to be the case.
Is my noble friend aware that the construction and production of joints have improved enormously? In earlier days, many failed and had to be replaced a second or even a third time. Does she agree that it is a false economy to use anything but the best now? Have any records been kept of how many people on the long waiting list are waiting for a second replacement rather than a first?
I am aware of the failure rate of earlier replacements and the trauma of having to go through such a procedure again, often with all sorts of additional health complications. It is very welcome that the improvements to which the noble Baroness referred have come about. I do not have the figures here showing how many joint replacements are second replacements and I shall write to her about that.
My information is that waiting times are stable, and that is obviously welcome. As regards commissioning in the future, it is extremely important for noble Lords to be aware—I am sure that in this Chamber people really are aware—of our ageing population and the pressures that that brings. That is why, in all our interests, we have to look at how best to deliver health in the future. Ensuring that people have access to good quality, timely care is central to that.
Given that yesterday the Health Secretary described the gap between the Committee stage and the Report stage of the health Bill as a natural break for the Government to go away and think again for a couple of months, can I urge the Government to consider following his example by having a natural break between Committee stage and Report stage of the Fixed-term Parliaments Bill?
That is a very interesting question and one that we hope is addressed within the new NHS Bill. It is very difficult, as the noble Baroness knows, to get a response from some of the organisations that currently exist. However, the NHS constitution is still there and patients have rights under that; they have rights to treatment and rights within a certain amount of time. Trying to secure that, as we know, has been difficult. That is one of the challenges that we have to face and we have to ensure that new arrangements build in better ways of handling this.
Is the noble Baroness aware that there are still choices in hospitals and that orthopaedic surgeons can use whichever joints they want to? She makes the point about using the best and that is something on which they have discretion. However, there is always a question about what is the best: some people use different prostheses and find that they work well, but some people have to return for a second hip replacement. Is it not right that that choice should stay with clinicians?
I hear what the noble Baroness says. Clinicians are undoubtedly likely to be and need to be in the lead on this. It is extremely important that we have transparent evidence, but we always have to bear in mind that a patient is an individual and what may look like the best route for one individual may not work out quite like that. All of us have experience of that. However, if you are basing it on the best evidence possible, I hope that the patient will be able to see the real choices and that things will work out for the best.
My Lords, I declare an interest as a recipient of two finger joints and I am waiting for another one. Can the Minister tell us what work has been done to identify the cost of failing to replace joints and allowing waiting lists to grow—as they almost inevitably will in view of the present cuts—in terms of decreased mobility and the inability of people to sustain their own independent living?
This is a key area. The noble Baroness is absolutely right. The Leeds Musculoskeletal Biomedical Research Unit is carrying out research in this area. I find that extremely reassuring because it is right that there are consequences of not undertaking these procedures in terms of pain for patients which, in turn, reduces their ability to work, to look after their families or to undertake whatever other responsibilities they may have. It is very important that that is factored in.
The noble Lord, as ever, asks very challenging questions. The various sections of the NHS have been set various tasks in terms of efficiency savings, but with the responsibility of reducing bureaucracy—which has grown, as noble Lords know, over the past 10 years or so—as opposed to making any reductions in clinical services.
Police: Deployment of Workforce
No, my Lords. As Her Majesty's Inspectorate of Constabulary has established, one-third of the police force—that is, 80,000 people—are not on the front line. There is significant scope for major savings in reducing bureaucracy and increasing efficiency in such matters as procurement and IT without touching the front line. Furthermore, in its recent report, Demanding Times, HMIC shows that front-line officers can be deployed much more productively. There is “significant variation between forces” in the visibility and availability of officers and PCSOs. Some constabularies manage to have only 9 per cent of their officers on the street at any one time; and the average is only 12 per cent.
I thank the Minister for that reply. However, in the light of the disclosure that in Warwickshire, full-time police officers are being removed from the front line to fill back-office vacancies caused by the government cuts; the finding by Her Majesty's Chief Inspector of Constabulary that 68 per cent of police officers and civilian staff combined are involved in the front line and will be very hard to retain in the face of the 20 per cent cuts; and the statement by the chief constable of Lancashire, who is the ACPO lead on police performance management, that with the scale of the cuts being experienced, they could not leave the front line untouched; can the noble Baroness confirm to the House that the undertaking by the Prime Minister that front-line police services will not be cut, but will be protected, still stands?
The Government believe that front-line services will not be affected by the savings that have to be made. As HMIC has established, there is considerable room for savings to be made without touching the front line. I have given some illustrations; many more could be given. To give one example, at the moment, the average percentage of available officers who are at any one time visible on the street is 12 per cent. That is 18,795 officers. If all the forces were to reach the best practice available, which is that of Lancashire, that would amount to 26,627 policemen. Very big increases in efficiency can be made.
My Lords, this is just the kind of work that needs to be done. It is not easy to make those head-count calculations until one has an idea of how each force is going to make the savings, but there is no doubt that if, for instance, one procures much more efficiently than we do at the moment, considerable savings can be made.
I think we can rely on HMIC, which has given us a definition of front-line police officers—I am just looking for it. The inspector has said that it is indeed those officers on the street and also those officers who provide support, which he calculates as being the 60-something per cent that was mentioned. We now have a definition of front-line policing that the Government are happy to accept.
My Lords, may I press the Minister on her definition to make quite clear that she is giving an assurance on front-line policing of those who are police community support officers? Will she affirm the huge value that those members of the police give in preventive action in terms of crime that otherwise might occur within the community?
My Lords, we entirely agree on the value of PCSOs as well as that of warranted officers. Crime prevention is a very important part of policing, which is one of the reasons why the Government attach so much importance to police officers being visible on the streets.
My Lords, as a Lancashire resident and formerly for 20 years a member of the Lancashire Police Authority, I am very proud of the service we achieve for the people of Lancashire. Will the Minister accept that, although she referred to money coming from different pots, it is my experience that the people of Lancashire would prefer to see their service maintained at the current high level rather than money being used to bring in a new system, for which I have yet to meet a single advocate in Lancashire?
My Lords, as I said, the police budget is in no way affected by the cost of the election of PCCs. I think that when the inhabitants of Lancashire have experience of elected PCCs, they will find that it turns out to be an extraordinarily satisfactory system and better than the one they have now.
Building Regulations (Review) Bill [HL]
Bill passed and sent to the Commons.
Social Mobility Strategy
My Lords, I wish to repeat a Statement that my right honourable friend the Deputy Prime Minister made earlier today.
“Today I am launching a cross-government strategy to improve social mobility: Opening Doors, Breaking Barriers: A Strategy for Social Mobility. This has been overseen by the informal ministerial group on social mobility, which I chair, and in close collaboration with key departments. I am placing a copy in the Libraries of both Houses and making it available on the Cabinet Office website.
Fairness is a fundamental value of the coalition Government. A fair society is an open society in which everyone is free to flourish and rise regardless of the circumstances of their birth. This strategy sets out a vision for a socially mobile society, the principal objective of the coalition Government’s social policy.
In Britain today, the income and social class of parents continue to have a huge bearing on a child’s chances. Gaps in development between children from different backgrounds can be detected even at birth. These gaps grow rapidly during the early years and widen throughout school, such that only one in five young people from the poorest families achieves five good GCSEs, including English and maths, compared with three-quarters from the richest families. This has a major impact on participation in further and higher education, and on success in the labour market. These cycles of disadvantage are repeated across the generations. This not only is a source of great unfairness but hinders our national prosperity, as talented individuals are denied the opportunity to develop to their full potential.
This strategy takes a comprehensive life-cycle approach. A person’s fortune should not be determined at the age of five, 15 or 30. By providing help and support at every stage, we aim to narrow the gap and provide second chances. The strategy seeks to improve social mobility at each life stage: the foundation years, nought to five; the school years, five to 16; the transition years, 16 to 24; and adulthood, aged 24 and over.
In the foundation years, we welcome the independent reviews carried out by Frank Field, Graham Allen and Dame Clare Tickell. Our approach puts supporting parents and providing affordable, high-quality early education and care centre stage. We are maintaining Sure Start children’s centres, recruiting thousands more health visitors, expanding family nurse partnerships and investing in free pre-school education for all disadvantaged two year-olds, on top of existing provisions for all three and four year-olds.
During the school years, our school reforms, giving schools greater freedom, raising the status and quality of teaching and improving accountability and transparency will raise standards in all our schools, while the pupil premium will provide an extra £2.5 billion a year to radically improve educational outcomes for the most disadvantaged pupils. We will also raise aspirations through high-quality advice and guidance, and through much greater engagement between schools, business, universities and wider society.
For young people, we will look to narrow gaps in educational attainment, raising the participation age and increasing funding for apprenticeships while ensuring fair access to higher education and developing a new strategy to increase participation in education and training.
During adulthood, we will continue to encourage fair access to jobs, with the Civil Service leading by example and a new business compact on social mobility asking business to do its bit. At the same time we will maintain a second chance to train and for lifelong learning opportunities, improve work incentives through our welfare reforms, support lower and middle-income earners through our goal of raising the personal allowance to £10,000 and help people to build up their assets.
Crucially, our strategy sets out a clear framework for holding the Government to account on our ambitious proposals. We are creating a new statutory social mobility and child poverty commission to assess progress on child poverty and social mobility, hold the Government and others to account, and to act on and advocate change. We have developed a set of high-level indicators that will be used to track progress; and for the first time, as departments develop their new policies, they will need to consider the impact on social mobility.
I will continue to chair a group of key Ministers to maintain this momentum for change. We recognise that the Government alone cannot single-handedly create a fairer society. This is a task for parents, communities, businesses, professions and voluntary organisations too. However, the coalition Government will help to create a fair and open society where opportunity is shared and everyone can flourish”.
My Lords, that concludes the Statement.
My Lords, I am sure that on all sides of the House we welcome a commitment to improving social mobility. All of us who want a fairer society want more room at the top and people to succeed on the basis of ability and not birth. It is also clear that there is much to be done. The figures at the beginning of the strategy make that clear, and I agree with it that:
“The lack of social mobility is damaging for individuals”.
It also leaves the country’s economic potential unfulfilled.
The Statement says that the promotion of social mobility is,
“the principal objective of the coalition Government’s social policy”.
That is also welcome. In that respect, and in the appointment of my right honourable friend Alan Milburn to head up this work, the Government are continuing an emphasis that Gordon Brown gave the last Government when he became Prime Minister.
I am the first to say that the last Government—alongside lifting half a million children out of poverty, embedding the principles of Every Child Matters, establishing universal early years provision for the first time, and a record number of children getting GCSEs, and ensuring a record number of students going to university—could have done more on social mobility. That is precisely why Alan Milburn was commissioned to write his report at the beginning of 2009, so today’s strategy has a familiar feel to it as something of a reheat of the last Milburn report, and on that basis there is not a lot to criticise as far as it goes. On the three actions set out in the strategy, there is nothing wrong with establishing a new public body to monitor progress. I welcome the publication of indicators of progress. And, of course, the final action point of a group of Ministers chaired by Nick Clegg is bound to add significant value.
However, I am bound to ask: where is the beef? Is this it? How do these three actions counteract the damage already done by this Tory-led Government? Let us, like the strategy, take the life-cycle approach. Before a child is born, support for parents, especially the mother, is important. What will be the social mobility effect of abolishing the health in pregnancy grant? Then life begins and we find that the baby credit element of tax credit has gone, the Sure Start maternity grant is cut for a significant number of women, and the childcare element of tax credits and child benefit are gone for a growing number of middle- income families as thousands more move into the top rate of tax. Let us hope that the child is healthy, because there is a strong link between health inequalities and social mobility. Just last month, the British Medical Journal published a report saying that the shambles of the NHS reforms risks making child health worse because of the lack of access to specialist paediatricians, a general view supported by the Government’s own Commissioning Support Programme. Incidentally, how come the Government launched a consultation on these reforms yesterday, during local election purdah?
Let us hope that the child’s family does not live in private rented accommodation, especially here in London. Shelter estimates that housing benefit changes will force 129,000 children to move to more affordable homes with, as the Government’s own impact assessment says,
“an adverse impact on work to reduce child poverty and … children’s schooling could be affected”.
Before they get to school, the parents and the children might be lucky enough to get support from one of the remaining Sure Start children’s centres. Much has been made of 15 hours of free pre-school support for some two year-olds and all three and four year-olds, but where will they go for this support? Children’s centres are fundamental to the early intervention that Frank Field’s poverty report put such stress on; yet despite the Prime Minister’s spin in the other place, the fact is that hundreds are closing and thousands are reducing their services.
Then we get to school. The concept of the new pupil premium is welcome, but the reality is that, as the Institute for Fiscal Studies has noted, schools in more deprived areas will receive a smaller pupil premium than similarly deprived schools in more affluent areas. In order to pay for it, the two most successful schemes that academics tell us narrowed attainment gaps between rich and poor children, London Challenge and Extended Schools, have been either scrapped or allowed to wither on the vine. If a child is not academic, he or she will be written off and turned off school by the English baccalaureate that exclusively values academic attainment and thus incentivises schools to narrow their focus. However, if a child is not too disengaged by the narrower focus of school, will he or she stay on after 16? Some 600,000 students who would have received the educational maintenance allowance will no longer qualify for financial support, even with the new replacement scheme. That is another attack on middle- income families.
If children manage to stay on, what about university? Most universities are now trebling their fees. Despite warnings, it appears that the Government cannot afford this and look set to reduce the number of student places accordingly. What does that do for social mobility? Does the Minister really believe that families who just miss out on a bursary will think it worth encouraging their children to take on all that debt, and will not some universities go out of business? London Metropolitan University has more black and Afro-Caribbean students than the whole of the Russell Group put together. Can the Minister assure us that universities of that kind will be protected to aid social mobility?
Finally, what about work? Unemployment is up 600,000 since the election; it was falling when I left office as Employment Minister. There are 60,000 more unemployed young people. Unemployment among women has risen every month for the past eight months. Graduate unemployment is at a record high. And what is the government offer on work—that most basic tool of social mobility? Well, there are some mini work experience opportunities and now some internships, including at Cowley Street for the Liberal Democrats. It is reported that these were being advertised yesterday as unpaid, as voluntary. Obviously, that is better than the Tories auctioning them off as a fundraiser, but how does it sit with compliance with the minimum wage brought in by the previous Government? How does it compare with the half a million opportunities for young people that I was responsible for? Our young person’s guarantee was scrapped. The guarantee of training, a job or work experience for 18 to 25 year- olds has gone. The Future Jobs Fund has gone.
