Committee (5th Day)
My Lords, I oppose the Motion on the basis that it is completely unfair to bring on a major Bill at 8.05 pm, when, presumably, the House is to rise at 10 pm tonight. This is supposed to be the fifth day of consideration on the Bill. It is certainly not the fifth day, although it is a fifth of a day. That is unseemly and unfair to all noble Lords who have taken part in discussion on the Bill so far and who wish to do so at a proper hour in future.
We were given notice that the Bill would be considered again today only on Thursday. Until then, I think that everyone who was interested in the Bill had the impression that the next consideration would be tomorrow, instead of which it is coming on at 8.05, after Report of a major Bill and the previous debate. Frankly, that is not good enough. It is treating this House with contempt.
That is exacerbated because, as I understand it, there has been virtually no consultation with those who have been concerned with the Bill. The usual channels have just said, “Oh well, we'll give it a run on Monday. Never mind the arrangements that people might have made to do other things. We will put it on. No one will object”. I am objecting now, and objecting strongly.
I was unable to be here on Thursday. When I saw this appear on the business, I made inquiries about what time it was likely to come on. I was told that it would be at 6 pm. Even on the basis of information available on Thursday, we have lost a further two hours. To embark on a Bill now with major amendments is unbecoming to the Government and the usual channels. As I said, there has been complete disregard of the convenience of noble Lords who wish to speak to the Bill.
It is not as if there is an urgency about the Bill. We do not need the Bill tomorrow or next month; we do not need it next year. The Government have said that we do not need it in this Parliament, because none of its provisions will be operative in this Parliament. What on earth are we doing here at 8.10 pm embarking on the so-called fifth day of an important Bill? It is completely wrong and the Government ought to be ashamed of themselves.
Of course, the situation is even worse than that. Tomorrow, when we will embark on the Bill again, another major Bill will be debated before it—the Postal Services Bill, and God knows how long that will go on for. I shall almost be tempted to speak on it myself so that we talk out tomorrow’s discussion on this Bill.
Therefore, tomorrow we will have only half a day, if that, to spend on the Bill. The Committee is being cheated of the time that it was promised, which I believe was six days. Bearing in mind the time that we lost on previous days, we will certainly not have anything like six days. In any event, as this Session goes on until next May, why on earth do we want to start debating a Bill at this time of night? I hope that the Government will reconsider their decision to take the Bill into Committee tonight and agree to oppose the Motion before us.
My Lords, I cannot recall an occasion yet when the noble Lord, Lord Stoddart of Swindon, and I have been in complete accord but we are this evening. I share the view that it is absolutely extraordinary that most of us should have stood by ready to start debating this Bill at 6 pm only to find that it has started, even with a few minutes’ intervention from the noble Lord, Lord Stoddart, way past 8 pm. I do not believe that that is helpful to the government Front Bench, let alone to both parties opposite or, indeed, to us. I shall not repeat what the noble Lord, Lord Stoddart, said at any length, because he made the point very forcefully. It is extremely hard to understand what is so pressing as to mean that we should discuss absolutely critical issues about constitutional arrangements between our Parliament and Europe on this type of timescale. We are shoe-horning it—that is the only way that I can describe it—into tiny pockets of time very late in the day with the prospect of holding debates extremely late at night, when we all know that proper justice is not done to the matters that we need to discuss.
I take the Bill very seriously, just as the House took the Fixed-term Parliaments Bill seriously this afternoon. They are big constitutional issues by any standard. As I said, I take this Bill very seriously, although I have a very different view from that of the noble Lord, Lord Stoddart, for example, on a number of its provisions. However, that is neither here nor there. We either take it seriously or we do not. I think that we are being asked to perform a serious job in a trivialised way and I cannot believe that the House will find that acceptable. I hope that the Front Bench opposite will have a credible answer and a credible timetable.
My Lords, perhaps I may detain the House for a minute or two to comment on the speeches that noble Lords have just made. As we understand it, it is the operations of the usual channels that have resulted in such peculiar anomalies—if I may call them that—in the conduct of the Bill. On the previous two days in Committee, we had extraordinary groupings. I know that Members on the Cross Benches were as perplexed as we were about how those groupings had been determined, and there was consensus across the House that they had not worked very well.
We were then told last Thursday that there was going to be an additional day in Committee—today. In other words, if the House had not sat on Friday, we would not even have had one working day’s notice. It was simply a coincidence that the House sat on Friday and that we therefore had one working day’s notice. We were led to believe that that was agreed among the usual channels and that in fact the opposition Benches of the noble Lord, Lord Triesman, had requested the extra day today. However, from the tone of the debate, it sounds as though that may not have been the case.
I hope that my noble friends on the government Front Bench will bear in mind that, if we are to have serious scrutiny on the Bill, as we all want, and time to prepare seriously for that serious scrutiny, we require slightly more notice than we were given on this occasion, and we require slightly more attention to be paid to the way in which the Bill has been conducted to date.
My Lords, I concur with everything that has been said by the three previous speakers—an unusual event in itself, I think. Perhaps I may press the Government on a rumour that another so-called day in Committee may be offered next Wednesday, 25 May, when the President of the United States will be paying a visit. I cannot believe that that is a suitable time to hold another half-day or whatever on the Bill, and I look forward to the Government’s reply.
My Lords, all noble Lords know that business is organised by the usual channels. I agree that the House is working very hard at present and I can think of few noble Lords who work harder than the noble Lord, Lord Stoddart of Swindon. However, we have plenty of time to undertake valuable work on the Bill. In fact, we still have an hour and three-quarters, and it is not an unusual time of day to be considering such legislation. I do not believe that the House or the general public would understand if we went home an hour and 45 minutes early, especially if they worked out the cost of doing so. Therefore, I hope that noble Lords will agree to go into Committee.
My Lords, I very much doubt that the usual channels would consider an hour and three-quarters to be a whole day. However, I shall pass on noble Lords’ views to my noble friend the Chief Whip, who is not too far from me, and I am sure that she will take that into consideration in her discussions with the usual channels. However, I strongly suggest that we go into Committee on the Bill.
Clause 6 : Decisions requiring approval by Act and by referendum
39A: Clause 6, page 5, line 6, leave out subsection (4) and insert—
“(4) The referendum condition is that—
(a) a joint committee of both Houses of Parliament publishes a report containing a recommendation about whether it is necessary for a referendum to be held in respect of a draft decision; and(b) the joint committee’s recommendation is approved by a resolution of each House of Parliament.(4A) If both Houses—
(a) agree a referendum is necessary, a referendum shall be held; or(b) agree that a referendum is unnecessary, the referendum condition shall be satisfied without a referendum being held.(4B) If a referendum is held, the majority of those voting in the referendum must be in favour of the approval of the draft decision before a Minister of the Crown may vote in favour of it.”
My Lords, I shall also speak to Amendment 39B. These are probing amendments. We are not saying they are perfectly drafted but they are an attempt, as always from this side of the House, to be helpful to the Government. They are an attempt to substitute a parliamentary process for the Government’s attempt to define in the Bill every single circumstance and change of rule to which their referendum lock would apply. Instead of trying to define all the circumstances in the Bill, these amendments propose a parliamentary process by which the issues would be determined on a case-by-case basis. They represent a new subsection (4) to Clause 6. We put forward two options, which I will explain in a moment.
The basic difficulty with the Government’s approach to this Bill is that it requires an extraordinarily long list of issues to be codified in legislation that are subject to the so-called referendum lock. Heinz talked about its 57 varieties. This Bill has 56 varieties, we count, of referendum lock. These are not just major new treaties. It has become clear in our consideration of the Bill that a lot of changes within existing treaties would be subject to this lock.
The Bill allows Ministers but not Parliament some very limited discretion to decide that the referendum lock does not apply in limited circumstances that we have debated in our earlier sessions: the exemption clause under which Ministers can decide that the matter does not affect Britain or is simply a codification of existing treaties; and the significance clause, which is very narrowly applied to paragraphs (i) and (j) of Clause 4(1).
A better form of exercising discretion and judging whether a referendum is required would be to put the matter in the hands of Parliament and not in the hands of the Government. In these amendments we sketch out two possible ways of doing this. Amendment 39A suggests the establishment of,
“a joint committee of both Houses”.
This was proposed in roughly similar terms by the Opposition in the other place. Amendment 39B, which the noble Lord, Lord Triesman, and I think is a more interesting amendment, proposes the establishment of “an independent review committee”, which would advise Parliament on what matters it regarded as requiring a referendum. We can all envisage what the composition of such an independent review committee would be. It would definitely contain constitutional lawyers, judges and constitutional experts such as the noble Lords, Lord Norton of Louth and Lord Hennessy of Nympsfield—they are plentiful in our House. It might contain a business person, a trade unionist, a representative of civil society and people from the nations and regions of Britain. Its purpose would be to advise Parliament on whether, in the particular circumstances that arise, a referendum would be a proportionate way of dealing with the issue in question. It would be given criteria such as whether it was a significant issue, an urgent issue that had to be dealt with in a short period, or an issue of national interest that required to be carried through swiftly.