A life-cycle approach in this strategy is welcome, but I wish the Government luck in making it work after the destruction of the past 10 months. Social mobility is an important cause for us to rally around, but I am not sure that people will take this strategy seriously. It is short on positive action and it does nothing to address the attacks on social mobility already launched by this Government. If the Deputy Prime Minister wants to be taken seriously on this, as with other things, he will have to do a lot better.
My Lords, I thank the noble Lord for that warm welcome for this initiative. At least he gave a warm welcome for the fact that Alan Milburn is continuing his work, which I freely acknowledge he started before this Government came into power. I am pleased that he has continued to make a contribution from his experience. However, there was a little bit of a clue in what the noble Lord said. He said that Mr Milburn started his work in 2009. If my mathematics work right, that is 12 years after the Labour Government came into office. This initiative is within the first year of the coalition Government, a sign that we have hit the ground running in our commitment to this issue.
I know that it is hard for Labour to accept, but the truth is that social mobility flat-lined under its stewardship. There were many reasons for that and I know that attempts to tackle it have been a problem for succeeding generations. My first job was with the Fabian Society of Brian Abel-Smith and Richard Titmuss. Successive Government have looked at this problem of poverty traps.
It is not fair to ask, “Where’s the beef?”. As I said, we are already providing help for disadvantaged two year-olds, 4,200 more health visitors, the pupil premium, to which the noble Lord referred, funding for disadvantaged learners, the national scholarship fund and new access rules for universities.
The noble Lord talked about non-academic children. This Government have addressed in a way that previous Governments perhaps did not do for 30 years the question of apprenticeships. We have expanded the apprenticeships programme to offer 360,000 new apprenticeships at all ages. We are reforming welfare so that work pays and we are raising income tax personal allowances.
Of course, it is easy to snipe at the internship programme and the business compact, but at least this Government have acted in retaining the services of Mr Milburn and asking him to do the preparatory work for a new body. We will keep track of what these initiatives produce and we are willing to be judged by the assessments made by the new body and the progress made by these initiatives.
My Lords, I am sure that the Minister will acknowledge that a number of Sure Start centres are being closed. That being so, what steps are the Government taking to ensure that the centres that remain are made available to the children of families in the greatest need?
My Lords, I thank the Minister for repeating this important Statement in your Lordships’ House and I ask him to congratulate the Deputy Prime Minister on it. The area of internships has rightly been identified. Does my noble friend accept that in some parts of the country, particularly in the poorest areas, disadvantage and discrimination are an everyday reality in the lives of many people? In many cases, people are still disadvantaged by being in the same place as the one allocated to them when they first moved to this country. What sort of monitoring mechanism will be put in place to ensure that no one suffers discrimination or disadvantage on the basis of their background?
I am hopeful that this will be one of the jobs of the new body that Alan Milburn is setting up. I agree with my noble friend that, of the many problems that we have to tackle, one of the most intractable is social mobility among those from ethnic backgrounds, who often find themselves trapped not only by poverty but by other forms of discrimination.
Does the Minister accept that he is not able to make any announcements today because we are in the middle of the purdah leading up to the local elections? Does he acknowledge that the strategy will end up, as my good friend and fellow north-easterner Alan Milburn said this morning, as motherhood and apple pie unless there are serious changes to some policies, including the way in which mainstream services are funded? The specific attention that is given to areas of higher deprivation is being changed so that, for example, Alan’s and my home county—Durham—is losing money in the funding formula on health to places such as Norfolk, while areas of high deprivation in education are losing more than the pupil premium will give them back. As my noble friend on the Front Bench said, areas that have the highest deprivation will suffer most. What is the Minister going to do in the committee to address this issue, which will signally send social mobility the wrong way?
I am grateful to the noble Baroness, Lady Armstrong, for pointing out that I cannot make detailed announcements today. There may be two reasons for that, one of which is the purdah that she mentioned. The danger of this being motherhood and apple pie is always there. This has been a long, intractable problem in our society. Somewhere in my brief there are details of the fact that, even in a time of high unemployment, we still have skills shortages. The mismatch between need and opportunity continues to be there. There is a real determination in the Statement, and in the intentions of the Government’s strategy, to make sure that such resources as are available—I will not go through the mantra about the decrease in resources available to the Government—are genuinely targeted at those in need. If one can comment on the last Government, no one could deny that they put vast amounts of money into some of these problems. One of the questions that we must now ask in politics in general is why, with the resources that they undoubtedly put into areas such as education, social mobility remained so stubbornly difficult to move.
My Lords, while welcoming what has been said on apprentices, may I ask for assurance that any apprentice who is given an apprenticeship gets both the practical on the factory or shop floor and the theory in the vocational colleges? Also, will the House authorities ensure, given the fine craftsmen here, including chefs in the kitchens, that we have a full capacity of apprentices in the Palace of Westminster?
My Lords, on the last question asked by the noble Lord, Lord Martin, I will certainly take that excellent suggestion to the House authorities. If we are going to lead by example as far as the Civil Service is concerned, as my right honourable friend said, we should also do so in the Palace of Westminster. As the noble Lord said, we see excellent craftsmanship at work in many parts of this building. To enable young men and women to obtain skills here would be a good example.
I also agree with the noble Lord on his first question. I always thought that the fall-off in apprenticeships in the 1980s was a waste and that we have had to make a great effort to catch up. It was a loss of real skills. The old apprenticeship scheme was a very valuable part of the skills base in our society. We are only just beginning to put that back. I agree with the noble Lord that there must be both on-the-job training and the use of the full benefits of further education. Another part of the strategy is that the study of an apprenticeship should have, where it merits it, academic recognition to allow somebody to go on into higher education. This is something that we are going to press with the authorities.
Can my noble friend please clarify why the Statement that he has just given to your Lordships’ House apparently bears scant resemblance to the Statement given earlier by the Deputy Prime Minister in the other place? I picked up a copy of the Deputy Prime Minister’s Statement in the Printed Paper Office just before coming into the House and I would like to know the reason why the two Statements are markedly different. Was it because the committee under the Deputy Prime Minister met between the two Statements, had an argument and decided to change the text?
No. I am not aware that there is a difference between the two Statements. If there is, I apologise. This was the Statement I was given to read. Well done to my noble friend for such a helpful intervention. I am sure that his long experience in government has come to his aid. Perhaps somebody would like to work out what the differences are. Otherwise, I will write to the noble Lord if there are marked differences.
My noble friend Lord Knight of Weymouth welcomed the strategy, but he was obliged to give a list of actions by the Government that undermine the principle behind it. He missed one very important action, and that is the cuts that have been made to voluntary and community services and to charities, many of which have tried for many years to do invaluable work in helping social cohesion and looking to improve social mobility. In my own town HomeStart, a valuable organisation giving families the support they need in life, will close in the next few weeks because of cuts to its funding. How does that improve social mobility?
I listened to the Statement at the other end. Local authorities across the country are making cuts and it is very easy for people to leap up and say, “How does this strategy match what is going on?”. This strategy is trying to deploy the fewer resources we have in a much more focused way. We are going through a period of economic difficulty and it will be easy to pick up on the impact of the various changes, but today we have laid out a strategy that focuses resources on the most needy and addresses some of the issues that have been identified as causing a lack of social mobility. What we cannot do is return public expenditure to the level at which it was being run by the previous Administration—who were, as the noble Baroness knows, planning to make cuts as well.
Does my noble friend agree that this is a highly important issue and social mobility is something which nobody on any side of this House or in another place has solved for a great number of years? It behoves us to find practical solutions to the issues rather than simply throwing insults across the Chamber. Today I received a letter from a parent in Greater Manchester who informed me that it previously cost 60p each way per day to send his two children to sixth form in Oldham. The fact that concessionary travel for 16 to 19 year-olds has been removed means that it now costs £3.90 each way per day. Is that what we believe to be increasing social mobility?
No, it is not; but I thought that my noble friend was moving away from that kind of question when he opened his remarks. Funds being targeted at the neediest families will also address problems of travel. I am not standing here saying that there are no cuts or difficulties. I am saying—and I welcome my noble friend’s idea that, at least on some of these issues, we might try to establish a cross-party consensus—that the roots of social mobility have puzzled us as a society at least since the war. I believe that what my right honourable friend has given today, partly building on some of the work of the previous Administration, is a clear sign that we—rather like the Attlee Government after the war, who also faced very difficult economic situations—are not abandoning the causes of welfare reform, work reform or social mobility, or putting them to one side during difficult economic times.
My Lords, the House will be relieved to hear that this is not a European question. Does the noble Lord agree that teacher training is the soil in which the roots of our education system feed, and that it has been very unsatisfactory for many years, serving the poorest children worst? For instance, the average A-level attainment of those entering bachelor of education courses has often been as low as two Es at A-level, according to government Written Answers. I know that the Government are seeking to address this problem. Can the noble Lord give us any news of progress in this deep but fundamental area?
I am not sure that I can—all my briefing for the noble Lord, Lord Pearson, refers to Europe, so I am not sure. I also see too many educational experts around for me to play this one on the hoof. I do know—as we all know over our lives—that some of the most inspirational people we have ever met have been our teachers. We also know that some of the people who take the toughest jobs and help the very young people we are talking about are teachers in deprived areas. So I am not going to make any comments on teacher quality. I am pleased with the scheme that encourages graduates to go into teaching for a time. It is a very good idea and I am pleased that some of them, having experienced it, stick to it. But I am sure that the noble Lord is right that a high-quality cadre of teachers is part of the solution to social mobility.
My Lords, perhaps I may take a rather different line. Quite a lot of criticism has been coming in the direction of the Minister, but I should like to congratulate him and the coalition Government on the approach that they have taken to the issue, particularly the fact that the issue now appears to be high up on their agenda. However, as we are referring to the life-cycle approach, I should like some reassurance that this will include, and not place in a separate category, the need for early intervention as described in the two important reports by Frank Field and Graham Allen which we have discussed in your Lordships’ House. That alone would enormously help the whole business of social mobility.
I fully accept what the noble Baroness says. With regard to the source of those reports and Alan Milburn’s involvement, I hope that we can attempt this with some degree of cross-party consensus. It is not the case that we have just discovered the problem of social mobility; as I said before, it has been around for a long time. Without playing prolier-than-thou, I come from a working-class background and in my childhood I was surrounded by what I call the aspirational working class. My father, who was a process worker, was one of the best-read men I know. How we instil in some of the more deprived families the kind of aspiration that there was in, say, the Welsh mining community and other, older working-class communities, I do not know. As my noble friend Lord Dholakia said, one sees it in some of the immigrant communities. There are factors that hold people back but poverty and deprivation are not the only ones. That is why just throwing money at some of these problems is not the solution either.
The fact that this has been announced—slightly differently from the way I announced it, evidently—by the Deputy Prime Minister, with the machinery in place overseen by Alan Milburn to check against results, means that this is not just about motherhood and apple pie but is a genuine attempt, building on some of the work of our predecessors, to be tested against results, to try to deal with a problem that, as I say, has challenged our society since at least the Second World War.
European Union Bill
Committee (1st Day)
Clause 1 : Interpretation of Part 1
1: Clause 1, page 1, line 12, leave out subsection (5)
Roderigo in “Othello”, Flavius in “Julius Caesar” and Bernardo in “Hamlet”—the House will instantly recognise what these three guys have in common. They get to start the play, they are completely unimportant characters and they have no influence whatever on how the plot subsequently develops. Afterwards will come the captain and the kings—I see that the names of five former Cabinet Ministers are attached to some of the more than 60 amendments that we are to debate—and of the 37 speakers at Second Reading on 22 March, more than 80 per cent were fiercely critical of the Bill. However, Shakespeare knew that, as the house shuffles its feet and settles down, first up should be a very minor character. The Bill has caused considerable concern on all sides of the House and the soliloquies from the stars will be worth waiting for. I hope that the play will not prove a tragedy, but I am merely playing Bernardo.
I will not repeat what I said at Second Reading about why I thought that the scale of the referendum requirements in the Bill was absurd in conception and damaging in effect, given that the requirements are for binding, mandatory referenda with no threshold on issues, many of them very minor and on all of which by definition the Government and Parliament have agreed. Nor will I say anything today about why I fear the chilling effect on our negotiators and on the perceptions of us in other EU member states or about the risk that, if we enact this Bill in this form, we will be repeating the Messina mistake and isolating ourselves from the future development of the European Union—I think that that is a risk, but I will not dwell on it now. Nor will I explain again why I believe that this is a bad Bill, which would damage both parliamentary sovereignty at home and our national influence and standing abroad.
The noble Lord said that he would not say anything about the potentially damaging effect on our negotiating position or negotiating leverage if this Bill is passed into law. I was disappointed to hear him say that, because there are few people in the world who have greater experience of negotiation in Brussels than he has. Does he agree that, when you are negotiating in any context in life, you have a certain leverage if at the end of the day, when you are persuaded and you have done a deal, you can actually deliver? However, if it is known in advance that you cannot deliver because you need a referendum to deliver—the Government are obviously not going to have a referendum on some subject of tertiary importance—does he agree that you will not really have any negotiating leverage at all, because no one will make concessions to you in the expectation of getting agreement if you cannot give agreement in the first place?
The noble Lord exaggerates my experience, but I think that he is quite right in his point. It is the case, I believe, that this Bill, if enacted, would oblige British Governments to oppose in Brussels reforms that were acknowledged to be in the UK interest, because they would not wish to have to face a referendum on the issue in this country. We are talking here not about big issues but about relatively minor reforms that most people in this House would find useful.
However, I do not want to be drawn any further down that track for the moment. What Bernardo actually says at the beginning of the play are words to the effect, “Midnight has struck; fly home to your bed”. We were after midnight when we finished Second Reading and I was rebuked fiercely from the government Front Bench for contributing to the length of our debate. Therefore, rather than going back over ground that I touched on then, I will concentrate on the amendment that stands in my name.
The amendment would delete the first reference in the Bill to Article 48(6), which concerns treaty revision procedures. I am sure that I do not need to refresh your Lordships’ memory of Article 48(6), which we could probably all recite—and perhaps should have recited before we began considering this amendment—but let me just recap for a second. We are dealing with two treaties: the Treaty on European Union and the Treaty on the Functioning of the European Union. The first, the TEU, is about principles, values and institutions; the second, the TFEU, is about the competences and, in its Part 3, the policies of the European Union, how those are to be determined and how they are to be implemented.