These issues would be discussed by the independent review committee, which would advise both Houses of Parliament on whether a referendum was justified. This idea is in keeping with the spirit of the Lords Constitution Committee’s recommendations in its report on referenda. It stated that referenda should be confined to fundamental constitutional issues, but acknowledged the difficulty of defining in a full list what those issues were. At the end of its list of recommendations, the committee stated:
“This is not a definitive list of fundamental constitutional issues, nor is it intended to be”.
It seems that it is a very difficult thing to decide in advance. Therefore, it is right that there should be some kind of parliamentary mechanism that would decide what issues are of fundamental constitutional importance. On the question of how we do this, and the detailed set-up of a committee on such a process, we on this side of the House do not have a dogmatic view. However, we would seriously like the Government to consider this point as an alternative to the incredible complexity of putting in the Bill all the different varieties of referendum lock.
That is the logic of our amendment. In my remaining time, I will say why this is a better way for the House to proceed. In the debate about whether referenda are required, a judgment should be made about proportionality. Is the issue really of fundamental constitutional significance, or is it a relatively minor issue that does not justify a referendum? The value of the judgment on proportionality was brought home to me when I listened to the very thoughtful reply that the noble Lord, Lord Howell of Guildford, gave at the end of last week's debate. I will try to summarise the Minister's argument without traducing him. He said that it was all very well for us on this side of the House and on the Cross Benches and other parts of the House to say that we were in favour of a referendum on the euro, but why then should we not have a referendum on common European defence, on participation in the office of a public prosecutor or on border controls? These issues, he argued, were as significant as whether Britain should join the euro.
There is a point here of fundamental importance. The reason why we have to have a referendum on the euro is that one is either in it or out of it; it is a fundamental choice about whether one joins or not. However, issues such as a common European defence are much more subtle and require a judgment about proportionality. I do not want to criticise the Minister, for whom I have the greatest respect. However, in his argument on a common European defence policy, he stated:
“Allow me to elaborate on some of my remarks. A decision on whether to join a common EU defence is fundamental, as it could result in a common EU army”.—[Official Report, 9/5/11; col. 759.]
That is a total straw man in the debate about a European defence. Certainly it would be a fundamental constitutional issue if we were to set up European military forces. However, if one thinks about the realistic development of European defence in the next 10 or 20 years, we are talking about better rules for the harmonisation of defence procurement, which is a very practical matter. Does something like defence procurement really require a referendum? In the parlous state of our defence budget—we have heard today about how the Government are planning further cuts in defence—a practical man or woman would say, “We have to have more practical co-operation in Europe on defence procurement”. Do we really think that this is an issue on which the British people think they should be voting in a referendum rather than that the people they chose to represent them in Parliament should decide?
The same sort of argument about proportionality can be applied to other aspects of this Bill, such as the public prosecutor. We heard a lot from the Minister about how it is a fundamental issue in how we organise our legal system, but is it really? For instance, if it were limited purely to tackling financial fraud in the EU, surely this would be just practical common sense. In terms of proportionality, it is not a matter that would require a referendum, and nor would changes in Schengen. As a result of what is happening in north Africa, we may have to take steps towards much stronger rules on asylum, but is that something that fundamentally challenges our border controls? We need to make judgments about the proportionality of what is proposed, and in our opinion that can usually be done only by a parliamentary committee, ideally an independent committee, that looks at these matters.
The noble Lord seems to be saying that referendums should be held only on really important issues, such as whether we join the euro. Would he therefore agree that we should hold a referendum on something even more important: whether we stay in the European Union at all?
We all know the noble Lord’s views on this matter. The experience of the 1975 referendum was that it did not resolve the issue of whether we stayed in the European Union. We won a yes vote, but it did not resolve the fundamental issue. However, on issues such as the euro, there is a fundamental constitutional principle at stake, and it is right to have a referendum, so there are circumstances in which referenda are the right thing to do.
In the light of the AV referendum result, which I regard as the betrayal of the Liberal Democrats in the AV referendum by their partners, when I looked at the coalition agreement I was surprised by what it said. We are now told that the Liberal Democrats are going to adopt a much more muscular, robust relationship with their coalition partners. Well, on this Bill, let us have a look at what the coalition agreement says. It says:
“We will amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty”.
In other words, you would have a referendum on a big treaty, but the agreement continues:
“We will amend the 1972 European Communities Act so that the use of any passerelle would require primary legislation”.