There are also two amending procedures. The first, the traditional procedure, involves an intergovernmental conference, which is now to be preceded by a convention of the kind on which the noble Lords, Lord Tomlinson and Lord Maclennan of Rogart, and the noble and learned Baroness, Lady Scotland of Asthal, served in 2002-03. That is the principal means of reforming the treaty. The second procedure is a simplified means—this is what we are talking about in Article 48(6)—which allows the European Council, or heads of Government, to decide without a prior convention or intergovernmental conference. Both means of course require absolute unanimity among the heads of Government of the member states and both means require ratification by member states by whatever means they choose. Since the treaty is a treaty and does not purport to lay down how we handle our domestic affairs, it says nothing about how we or anyone else goes about ratification.
So why are there two methods? The difference between the two methods is that the simplified procedure cannot be used to amend the Treaty on European Union—the treaty about principles—nor can it be used to amend the part of the Treaty on the Functioning of the European Union that is about the competences of the Union. It follows that Article 48(6), reference to which is what my amendment suggests be removed from Clause 1, cannot be used to effect any transfer of competences or powers from the member states to the Union. Adding belt to braces, it actually says that. Article 48(6), after referring to the previous steps in the process, says in its last sentence that the decision referred to in the previous paragraph,
“shall not increase the competences conferred on the Union in the Treaties”.
This article is not about the famous or infamous passerelle; that is something completely different, dealt with in Clause 7. We are talking about Article 48(6), which is covered in Clause 3. The question for me is: why is it there? This is the question that my amendment is designed to probe.
I may have misunderstood something, as the Bill is extremely densely drafted and hard to construe, but I listened carefully to what the noble Lord, Lord Howell of Guildford, said in his elegant and thoughtful speech at Second Reading and I confess that I am still puzzled. I am also now a little worried. In introducing the Bill, the noble Lord, Lord Howell, described its primary purpose. He said that,
“where a treaty change is deemed to transfer competence or power from the UK to the EU, it will in principle require the approval of the British people in a referendum”.
After explaining very helpfully how Clauses 2 and 3 are concerned with the ordinary treaty revision procedure and the simplified revision procedure, the noble Lord went on to say:
“Both clauses also provide that, where a treaty change of either type would also transfer power or competence from the United Kingdom to the EU, such a change should also be approved by the British people in a referendum”.—[Official Report, 22/03/11; cols. 600-02.]
That is, indeed, an accurate description of the Bill, but it seems to me to reflect a misreading of the treaty. Article 48(6) cannot be used in a way that would transfer any competence or power from the UK to the EU. Therefore, it seems to me that the references to Article 48(6) and simplified revision procedure in the Bill are otiose. The only other explanation for them could be that the Government envisage referenda on EU issues where no transfer of powers or sovereignty is envisaged.
What did the Minister mean by a treaty amendment “of either type”? A treaty amendment is a treaty amendment is a treaty amendment. You amend the treaty whatever the process that leads you to the amendment, so what are we talking about? Why are we distinguishing a subset of treaty amendments? There are lots of other things with which I disagree in the Bill, but on this minor technical point I see no reason for any specific provisions in relation to Article 48(6) other than, possibly, the parliamentary ratification procedures. However, that is not what the noble Lord, Lord Howell, was talking about.
It follows that I see no need for Clause 3 or for the specific reference in Clause 1, which is the subject of the amendment standing in my name. In moving the amendment, I seek enlightenment. I apologise for troubling the House with these arcana; they are arcana, but the arcana are in the Bill and that is very troubling. Exit stage left.
My Lords, it will not surprise anyone who was at Second Reading that I not only support the amendment so ably moved by the noble Lord, Lord Kerr, but think that no part of Part 1 is worth preserving. It is therefore axiomatic, as someone who is opposed to the whole of Part 1, that I support every aspect of deletion of the Bill—hence the various notices that I have given, along with colleagues, to vote against clauses standing part of the Bill. However, if the House were to be persuaded by the more gentle logic of the noble Lord, Lord Kerr, in relation to particular aspects, such as Article 48(6), I might well be prepared to concede, if individual clauses are so useless by the time they are amended, that a Motion to delete a clause might not be necessary.
Let us be absolutely clear—and the noble Lord, Lord Kerr, made it particularly clear—that Article 48(6) and the procedures laid down by it were debated in this House and in another place when we endorsed the Lisbon treaty. The article was endorsed by both Houses in the ratification process. All that it does, as our Constitution Committee pointed out with abundant clarity, is allow for the provision of Part 3 of the Treaty on European Union relating to internal policies and actions of the EU, and to them only, and subject to a restriction that this kind of decision shall not increase European Union competences.
Under this provision, the European Council, when it is debating anything proposed under Article 48(6), is required to consult the European Commission and the European Parliament and then to act in unanimity. In these circumstances, I should be very interested to hear from the noble Lord, Lord Howell, precisely which type of issue his normally extremely fertile mind can determine might be one to which we want to agree in the Council but we are fearful that we will incur the wrath of the British people and, therefore, may have to hold a referendum. It would help your Lordships’ House if we heard one or two illustrative examples of the sort of potentially excessive transfers of powers to the European Union that are causing Foreign Office Ministers to have sleepless nights.
I support the amendment. It is the least change that would be acceptable to many Members of your Lordships’ House. It should be carried if there are no persuasive arguments to retain this provision. If that happens, it may not be necessary to delete Clause 1, although obviously that option will remain available to us when we have completed the debate.
I hope that the noble Lord, Lord Howell, can help us on this occasion, because I fear that if he does not, two problems will occur. The first is the way in which the Bill has been explained to people such as me, who hold the same view about Europe that we started with and have no intention of changing it because it is even more important now than it was when we began. We have been told that the Bill is merely a means whereby we can give the British people confidence that, should some very large change be made, there will be an automatic opportunity for them to give their view.
I do not believe in referenda in any circumstances. They are wholly unsuitable in a parliamentary democracy; they are a foreign invention used by people for ulterior motives; and they have never been part of the sort of society in which we live. I am ashamed that my Government have brought this forward. I am even more ashamed that the Liberal Democrats allowed an agreement with the Conservative Party to contain this element. I look forward to hearing an explanation from some noble Lords who stood side by side with me in debates again and again yet who allowed this to happen. However, it has happened and the excuse given to people such as me is that it is all right because it will be used only in extreme cases when probably one would want the information anyway, and we have to understand that we have moved on when it comes to referenda.
I have still to be convinced, and this does not help the convincing. The suggestion is that we reserve the right to have a referendum on something that cannot take powers from this country and give them to the European Union. Later I shall point out that there are many things that we need. I will mention quickly the need for greater European competence in energy, so that the Spanish will be able to feed their energy into the grid and will not be stopped by the French who want to protect their nuclear industry. That needs specific European powers. I can imagine going up and down the country, trying to explain to people why we have to have a referendum on energy moving from Spain to France, because the Government have trapped themselves with the Bill. However, that is for later. Here we are giving the Government powers to ask for a referendum on something that they do not need in the rest of the Bill; it is the most amazing proposal. I will come to my second reason when I have given way to the noble Lord, Lord Foulkes.
The noble Lord referred to competence on energy. Is not an even more powerful example that of the environment? I heard the noble Lord chair an international conference on the environment; he chaired it splendidly. Is that not a perfect example of where a European competence is even more vital?
Well, we could go into the referendum and opinion poll mechanism of running government, which of course means the Daily Mail running government—let us be clear what the purpose of this is. If we ran government by opinion poll, we would exempt from the Bill anything to do with the environment, because an overwhelming majority of people believe that the environment is better protected on a European basis. They understand that half the emissions we create we give to the rest of Europe, and half the pollution in this country comes from the rest of Europe. One cannot have an air pollution policy unless it is European, and that is true of most of the issues about which we talk.
I will give my noble friend Lord Howell the second reason why we need to be very careful about this; it is for his own protection. If this is in the Bill, the head-bangers, of whom there are some in both Houses, will say, every time there is any decision in the European Union, “What about this?”. We all know who they are; it would be quite wrong of me to mention any names, but they will rise to their feet again and again because they are utterly committed to doing anything to stop—I give way to the noble Lord, whom I have not named.
I would say that a large number of people spend a great deal of time misleading as many people as possible on the European Union and it is not surprising that some of it has rubbed off. However, I named no names and I will not do so now. That intervention shows us exactly that what I have said is true. Any Government proposing anything in Europe will come to this part of Europe and present it to the House of Commons, and someone will say, “Why are you not moving for a referendum to be held under this part of the Bill?”. There is no subject which would not come under it. I say to the noble Lord that this is a serious issue for any future Government because, if this part of the Bill goes through, no Government will be free of it in any decision they make. What will be the result of that in the Council?
Of course, I yield to the experience of the noble Lord, Lord Kerr, in negotiations but I think that my experience as a Minister is at least as long as that of anyone else in the country. Sixteen years of that experience was spent in the European Union, much of it in agriculture dealing with the detail of tiny issues that really mattered and much of it in environmental matters. However, I do not see how I could have negotiated, because any bit of this part of the Bill could have been brought up. Therefore, I say to the noble Lord that, if there is something of an argument here, can we please present it in a different way which does not bring all this baggage with it? If there is nothing here, it should be his devout wish that the Committee divides and he loses on this amendment, because it will damage Governments of all kinds. However, what it will damage most is the country that I love—the United Kingdom. It will mean that no Minister will be able to negotiate with the freedom of any other Minister in the European Union. We will be like the Belgians, who, for any decision, have to go back to three Ministers, all of whom have different views, and, as a result, they decide and contribute to nothing.
Therefore, I simply say to the noble Lord that, if he can move on this, he will give me confidence in the claim of my Government that this provision is intended merely to prevent huge changes being carried out without the consent of the British people. If he can move on this, he will protect this and other Governments from the effect of the provision, and I think he will find much of the rest of the debate very much easier. However, if he does not, I fear that many of us will have to vote again and again against a Bill which, for me, is the Conservative version of the Hunting Bill. It has been brought forward to look after a particular group of atavistic individuals and it is not in any way sensible. Everyone else knows that it is not sensible and that it is there for a purpose, and I am ashamed of the Liberal Democrats for not making sure that it was never there at all.
My Lords, my noble friend Lord Deben will no doubt be pleased to hear that I agree with every word that he has just said, and I do so with a good deal more feeling than I agree with the views of the coalition.
In her speech at Second Reading, the noble Baroness, Lady Symons, said that the use of referendums in this Bill is unprecedented in terms of constitutional practice. That is absolutely true, but I would go further than that because I believe that important parts of the Bill are unconstitutional. Those parts of the Bill are the provisions that will require, for effective enactment, favourable decisions from both Parliament and a referendum. Here, when a Bill comes before Parliament, the decision by Parliament to enact the Bill may be overridden by its rejection in a referendum. Nothing like that has ever happened before in this country. What is proposed will set a precedent which could, and may well, lead to referendums being put on an equal footing with decisions by Parliament. We could, of course, consider a fundamental change to our constitution that would enable referendums to be incorporated into our system of legislation. However, this Bill is definitely not the place for doing that. I believe that once a Bill has been approved by Parliament, it is the law and cannot be overridden by a referendum imposed not by itself but by Parliament at an earlier date.
Of course, it would be open to Parliament, when considering a Bill, to say that all or part of that Bill should come into force only when approved by referendum. That is what we did on the Bill concerning the referendum on the voting system. However, what cannot be done within the constitution is to say that Parliament can require a future Bill to be made conditional on support in a referendum. That is a condition which must be decided only by Parliament when it considers that Bill. That must certainly be true for future Parliaments; in my view, it is absolutely clear that there is no way in which much of the legislation here can remain beyond the life of this Parliament. I further believe that it is probably also true that future Bills introduced in the present Parliament cannot be required to bring with them an agreement from a referendum. We need to deal with this issue much more thoroughly than we have done so far.
I support my noble friend's amendment. It is the practice in this House to start a Committee stage with an extremely abstruse point and this is certainly extremely abstruse. However, I argue that it is the tip of a rather large iceberg which is the overload of the list of things that have to be subjected to referenda set out in the rest of the Bill. This is the kind of entrée for that and it is absolutely right that we should have a serious debate about it now and not just treat it as a minor and abstruse matter.
The inclusion of decisions taken under Article 48(6) is a very clear symptom of a disease which seemed to be caught by the Government when they sat down to draft this Bill. Instead of opting for a very simple Bill, which would have subjected actual treaty changes to a referendum requirement—changes either to the Treaty on European Union or the Treaty on the Functioning of the European Union—they included a large mass of other material, including Article 48(6). That is likely to multiply by quite a lot the damaging effect that this Bill, if enacted, would have. I hope that the Government will think again about the inclusion of these issues within the scope of the Bill and thus be willing to look kindly on this amendment.
One relevant point is that when this House ratified the Lisbon treaty and conveyed our instrument of ratification, which helped, along with the other 26, to bring it into force, we approved a whole series of ways of implementing Lisbon, of which the Article 48(6) issue is one very small part. We deposited our instrument of ratification and Lisbon came into force and the coalition Government accepted that. However, I think that the Government need to pause for a minute to think about whether we are really acting in good faith when we alter the means by which we will deal with these decisions somewhere along the line and introduce a different method of doing so. Noble Lords will gather that this argument does not apply at all to a decision to have a referendum on a change to the treaty. There would be no question of bad faith about that. I think that we would be quite wrong to do so, but if we wish to subject a future treaty change, a change to the Treaty on European Union or the Treaty on the Functioning of the European Union, to a referendum requirement, that is absolutely our own business. We can decide that and cannot be accused of bad faith.
However, when we start tinkering with the way in which we shall approve items that are, as it were, subcontracted under Lisbon to the Council acting by unanimity, and impose new requirements which were not there when we deposited the instrument of ratification, we are taking real risks with that intangible concept—but one which is important within the European Union—which is the confidence that every member state has in the good faith of the other member states.
I say that not because I have thought of that problem off the top of my head, but because it was brought to the attention of the committee set up in the other place to scrutinise European legislation, when it held an inquiry into the sovereignty issue, by the now retired director-general of legal services to the Council Secretariat, a man of extraordinary brilliance who gave successive British Governments massively good and helpful advice on many occasions. In his testimony, which is on the record for anyone to read in the proceedings of Mr Cash's committee, he very delicately said that if the British Government systematically involve themselves in subjecting decisions taken under Lisbon to a referendum requirement, at some stage there is a real risk that the issue of good faith will be raised.
I hope that the Government will look very carefully at this matter and see that we need to cut away a good deal of the areas listed for requirement—among them, most particularly, the one we are discussing now.
My Lords, I support the amendment moved with such charming and disarming modesty by the noble Lord, Lord Kerr of Kinlochard. Only someone with a highland title could be so disarming and modest as well as eloquent in moving such an amendment.
I speak with reluctance because I was waiting to see who was going to spring up to defend the Bill and speak against the amendment. As my noble friend Lord Kinnock says from a sedentary position, “There won't be many of them”. I have been trying to find out over the past few days and weeks who is behind the Bill, who is the architect of it, who is the genesis of it, who is pushing it, who is keen to see it go through. I even had a conversation with the noble Lord, Lord Tebbit, and he certainly did not claim any responsibility for the Bill. At Second Reading, we had a number of contributions, almost none of them in favour of the Bill. Even those who were in favour were somewhat embarrassed and reluctant.
I wonder why we are taking up so much time in this House and in Parliament when there are so many other things that should be occupying our attention. The noble Lord, Lord Kerr, made a very eloquent Shakespearian beginning to his speech. If I can get a little bit of Shakespeare right, it made me think:
“Why should we, in the compass of a pale,
Keep law and form and due proportion …
When our sea-walled garden, the whole land,
Is full of weeds, her fairest flowers choked up,
Her fruit-trees all unpruned”.
A lot of things are happening outside in our land, this sea-walled garden, that need our attention, but we are being asked to spend so much time on this, it is really quite unbelievable.
I did not speak on Second Reading because I was at my first meeting of the European Union Select Committee. Excellent work is being done there scrutinising legislation that comes from the European Union. It is generally acknowledged that this House, in this Parliament, in this country scrutinises European legislation better than any other house of any other parliament in the European Union, something of which we should be proud. That makes it even more ridiculous that we are being asked to consider this Bill.
My Lords, can I test the noble Lord’s pride? Can he give us any examples of any proposals or changes to European legislation, put forward either by your Lordships’ Select Committee or the Select Committee in the other place, that have been accepted in Brussels in, shall we say, the past 10 years?
I have just been put on the Select Committee, so I shall leave that to members such as the noble Baroness, Lady O’Cathain, my noble friends Lord Tomlinson and Lord Richard, and other noble Lords who have been on the Select Committee for many years and know it better than me. I am just beginning to get to know it, but I am sure they can give examples.
I am grateful to my noble friend—I think I can call her that in relation to that contribution, just on this occasion.
I want to finish by following the point made by my noble friend Lord Tomlinson and asking the Minister to give us a few examples of the kind of things that would be dealt with. I suspect that we will not get many examples or, if we do get any, they will not be very convincing. The Government are reluctant to give us examples because, by giving them, ridicule would be poured on the Government because they are either so irrelevant or so minor.
I am really grateful to my noble friend. That is exactly the kind of thing that I was seeking. I know this House, and I have the greatest of respect for the noble Lord, Lord Howell, who I have known for many years and who has been very helpful to me on many occasions. I really feel sorry for him that he has been asked to pilot this Bill through the House. I think it says a great deal for his dedication and his commitment that he is willing and able to do so.
My Lords, perhaps it is time to have the smallest voice against these amendments. I shall do so by commenting on what noble Lords who have spoken so far have said. Can the noble Lord, Lord Kerr, tell us of any treaty changes so far that have not actually conferred power? I do not much like the word “competence” because it implies someone doing something competent, whereas we know that the European use of the word “competence” means power, which is nearly always exercised with great incompetence.
The answer is “legion”. The appointment of judges to the European Court of Justice requires an intergovernmental conference, as does a change in the number in the European Parliament, and a treaty change is required in both cases. The answer is “legion”, I promise the noble Lord.
To assist the noble Lord, I point out to him the very explicit provision that ensures that powers are not transferred to the Union from member states. There is a provision in the treaty of Lisbon enabling states to leave the European Union. That rather contradicts the noble Lord’s view.
There is also, of course, the ability to repeal the 1972 Act, which means that we would probably not need to go down the tortuous route proposed by the Lisbon treaty. Noble Lords have not quite got the question I was asking. I was asking whether they can tell us of any treaty changes that have not transferred powers to Brussels. Can they tell us of any treaty changes, those powers once having been transferred, that have returned them to this Parliament? I can tell them that the present Government were unable to answer that question in a Question for Written Answer very recently.
Another example is that, in the protocol to the treaty of Lisbon, there is a provision giving power to national parliaments to be able to refer to the Luxembourg court issues where the national parliament considers that the principle of proportionality is being breached by legislative proposals emanating from Brussels. That is an example of where the treaty of Lisbon enhances the powers of national parliaments.
We are not struggling at all.
I am afraid that I do not find them very convincing. The drift of all treaty changes, starting in 1972, has been to remove power from the nation states and to pass it to Brussels. Therefore, when we assume that under this clause provisions will come forward that do not transfer power from this country to Brussels, that really is the triumph of hope over experience.
The noble Lord keeps referring to removing powers. Would he not accept that there is a principle of pooling powers, which is very different? It means that we share authority so that we can find results for the common good of Europe. Of course, when you pool powers you are not simply saying, “I give up all authority”; you are saying, “Together we will use our individual powers to find a means of pooling it for the common good”.
No. I am afraid that I am among those who regard sovereignty as being rather like virginity; you either have it or you do not. Certainly, in all those parts of the treaty that are now subject to qualified majority voting, where we have some 9 per cent of the votes, we have in effect given up power. I really do not think that there is any doubt about that.
Perhaps I may talk about the question of virginity. In the matter of air pollution, we do not have sovereignty over half the air pollution that affects my former constituents and the noble Lord’s neighbours. By pooling our sovereignty, we now share the sovereignty over all the air pollution and we can do something about it. By doing that, we have increased our sovereignty. If I may say so, the noble Lord really misleads people when he talks about sovereignty as if it is something that in the modern world means keeping everything. I remind him of the biblical concept that if you want to gain something, you share it, which surely is the point of the European Union.
Perhaps I may put two further examples to the noble Lord. He is very conscientious and I am sure that he read carefully every word that was spoken at Second Reading. What about the examples that have been given? The noble Lord, Lord Kerr, previously referred to defence equipment, an area in which we would have an enormous amount to gain if we shared sovereignty. Presently, we do not.
My second example, patents, was given by the noble Lord, Lord Liddle. Are these not perfect examples of where we gain enormously from sharing a certain amount of authority instead of keeping it entirely in a narrow sense?
I cannot accept those points from the noble Lords, Lord Deben and Lord Taverne. Why could we not have done these great things by intergovernmental collaboration? Why did we need to pool our sovereignty to achieve them? On the environment, if the noble Lord, Lord Deben, as he did in his speech, is going to extol his 16 years in the Ministry of Agriculture, Fisheries and Food as an Agriculture Minister, is he really going to tell your Lordships that he is all that proud of that? What about the common agricultural policy and the common fisheries policy? These are also examples of the EU’s environmental control over what used to be our sovereign territory.
I wonder whether the noble Lord, Lord Pearson, would like to say the same about the last 16 years of the Houses of Parliament. It would be quite possible to say that a lot of things were done here in a way that he does not like, but would he suggest that we should leave the parliamentary system because he does not like some of the things that are done? All we are saying to him is that sharing sovereignty gains and does not lose, and that this particular clause has nothing to do with sharing sovereignty because it actually excludes anything that does share sovereignty. Why is he talking about sharing sovereignty in relation to this particular amendment when it refers specifically to internal housekeeping decisions that have nothing to do with sharing or transferring sovereignty?
The noble Lord brings me nicely on to my next point, which was also raised by the noble Lord, Lord Hannay, when he said that we ought to have confidence in the other member states. Of course I accept that under Article 48(6) the Government of the day have the power of veto, but as I understand it, that is not what we are envisaging here. We are envisaging a Government of the day that have not used the power of veto and something has come forward which the British people might not like. I would say to the noble Lord, Lord Kerr, that pretty much anything put in front of the British people on matters European will be voted down in a referendum, and that the supporters of these amendments seem to be very fearful of the judgment of the British people.
When I say that the other member states, Brussels and the whole machine simply cannot be trusted to follow the treaties, I speak with history behind me. I would mention, for instance, Article 308, about which I have regaled your Lordships over many years. This article was put into the treaty to allow the Council of Ministers, by unanimity, to make small adjustments to the original Common Market and so on. I could take noble Lords through the abuse of Article 308 and all the powers that have been passed to Brussels under it, but I will not do so.
Let us take the abuse of Article 122 as recently as June before last. That article, which clearly allows member states to help each other in times of natural disaster, was taken under qualified majority voting—the British Government did not have a hope of stopping it—to force us to sign up to some 14 per cent of £50 billion for the European financial stability mechanism.
I really do not think that those of us on the Eurosceptic spectrum, of whom there are a few in your Lordships’ House, can accept that all this is going to follow properly in the Council of Ministers. I will not respond now to the noble Baroness, Lady O’Cathain, about roaming charges, but I think there was another one that had something to do with audio-visual equipment. That was in response to a long line of Questions for Written Answer from my noble friends Lord Tebbit and Lord Vinson. I am afraid I have to stick to my guns. With all due respect to noble Lords who sit on our European Union committees, I really do not think that they have made enough difference over the years to justify their existence.
So there it is. I think that this part of the Bill is reasonable if we envisage a British Government after this Government are no longer with us—this Government can veto anything, and they have said that they are going to, so this is not going to happen for five years —who have agreed to something in the Council of Ministers that ought to be put in front of the British people. I simply do not accept that the treaty will be obeyed, as it has never been obeyed in the past.
My Lords, the noble Lord said that the European Union Committee has never made any difference—I declare an interest as I was its chairman for some years. Perhaps I may quote to him one fact. Many years ago, when Mario Monti, the Commissioner, set about a big review of the competition regulation, we got off the mark very quickly. We got hold of the Green Paper and did an extensive inquiry into it. We interviewed the Commissioner and presented our conclusions to Her Majesty's Government before they went in to negotiate in the Council. They said that they thought that what we said was extremely useful. They advanced their arguments, and it had an impact on the final result. So it is a little unfair to say that those 90 Members of your Lordships' House who work week in, week out on those committees do not make an impact—they certainly do.
My Lords, I really do not mean to offend the noble Lord, Lord Grenfell, or any of the other 90 noble Lords who sit on those committees. I merely point out—for instance, on the scrutiny reserve—that successive British Governments have over many years given an undertaking, which unfortunately is not legally binding, that they will not agree to any new piece of Euro-power-grabbing in Brussels if either the Select Committee in your Lordships' House or in the other place is still considering it and if it has not been debated. The latest Written Answer to me on this—I may not have got the statistic quite right—indicates that the scrutiny reserve has been broken no fewer than 434 times in the past five years. That is 434 pieces of European legislation that were under scrutiny by our scrutiny committees when the Government went ahead and signed up to them, because there was not time or because Brussels had moved ahead—all sorts of excuses.
My final word on your Lordships’ European Union Select Committee should be that perhaps one committee and a couple of sub-committees would do the job very well, and the resources could be freed up to do the work in committee which your Lordships' House does extraordinarily well. That is pretty well everything else apart from its European work. I oppose the amendments.
My Lords, when the noble Lord, Lord Pearson of Rannoch, says that he wants to stick to his guns, I am inclined to hope that he goes very near to the muzzle of those guns—indeed, just in front—because that would be a suitable location. However, his courtesy prevents me taking up such a stance. I cannot, however, avoid straying just a little bit into his assessment of the consequences of our membership of the European Union and that of 26 other democracies. His conclusion—indeed, his starting point—is always that we are subject to what he calls a power grab and that powers have been given up, taken, removed and transferred. No concession is made by the noble Lord or those who agree with him to the reality that, in the modern world—where so few significant decisions can be taken by single states, no matter how big, how strong or how rich—it is sensible, strictly and literally in the national interest, to pool some power in order to extend the power of a democratic state. The illustration was given perfectly by the noble Lord, Lord Gummer.
I am terribly sorry. I am sure that the new name is at least as attractive as the first name. I hope that the noble Lord never uproots himself from his Welsh antecedents by failing to call himself Selwyn. I hope that that stays at least.
The illustration given by the newly-named noble Lord and the anciently-named noble Lord, Lord Grenfell, is perfectly apposite. The problem, as we have to acknowledge yet again in these proceedings on this European Union Bill, is that the noble Lord, Lord Pearson, no matter what the strength of the arguments or the number of illustrations, will always argue and insist that the European Union is a larcenous conspiracy that has now lasted since 1958—a conspiracy between civil servants and politicians of every stripe and political colour—in order to usurp the sovereign powers of countries, to no good purpose other than to aggrandise themselves and to act in contradiction of national interests. I know that that is what the noble Lord believes.
I hope that I will not have to return to this issue, because it is in many ways a distraction from the debates that we need to have in examining the Bill. As the noble Lord, Lord Pearson, sees evil in everything that is done by the Union and is fearful of every form of relationship that the United Kingdom has with the Union, let us satisfy ourselves that he has a political hypochondria which is beyond cure, and, therefore, that he will have to be shown the excessive tolerance by which this House distinguishes itself.
The amendment—so ably moved, characteristically, by the noble Lord, Lord Kerr—refers to Article 48(6) of the treaty of union, so I thought that it might be as well for the purposes of this part of the debate to remind ourselves of what Article 48(6) actually says. This is not to detain noble Lords; I know that there is encyclopaedic knowledge available in this House on the issue, but as not everyone will be preoccupied with the minutiae of the detail of the Lisbon treaty, I shall take this opportunity to remind them.
First, any member state or the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part 3 of the Treaty on the Functioning of the Union—step one. Secondly, the European Council may adopt a decision amending all or part of the provisions of Part 3 of the treaty. However, the European Council shall act by unanimity after consulting on certain financial issues with the European Central Bank, but in all cases after consulting the European Parliament and the Commission. That decision, if reached by unanimity, shall not enter into force until it is approved by the member states in accordance with their respective constitutional requirements—a further example of the deference of the Union to the interests, conventions, constitutional requirements and habits of member states—and, most importantly, especially in the context of the Bill, the decision referred to, taken by unanimity, shall not increase the competences of the Union in the treaties.
Here is an enabling provision with so many sensible constraints upon it that it not only has a belt and braces, it even wears a boiler suit with a straitjacket on top of it. In those circumstances, I join other noble Lords in wondering why the coalition Government have found it necessary to seek to make this provision in an Act of Parliament.