Yet every page of this Bill fully and directly contradicts that coalition agreement where the agreement says that passerelles and other matters should be subject to referenda.
I, too, have a copy of the coalition agreement in front of me. While the noble Lord is right in what he says about bullet point three, he is very selective in his interpretation of what to pick and choose, because he does not notice that bullet point four says:
“We will examine the case for a United Kingdom Sovereignty Bill to make it clear that ultimate authority remains in Parliament”.
If the noble Lord had been watching the news, and was aware of government statements in the year since the coalition agreement was made, he would know that no sovereignty Bill is about to be introduced into either House of Parliament but that the areas where there might be changes in sovereignty—in other words, a transfer of power and competencies—might be covered for the use of referendums.
I have the greatest affection for the noble Baroness, but I think that her attempt to justify the fact that the terms of the coalition agreement have not been met in this case is neither muscular nor robust. I think, therefore, that our friends on those Benches have something to think about. What I am suggesting that our friends on those Benches think about is the merits of the amendments that this side is putting forward. We are offering a mechanism by which a lot of the unacceptable trivia in the Bill could be assessed in a proper way by an independent committee that would advise Parliament about whether they were fundamental or matters that would not require a referendum.
I suggest that there is possibly a germ of consensus in the coalition agreement. We on this side have moved our position from when Labour was in government because we now believe that matters such as passerelle clauses and simplified revisions of the treaty should be approved by a proper Act of Parliament. That is a significant move on this side of the House towards greater parliamentary accountability. I should have thought that the Lib Dems ought to seize that as an advance in accountability. We should confine referenda to these fundamental issues that your Lordships’ Constitution Committee said needed to be defined. An independent committee would be a good way of doing this.
I am sorry to have gone on at such length—
I intervene only briefly and thank the noble Lord for giving way. Is he not perfectly correct in general and in the specifics he mentioned? There is no apparent transfer of power, notion or concept built into the EPPO proposals. That is the European Union being allowed by the sovereign member Governments to deal with matters to do with any financial misdemeanours affecting Union finances. There is no extra transfer of power there at the margin at all. Why are the Government so obsessed? My noble friend the Minister kindly and co-operatively said at the end of the previous Committee session that he would focus on the important areas that the noble Lord has emphasised today in his remarks. However, he then goes back to say, “Ah, we must have the whole list as well. They are important as well”. There is no logic to it, particularly with the EPPO proposals.
I think the noble Lord, Lord Dykes, is right on that subject. The problem is the people who believe in the thin end of the wedge, but the way to deal with that is to have a proper process for deciding what is significant and requires a referendum and what does not in the form of an independent process that people will respect. That is what we are proposing in these amendments. It is a sensible compromise for the way forward that I hope the Government will consider seriously. It would resolve an awful lot of the big problems that people have with this Bill. I beg to move.
My Lords, the noble Lord referred to the two amendments as probing amendments. I think that they could better be described as tongue-in-cheek amendments. Similar amendments were moved in the House of Commons, but at least they applied to Clauses 3, 4 and 6. These amendments mysteriously apply only to matters dealt with in Clause 6. For the life of me I cannot understand why, as I am sure others will not either, if Parliament is to be involved in these matters, Parliament as a whole should not be involved. Quite obviously, members of the public will wonder what this mysterious body is. At least if Parliament as a whole was involved, they would know what was going on.
The noble Lord has made two points which reflect a misunderstanding of what this side is trying to propose. Parliament would be involved because it would be Parliament that would take the decision on whether a referendum was necessary on the basis of advice from either a Joint Committee of both Houses or some kind of independent committee which had real expertise on it. This is not being proposed tongue in cheek, but makes a serious point.
Of course I accept what the noble Lord says about the proposal not being tongue in cheek, but I certainly do not accept his argument. The fact remains that if you put in a Bill that a mysterious committee is going to have some say in the matter, you are moving even further away from a situation where the general public has any confidence at all that its views are considered when vital decisions are made. I fail entirely to see how giving a Joint Committee of both Houses a key role in deciding whether there should be a referendum will help to restore trust in the EU. I am bound to say—obviously this will not find favour with everyone in the House—that the House of Commons, controlled by the Whips, has never proved to be an effective check on the ambitions of the Europhiles, and this House, I have to say, seems to suffer from a built-in Europhiliac tendency. The idea of having a Joint Committee and expecting it to come up with a unanimous recommendation for a referendum is just pie in the sky, and I suspect that the noble Lord knows that perfectly well.