Does the noble Lord agree that the British Government would have had to vote as part of that unanimity, thereby accepting that this would not change the nature of powers, but would then have to come back to Britain and say, “We voted the wrong way. We will now need to have a referendum, after saying that this did not increase the powers”?
That is the point that I was attempting to make. As unanimity applies in this clause, we could have a British Government who say that the change, whatever it was, met the terms of this clause, whereas in fact—as we have often seen in matters European—it did not. That is the point that I was trying to make.
As the conduit between two noble Lords of polar opposite opinions—and, as usual, in my role of gentle arbitrator, dispassionate and non-partisan—I could show this piece of paper to the noble Lord opposite at the end of this discussion. He will see, foolishly written down by me, “Gummer”, because that is the very point that I was going not only to make but to attribute to the noble Lord.
Reference was made earlier to a great Shakespearean tragedy, “Othello”. We have quickly moved from Shakespearean references to tragedy to the Bill’s references to farce. It is farcical for a provision to be made which would ensure that this member state and 26 others unanimously have to adopt a position, make it subject—rightly—to the constitutional requirements of each member state and then, because they have introduced a particular additional constitutional requirement of making a judgment on the significance of what has been before the Council, come back and either take the risk of saying—in accordance with what the noble Lord, Lord Pearson, would prefer—that they do not think that this change should be subject to a referendum, or make complete fools of themselves nationally and internationally by saying that they think that it should be subject to a referendum despite the fact that they have not only voted for it in the Council but come back and proposed it to this sovereign Parliament. What could be more idiotic or inane than that? I wonder why sensible people in both parties in the Government have allowed themselves to be subjected to that.
I am sure that they would fulfil that duty with alacrity. The problem then arises—attention has been drawn to this so I need not dwell on it—that, in the event of refusal to have a referendum on this issue, the Government would attract great odium from sections of the press and some people engaged in politics. As a consequence, odium might be mobilised— if you can do that with odium—among the general public.
That would not be the only problem because this ministerial decision—the need for the Government to make a decision is made explicit in the Bill—could be subject to judicial review. We are in a situation where we have moved deeper into farce. Here is proposed a piece of legislation, boldly intended to put the referendum lock on any loss of sovereignty from this sovereign nation and from our sovereign Parliament, but which, in the very course of exerting that, subjects itself to the additional possibility that power could move in these circumstances from that sovereign Parliament to judges. It is just another illustration of the fact that the coalition does not lack a sense of humour. It would not be possible to get any film company to accept this as a serious documentary and I do not think many publishers would be willing to accept it as credible fiction.
My final point connects directly with that. The Government have defined the conditions that would trigger a referendum, not only in the case of treaty changes but also in the case of changes that could be produced under the provisions relating to Article 48(6) and therefore the Treaty on the Functioning of the European Union. The Minister for Europe, David Lidington, pointed out as long ago as September 2010 that the background note produced at the time by the Government said:
“The use of any major ratchet clause which amounts to the transferring of an area power to the EU would be subject to a referendum”.
I have a question on that which I have not seen answered satisfactorily anywhere given the interest that I have taken in this piece of legislation. What is “major” in the context of a major ratchet clause? If in this first examination of the Bill in Committee we can get from the Minister a definition of a major ratchet clause that could be required to be subject to a referendum, I am sure it will guide our deliberations commendably and illuminate all our discussions.
My Lords, I can be very brief. My concern about this Bill centres on one issue alone: parliamentary sovereignty. I am opposed to referenda as a matter of principle, and many noble Lords have made that point. I know that giving the people a say has become the political equivalent of motherhood and apple pie but I will resist the temptation now of drawing to the Committee’s attention why this particular pie contains a poison that strikes at the very heart of our parliamentary democracy.
I hope I am sufficient of a realist to recognise that when a coalition is formed, concessions have to be made, not only between parties but between various factions within parties. My noble friend Lord Deben referred to them, rather generously, as head-bangers. My own view is that this has been and is a price worth paying as it has delivered a Government who are following, at the moment, a sensible and pragmatic approach within the European Union, always—as is Britain’s traditional role—with a degree of cautious, pragmatic scepticism. But if this Bill, as drafted, goes through, the kind of sensible approach to the European Union that we have seen from the coalition so far will be virtually impossible. As the noble Lord, Lord Kerr, pointed out, if referenda are to be introduced in matters that do not involve a treaty change and if, as the noble Lord, Lord Kinnock, has just pointed out, decisions taken by the Government are subject to judicial review, then the group of friends to whom my noble friend Lord Deben referred will for certain cash in on that, if I may put it that way, and the sensible and pragmatic policies that are now being pursued by the coalition will become impossible.
My Lords, I have a great many objections to this Bill under three broad headings. The first is the constitutional damage this Bill would do if it was enacted. I totally agree with what the noble Lord, Lord Garel-Jones, has said but, as he said himself, this is not the moment to go into that as we shall have other opportunities on amendments relating to referenda in Clause 18.
Secondly, I am concerned about the honesty of the Bill. I made the point at Second Reading that although it purports to offer referenda on a vast range of potential subjects, it seemed quite clear that there would in practice be no chance of referenda ever taking place on some of these secondary or tertiary issues and that the Bill is therefore something of a fraud on the public. I am quite concerned that there is another fraud going on here, which I will come to in a moment.
Thirdly, I am concerned about the practical implications of the Bill and there I agree again with what the noble Lord, Lord Garel-Jones, just said. The noble Lord, Lord Kerr, made it absolutely clear in moving his amendment that there is a serious discrepancy between the way that the Bill was presented as protecting the British public against any further concessions of power to the European Union—the entire rhetoric was that there will now be this block with a referendum—and the inclusion of decisions made under Article 48(6), which quite clearly and explicitly excludes any extensions of the powers of the European Union.
In fact, we have been offered a Bill with so-called protection for the public against a threat but which includes a provision that, by definition, could not form part of that threat. One has to ask why that has been done. Is it a matter of drafting carelessness? Surely not; the references to Article 48(6) are absolutely clear and deliberate. There are several of them throughout the Bill. Indeed, the noble Lord, Lord Kerr, and his co-signatories to the amendment have gone through the Bill and addressed them wherever they arise. There is clearly a deliberate intention here to go beyond what is in my view—I know it is a value judgment, but it is my view—the already extreme rhetoric with which this Bill was presented. The reality is even more extreme and one has to ask: why is that? Why is there an intention to have a referendum on matters which, by definition, cannot involve increasing the powers of or conceding capabilities to the European Union? I hope that the Minister will address this issue, as I cannot imagine that we could have an honest debate on this subject without it being explicitly addressed.
I also hope that there might be more contributions from the Lib Dems in the course of debate on this set of amendments. I suspect that a lot of Lib Dems were dragged, kicking and screaming, into supporting the notion of the Bill on the basis that all it did was to provide for a referendum in the event that further powers were being conceded to the European Union. In fact, the Bill that has come up is much more restrictive and goes far further. I do not know whether every member of the Lib Dem party has appreciated the significance of explicitly including Article 48(6) as it is being done, or of what that means. It puts much more of a brake on the European Union’s day-to-day activities, which I will come on to in a moment, than was ever suggested in announcing the intention to move forward with this legislation. It is particularly important that the Lib Dems, both in this Committee and in the country as a whole, have an opportunity to think really carefully about Article 48(6) before they decide what their ultimate attitude is towards the Bill. It would be artificial if we did not hear from more Lib Dems in the course of our proceedings, including on this amendment.
The third issue that concerns me about the Bill in general—I come particularly to the issues covered by this amendment—is its practical consequences. Before we pass any legislation, it is terribly important for this House to think through what its practical consequences will be. If you are sitting on a board of directors at a business and deciding whether to take a particular decision, you think pretty carefully about its practical consequences. You may ask your support staff and so forth, or you may ask legal advisers or other outside advisers such as management consultants, “What would be the consequences of our doing X, Y and Z”? You ask people, come up with as many possible answers as you can and weigh them carefully before you decide on the balance of advantage or disadvantage in going forward or not. It is important to look at particular cases.
Since the Government have set out for us in Schedule 1 the sort of issues which would require a referendum under the Bill, at least by way of an illustration which is not exhaustive and does not exclude other issues, we should think through in the course of the Committee’s proceedings what would happen if this Bill became an Act and was now on the statute book, and practical decisions needed to be taken in any of these categories. I shall take a few at random, without taking up too much time. Take, for example, Article 77(3) on,
“provisions concerning passports, identity cards, residence permits etc.”.
Some people would say, “We’re not part of Schengen so that doesn’t concern us at all”. If that were the case, why would we need a referendum on the subject? It baffles me. One can well imagine a situation in which we could not cut ourselves off from, let us say, immigration issues in the Schengen area. We remember the problems that we had with Sangatte, with a large number of illegal immigrants from France concentrating themselves in Calais with a view to trying to steal through the Channel tunnel in one form or another or on to ferries and come into this country. It was a serious practical problem for us. There was no point in using philosophical arguments to deal with it; it needed to be dealt with in a practical way. There are many possible scenarios that one can imagine where we will need to sit around a table with our partners and come to a sensible agreed solution to deal with, let us say, a massive and difficult immigration issue or threat that has suddenly arisen.
Surely the noble Lord would agree that if we had not pooled our sovereignty, as noble Lords like to call it, in the matter of immigration, which he has raised, if we had kept control of our borders and if the previous Government had not deliberately lowered our borders and our immigration, particularly to people from the European Union, the problem would not have arisen. Surely the answer is simply not to have been in the EU, not to be in the EU in future and to control our own borders. It is a no-brainer, isn’t it?
I think that by a “no-brainer” the noble Lord means giving the same answer to any question that is asked in any context whatsoever: that we should never have gone into the European Union. The noble Lord is fundamentally flawed in his analysis of the national interest in this area, but if I actually addressed his comments I should be making a speech about the reasons why we are in the EU. All I will say is that we have kept control of our borders. We have not joined Schengen although—and we should never forget this—we have a common travel zone with the Republic of Ireland, so we have a mini-Schengen. That is another reason why we cannot simply suppose that we can draw up the moat here and do what the devil we like; we need to discuss with the Republic of Ireland what it is doing in relation to Schengen at any one time, otherwise we should have to set up a border between Northern Ireland and the Republic or something of that sort, which would have all kinds of consequences that we would not want to contemplate.
I mention this to the noble Lord merely because, while I was not very optimistic that I would persuade him about anything, these matters are extremely complex and we cannot act as if we are in isolation in this world. There is a whole range of interdependencies—I was going to say “interdependabilities”—that we have with countries that surround us. That is a natural part of things and we should not reject it. We should be prepared to come to sensible, common-sensical, mutually advantageous arrangements with our partners on a pragmatic basis and we should not cut ourselves off from the possibility of reaching agreement with them—but that is exactly what the Bill does.
What would happen if there were a pragmatic, sensible solution of this kind dealing with, say, provisions concerning passports, identity cards, residence permits and so forth? The British Minister would be paralysed and would not be able to take part in the discussion at all. If the British Minister even started entering the discussion, he would immediately be guilty of bad faith. Everyone around the table would say, “This guy’s not serious; he’s not for real. Il n’est pas sérieux. He’s not going to have a referendum on this but he can’t agree it without a referendum, so why’s he sitting in the room at all? What’s this guy doing wasting our time?”. No one would be so rude and undiplomatic as to say that out loud, but that would be the effect. We would be sending Ministers to Brussels to find themselves in that extremely embarrassing situation. Do we really want to conduct our international relations, let alone those with such important partners and neighbours as our fellow members of the EU, on that basis? It is extraordinary.
Let us look at police co-operation, covered by Article 87(3). It does not need very much imagination, for people who have had some experience of public life like ourselves, to know that out of the blue you can suddenly have a very nasty threat. It can be something to do with terrorism, and clearly we are all concerned about that; there is a Bill going through the House at the moment. I sit on a Joint Committee with the House of Commons examining the contingent terrorist detention Bill, as noble Lords will know. We are rightly concerned that something will happen out of the blue. I will give way to the noble Baroness; I am just finishing my sentence.
I thank the noble Lord for giving way. As a very interested observer in this debate, I would just like to know what the noble Lord’s latest comments have to do with the amendment. Surely we need just to get through this and see how we feel about it rather than have a great long diatribe about what might happen if we did not do anything else. His comments have nothing at all to do with this amendment.
I am afraid that the noble Baroness is completely mistaken, as they have very much to do with the amendment. The amendment would have the effect of taking out of the scope of the Bill decisions falling under Article 48(6). If such decisions were no longer subject to a subsequent referendum, which would be the effect if the amendment of the noble Lord, Lord Kerr, was agreed to, the practical damage done to our country would be less. I hope that the noble Baroness can follow the logic of that. Perhaps she would like me to repeat the point. She is shaking her head, but I would be happy to do so if she does not understand the point because it is extremely important.
I repeat to the noble Baroness that the effect of the Bill as currently drafted is not merely, as she might have supposed from hearing the declarations of her Prime Minister and her Foreign Secretary, to ensure that there is a referendum if ever we have treaty changes or grant increased competence to the European Union. The Bill would have the effect of requiring a referendum on decisions such as those that I have enumerated, including, for example, on police collaboration. The effect of the amendment of the noble Lord, Lord Kerr, and his colleagues would be that we would not need a referendum on those other matters, which are decisions not involving a transfer of powers. That is an important distinction to consider.
I do not say that I would be happy with the Bill if it was simply amended in the way that the noble Lord, Lord Kerr, and his colleagues propose—I would still be very unhappy—but I would be less unhappy with it and the damage done to the national interest would be less, because the kinds of decisions that I am enumerating would be able to be reached. We would be able to take part in those decisions if this amendment went through. It is very important indeed that the noble Baroness understands that important distinction, and I am glad to have had the opportunity to go through it with her.
Let me carry on with the next example in Schedule 1, which is,
“Article 89 (cross-border operation by competent authorities)”.
Again, it is very possible to imagine scenarios in which some sensible, pragmatic arrangement needs to be reached with our European partners on cross-border issues, such as drugs, racketeering or human trafficking, which we are assured is a major problem. Under the Bill as currently drafted, such decisions could not be reached without a referendum, but they could be reached without a referendum if the amendment put forward by the noble Lord, Lord Kerr, and his colleagues was adopted. Perhaps the noble Baroness appreciates that point now.
Another example is,
“adoption of certain environmental measures”.
I totally agree with what the noble Lord, Lord Deben, said about that. It seems to me that it may very well be necessary, if we are to take any practical measures at all in defence of the environment, for us to reach agreement with our continental—and, indeed, Irish—neighbours. Once again, if we are half-serious about the European Union, that is an issue on which we should be able to do business without having to resort to a referendum the whole time.
Another example that is quite interesting—I will come on to “enhanced co-operation” in a second—is,
“changes to list of military products exempt from internal market provisions”.
Perhaps the coalition has not recognised this as yet, but we actually have a very major and successful defence industry—I know something about that—so it is very important indeed that, in so far as possible, our defence industry is able to sell its products within the European Union, where there are no problems of international conflict or anything of that sort. For that purpose, it could be a very good thing if the areas in which we are currently protected against single market legislation in the matter of defence goods should be reduced. That is something on which we may need to come to an agreement with others, so it would be absurd to have a referendum on a matter like that. Of course, once again, we all know that there never would be a referendum; if we enacted this Bill, we would simply be ensuring that, in practice, the Minister could never be party to an agreement.
As I said on Second Reading, it is clear to me that the consequence of enacting this Bill, including its present provisions whereby Article 48(6) decisions would be covered by the requirement for a referendum, would be not to bring the European Union to a halt or to stop the EU doing any business; the consequence would be that we would be de facto excluded from any decisions that were taken. We would simply find that we had a Minister present who had become an embarrassment to us and a joke to others. The Minister would be completely paralysed and unable not only to take part in a decision but to have any influence on that decision. We all know that you can influence discussion, negotiation or the exchange of views only if you can contribute something. I made that point in an earlier intervention. If it is known from the outset that whatever is agreed you will not be a party to it, by definition you have no leverage on the result.
The practical consequences of the Bill as drafted would be appalling. I congratulate the noble Lord, Lord Kerr, and his co-signatories on coming up with an amendment which would seriously mitigate the damage done by the Bill, though it would certainly not by any means remove all of it. However, it would at least reduce that damage, and in that sense is extremely welcome.
We have heard from the other side, so to speak. I feel very sorry for the noble Lords, Lord Howell and Lord Wallace, as they have been attacked not only by their enemies but by their friends as well. I ought to remind the Committee that before the general election the Conservative Party said that it would bring forward measures to ensure that no further powers would be transferred to the European Union without the consent of Parliament and the people. I believe that if there is a manifesto commitment to that effect, the Government should do their best to carry it out. Presumably, that is what the Government did when they promoted this Bill and brought it before Parliament.
I ought also to remind the Committee that this is a Bill of the House of Commons. The House of Commons—the elected representatives—had long discussions about this Bill. The Bill before us is the Bill which the House of Commons, as the representatives of the people, believes is right. We have a duty to scrutinise it. I do not think that the speeches so far have been so much about scrutiny as attacks on the whole concept of giving power to Parliament and the people. It has certainly been shown in this debate that there is a huge opposition to referendums. The noble Lord, Lord Goodhart, said that he did not agree with referendums.
I am glad that the noble Lord has clarified that because I well remember that when the Lisbon treaty was going through the House of Commons an amendment was moved by the Liberal Democrats to the effect that we should have a referendum on whether we should stay in or get out of the European Union. If I am not mistaken, the Liberal Democrats walked out of a Sitting of Parliament on that very issue. Therefore, we have to get this into perspective. I know that some people are against referendums.
The noble Lord raised two issues that he will recognise, after listening to the debate, are not very apposite. First, it is slightly ironic that he is nailing himself to the mast of the Conservative manifesto. Still, I suppose that there have been stranger bedfellows. The point that we are discussing in the amendment moved by my noble friend is about an article in the treaty that precludes the transfer of powers. The noble Lord’s argument is therefore irrelevant. Secondly, the noble Lord joined together everyone who spoke in favour of the amendment as people who are resisting the giving of powers to Parliament or a referendum. I am sorry to disappoint the noble Lord, but I am, as regards the amendments that I shall move, entirely content to give more powers to Parliament in this matter than were given at the ratification of the Lisbon treaty. There is no question of some of us opposing the giving of powers to Parliament. The difficulty is over giving powers through a referendum on matters that are pretty trivial and, frankly, on which it will be very difficult to carry out a reasonable consultation.
I hear what the noble Lord says. His career and mine have been perfectly different. I am in favour of a certain number of referendums on very important issues. He says that the Bill will allow referendums on trivialities. I do not see that in the Bill at all and I am quite sure that any referendums would be on major matters that would involve the transfer of significant powers to the European Union.
The noble Lord is missing the fundamental point that the noble Lord, Lord Hannay, is making. We are not discussing all those wider issues; we are discussing referenda that arise from Article 48(6), relating to issues that are already specified as requiring unanimity, with the precondition that there is no further transfer of power. Those are the limited areas that we are discussing.
It really would be nice if I were allowed to answer one question before I was asked another. I was going to say to the noble Lord, Lord Hannay, who seems to object to me taking up the issue of referendums, that the whole debate has been about referendums and whether noble Lords agree with them. I am trying to show that referendums are a perfectly legitimate way of testing people’s opinions. We have had lots of referendums. We had them about devolution in Wales, Scotland and Northern Ireland. We have had all sorts of referendums and the voices of the people have been heard. We seem to have been having a second Second Reading debate, at least until now. Incidentally, I mentioned the noble Lord, Lord Howell, not because he is a Conservative but merely because, if a party puts forward a policy before the election and tries to carry it out, that is the essence of democracy. It would be undemocratic for a Government not to put that policy into operation.
Allow me to carry on for a moment. I shall not speak at great length, although I should like to. However, we have been considering the amendment for an hour and 36 minutes so far. I want to say this: if we had had a referendum, as promised, on the Lisbon treaty, this Bill would probably not be before Parliament now. It is because so many people were so offended that a referendum on that Bill was not agreed and carried out that we are now seeing a great deal of public anger about the European Union. It is a great pity. When the issue was put to this House and to the House of Commons, the fundamental changes in that Bill were such that it needed the consent of the people. The fact that that was not sought has caused a great deal of difficulty throughout the country. That is why we have this Bill.
I will not go any further. I am sure that the opposition Front Bench will want to say a word, because if I remember rightly it was the noble Baroness who took through the Lisbon treaty. No, it was not; it was the noble Baroness, Lady Ashton. Nevertheless, I know that the noble Baroness will want her say and I am sure that it will be worth hearing. I doubt whether there will be a vote but, if there is, I am afraid that I shall certainly vote against the amendment moved by the noble Lord, Lord Kerr.
Will the noble Lord clarify one point? He said clearly that there was a promise to have a referendum on the Lisbon treaty. That was never the case. The promise was for a referendum on the draft constitution. If the noble Lord has not understood by now the difference between the draft constitution and what became the Lisbon treaty, he does not have the perception that I believe he has on these matters.
My Lords, I apologise for speaking, but I have to leave at 5.50 pm. I thought that this debate would be over before then. I will briefly answer a point raised by the noble Lords, Lord Deben and Lord Davies. They asked why the Liberal Democrats had consented to this. One could also ask why some of the former Cabinet colleagues of the noble Lord, Lord Deben, who are now in the present Cabinet, have also consented to this. There is only one explanation: Homer nods. I have great respect for the other place, but in the deliberations there on the Bill the question of Article 48(6) was never raised. I have studied this; it was never properly debated. Many aspects of the Bill will be properly considered only when people outside the House read our proceedings. I trust that when my Liberal Democrat colleagues see the force of the arguments, they will recognise that there is no obligation under the coalition agreement to support legislation that is full of constitutional improprieties. When they realise that, I hope and trust that they will take the appropriate action.
My Lords, I shall be extremely brief. We have debated the amendment for an hour and 41 minutes, of which at least 20 minutes have been in order and an hour and 20 minutes have not been in order. We are supposed to be debating an amendment. It was moved clearly by my noble friend Lord Kerr; indeed, I signed the amendment. It would be novel and helpful in the debate if we could concentrate on the issue, which is very simple and has been set out time and again in this debate. It concerns the effect of Article 48(6) and whether we have to have a referendum if something comes under that. I could go on for a very long time about the evils of referenda on minutiae, which is the great fault of the first part of the Bill, but I will not. It is time that we moved on and heard from the Front Benches.
My Lords, despite the remarks of my noble friend Lord Richard, I think that your Lordships’ Committee has got off to a cracking good start. There was certainly a flavour of a repeat of Second Reading but there were some memorable moments in it. Although in many respects I do not agree with the description given by the noble Lord, Lord Deben, of the Bill as the Conservative version of the Hunting Bill, I think that that is a very accurate political description of the politics that lie behind the Bill. The constitutional outrage of the noble Lord, Lord Goodhart, was well put, and I think that my noble friend Lord Foulkes is right that this is something of a threat to our sea-walled garden, although, at the risk of getting my metaphors mixed up, we need to live in a world of pooled sovereignty in order to protect our sea-walled gardens.
We started with a Shakespearean reference from the noble Lord, Lord Kerr of Kinlochard. He compared his role with that of Bernardo starting the play. If I may say so, I thought that he played the part of a minor character somewhat unconvincingly. Many noble Lords will probably be looking to him as the Committee stage proceeds for wise advice about the meaning of the various amendments before us, just as he has provided very wise advice in his various capacities in the past. Indeed, while we are on the subject of Shakespeare, I thought that my noble friend Lord Kinnock was right to depict the Bill as a move from tragedy to farce.
I turn my attention to the specifics of the amendment. They are, as I think the noble Lord, Lord Hannay, described them, rather abstruse technicalities. However, the core of this debate is whether the use of the so-called simplified revision procedure of the Lisbon treaty, under Article 48(6), should be included in this Bill at all. That is essentially what this group of amendments is about.
The purpose of the article is to give very strictly limited flexibility to member states, acting by unanimity and only by unanimity, to amend the treaty without having to go through the whole paraphernalia of treaty ratification according to their own constitutional provisions. It does not preclude proper parliamentary accountability for these matters for decisions taken under Article 48(6). Heads of Government are clearly accountable to their own national parliaments for any decisions they take in Brussels. In an extreme case, of course, a Government would fall as a result of a motion of confidence if they took a decision with which their parliament violently disagreed.
Therefore, the flexibility does not preclude accountability and under Article 48(6) it is limited. The EU treaties are clear. The Article 48(6) procedure cannot widen EU competence, and many of my noble friends—Lord Tomlinson, Lord Davies and others—have made that point with great force. However, it seems that the Government have drafted the Bill on the contrary premise that somehow or other matters under Article 48(6) can widen competence. The noble Lord, Lord Howell, shakes his head and I look forward to his explanation, but I think that, first, he needs to clear up this confusion. Why is something that under the treaty cannot extend competence regarded as being subject to the balls and chains put around our Ministers in the Bill?
That leads to two further problems with the inclusion of Article 48(6) in the Bill. One is a legal issue and the other is a good faith issue so far as concerns negotiation. On the legal issue, I turned to the Fifteenth Report of the Session of the Commons European Scrutiny Committee on the EU Bill. It took evidence from various legal experts about what this all meant. I think that the noble Lord, Lord Hannay, has already referred to what the Council’s former legal adviser, Jean-Claude Piris, said about it. Perhaps I may quote what the eminent legal expert, Professor Craig, said about the Bill. At paragraph 60, the report says that he,
“drew our attention to the conflict between clause 3 of the Bill, a clause which he described as ‘deeply problematic’, and the Lisbon Treaty. Article 48(6) TEU states expressly that a Decision made there under ‘shall not increase the competences conferred on the Union in the Treaties. Clause 3 of the Bill, by contrast, is predicated on the contrary assumption”.
So it is not just me making this up; this is an eminent legal expert. He goes on to say:
“To be sure Clause 3(3) embodies the exemption condition …This does not, however, alter the force of the point being made here: from the EU’s perspective no Article 48(6) Decision can increase EU competence; from the perspective of the … Bill some such Decisions can do so. This will inevitably lead to legal and political tension between the EU and UK”.
He also goes on to point out that further clauses of the Bill,
“in imposing constitutional requirements where none is foreseen by the Lisbon Treaty, may be in breach of EU law”,
and he sets out why he judges that to be the case. I think that in Committee it is perfectly reasonable for the Opposition to ask what the Government’s view is of this eminent legal advice.
Does the noble Lord accept that, although competences are defined, powers are not? Paragraph 21 on page 5 of the Explanatory Notes says:
“As the majority of treaties and Article 48(6) decisions will require the exercise of judgement as to whether a transfer of power or competence is involved”.
To me, the confusion between Clauses 1 and 3 arises because of the lack of a definition of “power”, and I wonder whether the noble Lord can comment on that.
The noble Baroness makes an interesting point. I am no lawyer and I do not think that she is a lawyer either. Eminent lawyers have made these points. I think that it is up to the Government to provide us with a clear explanation.
However, I am trying to make more than a legal point; there is also a moral argument here. The British Government are reneging on a compromise that they signed up for in the negotiations on the Lisbon treaty in 2007. They are overturning promises to our partners that they solemnly made. Of course the Government are entitled to say that for future treaties they can bring in new processes of ratification; they are perfectly entitled to say that and we can debate those processes. However, in relation to Article 48(6), the Bill proposes to introduce new procedures that place new obstacles to the use of treaty provisions to which Britain has already signed up. We signed up to that with the explicit purpose of not being subject to the cumbersome processes of ratification that the Government are now, retrospectively, trying to impose. That raises questions about the Government’s integrity.
I am following my noble friend closely, and I am sorry to interrupt him, but does he accept that his declaration that the Government are entitled to make provision for the future is a moot point in the context of this Bill? The Government, as well as presenting this Bill, have repeatedly and solemnly declared that no use will be made of it in the lifetime of this Parliament—none whatever—because there will be no concession in the direction of competences or powers, however defined. That being the case, are not the Government seeking to do what no Government or Parliament can do, and that is to bind future Parliaments?
My noble friend Lord Kinnock, for whom I have enormous respect, corrects me on this point. I was trying to make a point about whether our European partners were aware of the new constraints being imposed on the British Government’s flexibility in relation to provisions which the British Government have already signed up to. Has the Prime Minister written or otherwise communicated to his European Council colleagues to explain that the deal which Britain did in 2007 is now off the table? Can Parliament be informed of the reaction of our partners to the knowledge that the flexibility which they thought the British had signed up to is no longer available? If we have not got that from our European partners, there should be a pause—after yesterday, pauses in the legislative process are almost a formal part of our proceedings. There should be a pause while this communication with our partners takes place, because it is not right to go back on these promises.
I would like to talk briefly about what I regard as the impracticalities of the Government’s proposals, to which several noble Lords have referred. The most notable instance of the use of Article 48(6) is the way in which it is being used for the establishment of the European stability mechanism in the euro area. That is clearly not a decision that extends the EU's competence because the Maastricht treaty provided for the creation of a single currency and the establishment of an economic and monetary union, both objectives to which the previous Conservative Government subscribed. However, a gap emerged in the framework for managing the euro when the sovereign debt crisis came about. The stability mechanism was established to deal with the crisis, and the clauses of the treaty have been used for this purpose.
This is the point about practicalities. Let us imagine that Britain was in the euro and that we were engaged in those discussions about the establishment of the stability mechanism. That is not as much a flight of fancy as it would be to assume that the Bill will get through this House unscathed. If you were David Cameron and in the euro and facing this situation, you would have to say, “Sorry, I’ll have to consult my Foreign Office lawyer before I can decide whether we can go along with this”. The Foreign Office lawyer would point to Clause 4(4) of the Bill and say, “There are three possible ways we can avoid a referendum on this. It is clearly not an accession. If we are in the euro, it clearly applies to us—so the basis we are using for avoiding a referendum on this thing, which does not apply to the UK, could not be used. Is it a codification? Well, it might be”. I suppose that if you were a politician in a tight corner, you might try to argue that it was a codification. However, the point that I am trying to make is that in a crisis situation where Article 48(6) is being used, these provisions would prevent a British Government having the flexibility to act in a sensible way in British interests.
If we were forced into having a referendum in such a situation, the bond markets would be gyrating with the movements of the opinion polls. Obviously that is ridiculous, because we are not in the euro and we are not going in at the moment, but am I hypothesising a completely ridiculous scenario? Let us think for a moment about a situation in which we faced a second banking crisis in Europe and action had to be taken to recapitalise banks across the Union at very short notice. I do not think that that is an entirely negligible risk although I obviously do not want to see it happen. At present, as regards competence on this issue, the Commission is requiring member states to set up their national systems as we have under our Banking Act 2009 to deal with that kind of national crisis. If we had to deal with it on a European basis, what would be the position? If we were faced with a choice of whether to set up an EU-level agency, would it be subject to the referendum lock provided for in the Bill? As a result, the ability—this is a very serious point—of a British Government to defend our national interests would be gravely affected because they could not take emergency action to put in place a European solution to the problem.
These amendments are extremely important. We on this side of the House believe that the provisions of the Bill are not at all realistic or practical. They are from the world of Eurosceptic fantasies. They raise difficult legal issues and difficult political issues. Worst of all, they just do not make practical sense.
My Lords, I wonder whether I could press the noble Lord to give an answer to a question that I put to other noble Lords but which they did not answer. Why does he think that the European Union, Brussels and so on, will stay within the legal confines of the treaty? Of course, Article 48(6) says that it shall not be used to increase the competences conferred on the Union in the treaties. The two examples that I gave, to which I would like the noble Lord to reply, are the European Union’s abuse of what was Article 308, which is now Article 352. I did not weary your Lordships with all the examples of where that abuse was manifest, but I shall give the reference if anybody wants to find it. In future, students of these matters may want to consult Hansard for 18 June 2008 at col. 1074. That is a clear example of where a clause designed to allow the Council to take action,
“in the course of the operation of the Common Market”,
was used to do all sorts of other things. When it came before the Luxembourg Court for judgment in 1996, those words were simply ignored by the Court. I gave noble Lords the example of Article 308 in the past. I also give noble Lords the example of Article 122, which was used in the interregnum between one Government and another. Can the noble Lord answer those points and set your Lordships’ mind at rest that Article 48(6) will be followed, unlike the way in which those articles—and there are more flexibility clauses—have not been obeyed in the past?
With the greatest respect, I think that the noble Lord is confusing two things. I am looking in the direction of the noble Lord, Lord Kerr. I think that Article 48(6) deals with cases where there is a clear competence—for instance, in the case that I was talking about of the single market in financial services and in the previous case about the euro, the establishment of economic and monetary union and of a single currency. I think that the noble Lord is talking about the general clauses which are now subject, under the Lisbon treaty, to considerable constraints. I will look into that and perhaps we can have a discussion.
My Lords, it would be an implausible exaggeration to say that I have enjoyed this debate, but it is a privilege to hear the fine minds of many of your Lordships playing on these issues, which are undoubtedly complex. I do not make any apology for that, because much of the EU legislative scene is extremely complex, as are our relations with it. I strongly agree with the point made by the noble Lord, Lord Hannay, that although this seems to be an abstruse issue, which I shall address in great detail in a moment, it is also central and raises fundamental points about the whole nature and purpose of the Bill. I should also put in a good word for my Belgian friends, who came in for criticism of the kind that, frankly, I do not like. I will let that pass for the moment.
As the debate has ranged a little beyond the central point, to which the noble Lord, Lord Tomlinson, rightly urged we return, I hope that I will be allowed a few paragraphs trying to explain the context in which we come both to adherence to the central issue of the amendment and to the Bill.
We believe that there has been disaffection among the British electorate in recent years. I think that it is a mistake for the most enthusiastic supporters and builders of the European Union and our membership of it to ignore that fact, because it has led, through the successive handing over of powers to the EU—often for excellent reasons but without consultation with or the consent of the British people—to a good deal of distrust. That works totally against good Europeanism and an effective development and strengthening of the European Union, which are certainly required today.
The competences and powers have been handed over, in many cases—this is an argument that we have heard buzzing across the Floor of your Lordships’ House this afternoon—for good reasons. As my noble friend Lord Deben said, great things can be and have been gained by the handing over of competences and powers, whether or not you call it pooling of sovereignty. Others would argue, as we have heard today and often before, that the handing over of those powers has not been for the good. That wider debate has gone on and will continue in future.
Of course, the Bill does not concern what has been handed over in the past. I know that that is a matter of criticism for some of my noble friends and others in the other place, where there was considerable criticism that the Bill did not try to wind things back into the past, although it is worth reminding ourselves, as the noble Lord, Lord Stoddart, did, that the House of Commons passed the Bill and gave it to us for scrutiny, which we must perform in detail.
However, that fact of dissatisfaction cannot be dismissed or pushed aside by those who seek to understand the disquiet not just in the media and in the so-called anti-European or Eurosceptic papers but among a wide number of people and organisations, including some extremely learned people and leading lights in the legal profession. That is why the coalition’s programme for government gives the undertaking:
“The Government believes that Britain should play a leading role in an enlarged European Union, but that no further powers should be transferred”.
I am most grateful to the Minister for giving way so early in his remarks. I apologise for interrupting him. Is he asserting that the Government have in recent weeks and months been in receipt of lots of e-mails and letters from members of the public advocating withdrawal from Europe or being strongly anti-European? Does he recall what, on the last day of the Committee of the Whole House in the Commons, the Member of Parliament for Ipswich, the distinguished son of my noble friend Lord Deben, Mr Ben Gummer, said? He said:
“Over the past few days, I have had nearly 100 emails and letters about forests, but since 7 May I have not had a single letter or email about withdrawal from the European Union”.—[Official Report, Commons, 1/1/11; col. 793.]
Will my noble friend confirm that the public are not worried about this in large numbers? It is the comics that masquerade as newspapers in Britain that are stirring it all up.
I have no idea whether that is the case with the excellent son of my noble friend Lord Deben, who is a lively Member of the other place. I do not think that that has any relevance to the general concerns expressed over the years increasingly and very vigorously in this House and the other place on all the treaties that we have debated. There is a lowering of trust, commitment and enthusiasm for the European Union, which is bad for the Union and bad for the future of our co-operation and relations with the rest of the Union and which needs to be addressed. That is the Government’s view. If it is not my noble friend’s view, that is, in a sense, bad luck, because we believe that to be so.
I am not too keen on giving way now. We have had a long debate. I do not want to be rude in any way and I greatly respect the noble Lord, but if I could be allowed to get past my first paragraph, that would be quite a treat.
I was going on to say that it is because of that dissatisfaction that, in our programme for government, from which I was reading, the coalition made a commitment to introduce legislation to establish a referendum requirement for treaty changes that transferred power or competence from Britain to Brussels—I cited the words referring to powers—and, in the process, to strengthen the power of the British people to exert their influence over such decisions and thereby increase their engagement with those decisions and the work of the European Union more generally. I may say that that task was notably pushed aside in a rather cavalier way by the previous Government, with the result that there was a very noticeable decline in public enthusiasm for and commitment to the European Union.
I do not want to rehearse in depth the arguments that I went over on Second Reading related to the principles, but I repeat that, contrary to the views of those who have depicted the Bill as some kind of anti-European device, I see it firmly as a tool to strengthen our position, role and effect as a member state of the European Union, because of its impact on citizens’ involvement with the issues before them and their engagement with the EU. Of course, that means referenda. If, like my noble friends Lord Deben and Lord Garel-Jones, you do not like referenda, that is a perfectly respectable position to hold. They will recall that, again and again, referenda have been used. At the time of the Lisbon treaty and the ill fated constitution for the EU, all three parties were in favour of referenda. That was the position then. No doubt the noble Lords had their objections then, so it is not surprising that they will have their objections now. I respect that, but this is a difference that we cannot necessarily bridge. Either we are ready to see the use of referenda in this electronic age or we deplore them and think that they are in some way an attack on parliamentary sovereignty. I do not believe that to be so, because Parliament remains sovereign regardless.
It is certainly true that in your Lordships’ House there has been a notable weight of criticism against the Bill. I fully accept that. I have to remind the noble Lord that the House of Commons passed this Bill without the opposition of his party. This is a House of Commons Bill, as the noble Lord, Lord Stoddart, reminded us. It could be that those who feel strongly and are most expert in aspects of it or feel most strongly about broader issues are those who come forward to speak.
Labour did not oppose the Bill overall, but it certainly urged that we should scrutinise it and that, by heavens, is what we are doing. No doubt we will be doing a good deal more of that.
With this legislation, we are, in our view, plainly acting in the spirit of the Laeken declaration, which noble Lords will remember urged that we should seek to find ways, which are widely recognised throughout the whole of the European Union, not just in this country, to bring the processes of the Union and its legislative procedures closer to the people. That was 10 years ago. It urged us to act on that basis. It seems to me timely—if anything, a little tardy—and certainly appropriate for the era in which we now live that we should bring forward legislation on which, we hope, we can build an architecture of faith and commitment to the European Union for the future and a building that we hope will last although, obviously, we would not like to see—we will be debating this later—future Governments remove the foundation stones from that architecture and destroy it. That would be a pity, but it will again be a matter of opinion and debate. The Bill is put forward with that kind of faith and intention in our minds. Frankly, calling it a fraud on the public is a deeply regrettable statement—deplorable, in my view—and not at all in line with the tone of debates in this House of Lords. I think that it is a pity that people should speak in that way.
I want to come to the core issue in the debate. The simplified revision procedure allows the European Council to decide to make amendments to the part of the Treaty on the Functioning of the European Union that concerns internal policies. That is what the noble Lord, Lord Kerr, stated quite clearly. This is the Article 48(6) issue. The noble Lord said that the treaty changes under the simplified revision procedure are not allowed to transfer further competence from the UK to the EU. Here I hesitate, because I am going to challenge the viewpoint and authority of the noble Lord, Lord Kerr, and many others, but certainly the noble Lord, Lord Kerr, who is a great expert. After all, he was, I understand, rapporteur of the European constitution, which came to, I am afraid, a sticky end, but he has vast expertise. However, it is possible to transfer further powers from this country to the institutions of the EU. The potential for a substantial amendment to be made under this mechanism means that we should treat, logically, changes under the simplified revision procedure in the same way as we would treat other types of change. I was challenged again and again about what sort of things are involved. I have a long list of powers in the past, present and future that will be affected by the transfer of powers.
I was in the midst of saying that I would do that. Article 48(6) can be used to amend Part 3 of the TFEU, which covers Union policies and internal actions, such as the internal market, agriculture, freedom, security and justice, competition, employment, the environment and public health. In the past, the Lisbon treaty agreed to move 51 vetoes from unanimity to QMV. Somewhere I even have a list, which I shall secure in a moment, of the kind of vetoes, emergency brakes or moves to compel the United Kingdom to do something new or a new power or sanction on the UK involving a treaty change that might or might not qualify under paragraphs (i) and (j) of Clause 4(1) as significant, might or might not be exemptions if they did not affect this country and might or might not therefore become one of the items that might lead to a legislative treaty ratification process that might require a referendum. That is the situation.
I hesitate to interrupt the Minister, because this is an issue to which we must perforce return. When he refers to the 51 vetoes that are alleged to have been sacrificed in the context of the Lisbon treaty, I am sure that he will acknowledge that a large number of them suited the purpose of the United Kingdom’s national interest and that there was no argument about them. Nine of them referred exclusively to transitional arrangements being made for the purposes of the unification of the Federal Republic of Germany, while many others—I will give instances one by one in the course of this Committee—had absolutely no effect whatsoever on any loss of sovereign power by the Parliament or people of this United Kingdom. I hope that the Minister, who is an honourable man, is not going to take the risk of distracting us from discussion of what is actually provided for in Article 48(6) by making references that are at best redundant.
I understand the feeling of the noble Lord on this, but I want to come in a moment to the reasons why a number of these things would not trigger a referendum. Some things will; some things will not. Most of the items that the noble Lord just mentioned sound to me—I do not know what specific items he is mentioning, but I have already mentioned a list—like items under paragraphs (i) and (j) of Clause 4(1) that would not pass the significance test, so there would be no referendum. I shall explain later that many of the pictures that have been presented of tiny items triggering a single referendum are completely unrealistic in the context of past experience, of which the noble Lords, Lord Kerr and Lord Hannay, have huge amounts. There is the idea that the pattern will be that little bits would dribble out, but let me explain why it will not work in that way.
As far as the simplified revision procedure is concerned, I have explained that Clause 3 would extend the requirements that we are proposing for treaty changes under the ordinary revision procedure, which is a vast and cumbersome thing, in Clause 2 to those transfers of power under the simplified revision procedure. We think that our consistent approach is logical and will help to garner the trust of the British public that we are not seeking all the time to expand the EU’s powers through the back door of the famous competence creep or, in this case, power creep, which has worried so many people who feel that Parliament is not being a sufficient safeguard of the interests of this country.
I have one simple question on the point made by my noble friend Lord Tomlinson when he intervened in my speech. Perhaps the Minister could give us just one or two examples from the past where, if this legislation had been in existence, a referendum would have been triggered.
I have given some examples from the past and I have some more here. There have been 51 vetoes to unanimity, most of which would have failed a significance test, would have been exempted, would not have applied to this country or would have had no influence on our affairs. I am advised that another past example of a transfer of power is when the Court of Justice was given the new power to impose fines on member states for non-compliance in specific areas. Were that to have been proposed in an area under Part 3 of the Bill or Article 48(6), it would represent a transfer of power which would have to be assessed over the tests in this Bill.
I want now to turn to the crucial implications.
I think that the proposal to which the Minister was referring for giving a fining power to the court was originally proposed by the United Kingdom but I am more worried about the definitional point. I have not yet heard an example of a transfer of competence or powers—the words used by the Minister at Second Reading and again today. I hear about voting rules, and the Government can of course refuse to change the voting rules, but I have not heard about a transfer of power.
I do not think that any example yet given by the Minister is of a transfer of power; that is, something we give up. If the Court of Justice is given a fining power, no British court has a power to levy fines withdrawn. It is not a transfer. I agree that that may be an additional power to the Court of Justice but that is nothing about its competence. It is not a transfer of power if we are not giving anything up. We want the Court to enforce EU law.
I think that we have agreed that we are concerned with powers under Article 48(6) and the noble Lord is worried about powers rather than competences. It is true that the transfer of powers is not defined in European legislation, so we have to look at these detailed points, such as the surrender of certain vetoes or the removal of the availability to hold to a veto, and look at issues where a sanction is imposed on the United Kingdom which involves the limitation of a power moving to the higher levels of the European Union and taking it away from this country. These may be small powers. I want to come to what I believe to be a canard—that all this will lead to an endless series of referenda. It will not and I shall show exactly why it will not. But they are transfers of power and they come in a variety of forms. I have mentioned two or three. I will seek to get a longer list as we discuss these things but the pattern is there. The pattern of power must be considered as well as the pattern of competences.
Let me address what lies behind the amendment and the worry about Article 48(6); namely, will this procedure as applied to the transfer of powers as well as to the transfer of competences which would trigger the referendum requirement, provided they got over the significance hurdle, the exemption hurdle and other hurdles, lead to numerous referendums on trivial issues? If it did, I think that I would agree with some of the rather cruder and blunter criticisms of the Bill that this would not be a sensible way to proceed, with constant concerns about quite small issues triggering a referendum for the whole United Kingdom. Clearly, that would be absurd.
First, one has to face a fact which I think some of us—the very wise and experienced noble Lords on the Benches on all sides of the House—must know very well. Treaty changes, whether they have or have not transferred competence or power from the UK to the EU, have been very rare. That is for the obvious reason that it is very difficult for any country in agreeing a treaty change in any of the member states, some of which have referendum provisions with similarities to those proposed in the Bill, to get those treaty changes through. There have been enormous difficulties.
To bring home the point, the last treaty change, the Lisbon treaty, was packed with all sorts of smaller issues—they tend to come in packages for the very good reason that getting a treaty through on anything is extremely difficult—and took 23 months to ratify in 27 states, not to mention the three years of the constitutional treaty which went nowhere. The noble Lord knows all about that. We expect a similarly lengthy process with the current treaty changes, even on the tiddler, as it were, of the eurozone stability mechanism, which the noble Lord, Lord Liddle, mentioned, and certainly with future accession treaties as well.
Before we move on to—
I am most grateful to the noble Lord for giving way. Can he tell us whether any other member state has a referendum requirement for an Article 48(6) decision? I believe that the answer is no, but I am sure that the Government will be better informed than I am. Perhaps he would also note that the example he gave about the ability to fine by the European Court of Justice was in a treaty revision. That treaty revision would fall under a quite separate provision of this Bill, which we have not yet discussed but which we will come on to discuss, and will have nothing whatever to do with Article 48(6). Therefore, it merely reinforces the argument that the Article 48(6) reference is otiose.
I was just about to make points on the question raised. It would have been reasonable—I would not put it higher than that—for the noble Lord, whose wisdom I respect, to have allowed me to go ahead with what I was saying rather than interrupt me to say something that I was about to say and so lengthen the whole business: we have already been on this debate for two and a quarter hours. I plead with your Lordships that if we could just restrain ourselves a little we would make some progress.
I was turning to the important point about what other countries do when they are trying to get through treaty changes. That seemed to be absent from the attitude of many of the understandable critics among your Lordships about what is going on in the European Union. We heard speeches at Second Reading and in this debate implying that we were stepping out alone and marginalising Britain, that this was a completely different pattern and that we would cause the fury of other European member states. Incidentally, I am not sure that I can answer fully the noble Lord’s perfectly justifiable question on the consultations we have had and at what level with our European partners but I can assure noble Lords that all our posts in Europe have been fully briefed on this and have discussed it with their opposite numbers.
Let me just go through some of the immense hurdles, some of which are higher than anything we are proposing here, which many other member states already practise. In Austria, the President must certify that treaty changes are in conformity with the Austrian constitution. If changes are judged to be a revision of the federal constitution, a referendum is required. In Denmark, a referendum is constitutionally required if the treaty transfers competences to the EU and is not voted on by five-sixths of the majority in Parliament. In France, a referendum is required if a treaty change necessitates a constitutional amendment, and incidentally I notice that the French require a referendum on future accession treaties, which of course do not arise in this Bill. That may be to the dismay of some, and we can debate it later. In Ireland, a referendum is required if a treaty is thought to alter the scope and objectives of the European Union, as we know. In Lithuania, a referendum is mandatory according to the constitution if treaty changes involve the partial transfer of competences of government bodies to the institutions of the European Union. In Slovakia, a referendum would be held on a treaty which relinquished sovereignty to the European Union, although there is a rider that the Slovakian constitutional court can also consider the case. Similar referendums may be required in the Czech Republic, Greece and the Netherlands. I suspect that that is not the end of the list because I do not think I have mentioned the German position.
If I may just finish my sentence. The list builds up a picture of sensible attempts by member states who are enthusiastic supporters of the European Union to make sure that their people are closely involved in the processes wherever there is any transfer of competence or power.
If I must have another interruption, I will take it, but I only plead with your Lordships that we are getting to the point of completely unreasonable interruptions in what I am trying to say.
I am deeply sorry, but I think that there is a fundamental point to be made here. There is a confusion which should not be allowed to enter this discussion. What the Minister has read out are the constitutional requirements of member states for full treaty ratification, whereas in this set of amendments we are talking about what is required for the simplified revision procedure. It is there precisely to avoid this full rigmarole. Why are we putting this in the treaty?
It is simply because the simplified revision procedure involves changes in the treaty. In many cases I have described, particularly where the significant test is applied and is not satisfied under paragraphs (i) and (j) in Clause 4, there would not be referenda here or in many other countries. But in other areas, through the simplified revision procedure and part of what we called the passerelle in our impassioned debates on this issue in the House at the time of the Lisbon treaty, it is possible to generate either transfers of competence or transfers of power. These are things on which there would be a natural incentive for the better use of existing powers in order to achieve certain objectives, like better co-operation over civil nuclear power or one of the other things that has been raised. They would also be matters where a real effort would be made by all countries because of the complexity they all face in pushing through treaty changes of any kind; even some quite small changes would trigger elaborate procedures in other countries. There will be a natural and sensible tendency to avoid changes and developments that involve treaty changes.
We simply do not accept that there is an appetite in the European Union for a further round of treaty change, given the arduousness of the ratification process, let alone one that would transfer further power from the UK to the EU. We certainly do not subscribe to the view that the addition of the simplified revision procedure will launch a new culture of regular treaty changes that seek to transfer power on a single issue. That is not the way the system has worked or will work in the future, as those who have been involved in it will know. My last involvement was many decades ago, but I had my share of it back in the 1970s and 1980s. Nations will know that when they come to deal with these issues, they have political capital to spend and they will spend it carefully, not rush into treaty changes at every opportunity. It is highly improbable that all 27 member states will push to agree a treaty change unless it was considered both urgent and important, such as the European financial stability mechanism, which the noble Lord rightly mentioned. But even then, that urgent treaty is expected to take two years—I repeat, two years—to be approved by all member states. The proposition that tiny little treaty changes would somehow be pushed through and promote a referendum here when they take two years for any country to get through is an absurdity.
I know that this is complex but it is a comprehensive approach to the whole question of the transfer of competences and powers. I beg noble Lords to understand that that is the reality of the position. Otherwise, individual issues are bound to be deferred—this is going to be the natural way; it has worked in the past and it will work again—until a whole raft of issues requiring attention can be wrapped up and packaged. That would ensure one treaty change which would cover a multitude of issues and one ratification process and, where relevant, one vote, as was the case with the Lisbon treaty. We recognise the kind of creature that comes along—it is the Lisbon treaty. That is just the sort of amalgamation of small and large issues, some of which under this Bill would certainly require a referendum, that should be and should have been put to a referendum.
We disagree most strongly with the proposition—this House disagreed with it and I think we carried sensible public opinion with us in doing so—that the Lisbon treaty should be somehow brushed aside and not put to a referendum because of the arguments about whether it did or did not parallel the European constitution beforehand. The noble Lord, Lord Tomlinson, said it would not but he remembers, because he was a doughty campaigner in all those Lisbon debates, that there was a very strong sentiment the other way which remains to this day, enlivened and reinforced by the fact that if you actually read the words in the two documents, the constitution and the Lisbon treaty, they turn out over a broad stage, as the noble Lord, Lord Stoddart, knows very well, to be identical. We are not fools, and nor are the public when they are told about this matter.
I see that the noble Lord wants to intervene again.
I thank the noble Lord for giving way. Could we please try to get this straight once and for all? The constitution prepared by the EU Constitutional Convention was meant to be a constitution. The Lisbon treaty was in fact a series of amendments to two existing treaties, and the novelty of this was that when it was ratified, the Lisbon treaty disappeared into thin air and did not exist any more. It would have been odd to have a referendum on something that did not exist. What we were left with was amended versions of the two original treaties. That is very different from having a full-blown new constitution.
I will call the noble Lord my noble friend because he is that. He will recall how we went around and around this debate. It is perfectly true that when the Lisbon treaty was brought forward, its drafters had taken care to change the basis so that it could not be packaged or described as a constitution, but there was an awful weight of evidence, supported by the similarity of wording and by many European leaders such as Valéry Giscard d’Estaing. I do not think I am misquoting his words when he said that it was, “identical down to the last comma”. We could argue about that, but let us please not do so again tonight because I seem to remember that we spent many evenings on it. That is the fact of the matter.
In short, including the simplified revision procedure in the scope of the referendum conditions would not unleash frequent trivial referendums. In the same way, we do not accept that there are likely to be regular treaty changes in the future under the ordinary provision procedure. That is one set of reasons why there will be nothing very different from these large treaties coming along on which there is a basic division of view. We say that these things should be put to the British people. Others disagree, including my noble friend sitting further along the Bench. They think that somehow Parliament can continue to be relied upon to be the safeguard to prevent the further ceding of powers and competences. We have considerable doubts about that, and of course the noble Lord, Lord Pearson, has even greater and stronger doubts than the Government.
However, we recognise that the simplified revision procedure has been set up to allow for amendments to specific parts of the treaty to be made in a more streamlined way, which is the point just made by the noble Lord, Lord Liddle. We recognise that on occasion an Article 48(6) decision might be used to agree a change that might involve a small transfer of power but on which it would not be appropriate to hold a referendum. We have therefore gone one stage further and proposed a mechanism to assess whether certain types of transfer of powers under the simplified revision procedure should be put to a referendum. This is known as the significance test, which we will no doubt debate in further groups of amendments. It applies to any decision that falls under the criteria of either Clause 4(1)(i) or (j), both of which I have mentioned.
If the decision is deemed not to have a significant impact, a referendum need not be held, although an Act of Parliament—and this is a considerable addition to what went on in the past—would still need to be passed in all cases before the UK could approve any treaty change. We have built in this mechanism, the scope of which we will return to, to provide a further safeguard to prevent referendums being held on trivial matters. For example—I am asked for examples all the time—a new power under a future use of the simplified revision procedure that compelled Governments to provide annual statistics to the European Commission would not necessarily be considered significant enough to warrant a referendum, but a new power to compel UK businesses to adhere to further regulation might well be deemed significant and might turn up in some package or treaty that we would have to deal with in a better way than we dealt with the Lisbon treaty when that went rushing through.
This is a further example of how the Government have considered the scope of the referendum lock carefully in the light of the conclusions of the Constitution Committee’s inquiry. We think therefore that Clause 3 presents the British people with a clear, consistent approach to all types of future EU treaty change while maintaining a proportionate approach to the future use of referendums.
As in other countries, referendums will occur only for major transfers, or groups of transfers, of competence or power from this country and Parliament—which would obviously be of constitutional significance. That is a summary of the reasons why we think that this amendment is misplaced and seems to be based on a misunderstanding of the nature of the Bill, of the procedures by which treaties come about and are dealt with by this country, and of the politics of how, if we want to secure trust and support for the European Union as a whole, we should be going down this path.
The amendment represents a clear attempt to dismantle the provisions in Clause 3. As I have explained, we feel that it is important that decisions under the simplified revision procedure are subject to the same provisions of the Bill as treaty changes under the ordinary revision procedure—which are massive and cumbersome as I have described—including the assessment of whether a change would constitute a transfer of power.
Although these matters are of concern and your Lordships have applied great assiduity and care to looking at them, I think that I have said enough to justify the Government’s assertion that Article 48(6) decisions should be treated in the same way as any other type of treaty change. If Article 48(6) decisions that transfer power or competence from the UK are deemed insignificant, there will be no referendum, although, significantly, there would be an Act of Parliament. If the decisions are larger and more important and form part of great treaties that come before this nation and are slowly processed through all member states, in several instances—including from now on in this country—through a referendum as we believe is proper, we think that that is a healthy and democratic development. On that basis, I ask noble Lords not to press their amendments.
My Lords, my noble friend has sat down and there has been an agreement through the usual channels that this might be a convenient moment for the noble Lord who moved the amendment to respond and for us to move on after that. There have been a considerable number of interventions. My noble friend the Minister has been extremely generous with his responses. I invite the Committee to move on and the mover of the amendment to speak.
My Lords, I really cannot agree with that. The Chief Whip is suggesting that there should be a limit on Committee stages. This is Committee and it is open to any Member at any time, until there is closure or we are all fed up with speaking, to continue the debate. The noble Baroness should not introduce new rules without the consent of the House.