I remind the House that on 9 May, the noble Lord, Lord Hannay, implied in an unguarded moment that it was inconceivable that a Government would just give everything away for no gain. But the public are of the view that we have made a habit of giving things away. Sometimes Ministers have listened to anguished cries from the Guardian that if we do not agree with our partners we are going to be isolated, when it really would not be the end of the world if the others went ahead without us and, for instance, wasted their money on empire building like the setting up of the European External Action Service while we continue to benefit from the single market. I think that that would be a good idea.
Let us face it: sometimes peer pressure has got to work on the vain and on those who wish to be thought good members of the club with disastrous consequences like Mr Blair’s surrender over the rebate. I listened very carefully to what the noble Lord, Lord Liddle, had to say about that matter at Question Time today. I invite him to read with care various contributions made in this House on 4 February 2008 when we had a debate on the European budget. Every action of Mr Blair was dissected and examined with great care. All his convolutions, distortions and changes of front were brought out into the open. I do not think that any impartial person could honestly say that it is a very happy story. Governments are often not very good at saying no and Parliaments have gone along with them. That makes this Bill as it stands very necessary and overdue and makes the amendments very dangerous.
I agree and disagree with the amendments. I agree with the concept of proportionality which underlies them, and I think that we need to relate what we are doing to the real world. I do not like the complication that is built into these procedures, largely for the reason that the noble Lord, Lord Waddington, has just given. We do not need the additional commission to advise us. As for the Joint Committee of the two Houses, I do not know why we need that either, because the expertise is here. We need to reinforce parliamentary sovereignty. What worries me about the Bill—and is in conflict, as I understand it, with the coalition agreement and the terms read out by the noble Baroness, Lady Falkner—is that it takes away from parliamentary sovereignty by moving towards a plebiscitary democracy.
I shall illustrate my point about the real world with a couple of examples. I like the amendments not because they introduce complication but because they introduce the concept of urgency. In the real world, the very elaborate procedures that we are laying down might not fit very well. The examples that I take are in Clause 6(5)(e) and (j). Paragraph (j) states that we would require a referendum for,
“a decision under the provision of Article 333(2) of TFEU”.
That would permit using qualified majority voting for the following article:
“Expenditure resulting from implementation of enhanced cooperation, other than administrative costs entailed for the institutions, shall be borne by the participating Member States”.
Let us say that we had an enhanced co-operation activity, such as conflict resolution or election monitoring, involving less than the total number of member states. Such enhanced co-operation is governed by Article 333(1), which states that it needs to be within the framework of the common foreign and security policy. Article 333(3) states that the activity should be paid for by the member states taking part in it. It is possible to envisage, because it has arisen before, countries that did not feel particularly muscular militarily but wished to contribute. Germany has several times in the past been in that position; that is, it has been prepared to stump up but not send people. The decision that the Germans should be allowed to pay would require a referendum in this country under Clause 6(5)(j). The whole action would have to stop or, rather, the Brits would say, “No, I’m sorry, we can’t have your money, because if we took it we would have to have a referendum on it”.
This is not the real world. It cannot be right. Let us remember that the provision is not about the voting rules. Paragraph (j) is different from the reference to the same article in the schedule. Schedule 1 states that there would need to be a referendum if the voting rules were changed under that article of the treaty. In this case we have a specific decision on how we are going to finance this week’s expedition somewhere. Do costs lie where they fall? Germany says, “No, we would like to stump up. We think others should be contributing”. The Brits have to say no. The real-world consideration, which would be helped by the amendment of the noble Lord, Lord Liddle, is relevant here.
My second example relates to paragraph (e), which is about the euro. We all know what would happen if we were one day to decide to join the euro: the Act would go through this Parliament; it would be followed by a referendum; and if the result of the referendum were yes, the Minister would fly to Brussels to take the decision referred to in the Bill under Article 140(3) of the TFEU to make the euro the currency of the United Kingdom. Article 140(3) states:
“The Council shall, acting with the unanimity of the Member States whose currency is the euro and the member state concerned, on a proposal from the Commission and after consulting the European Central Bank, irrevocably fix the rate at which the euro shall be substituted for the currency of the Member State concerned”.
That is the decision—and our Bill is about what we do with decisions.
The decisions have to be brought back here in draft and have to be the subject of an Act of Parliament and then a referendum. But hang on—we have had the Act of Parliament: the issue upon which we wanted a great national debate and a referendum was on whether we should join the euro. The Bill states that the Minister cannot vote in favour of or otherwise support the draft decision about the rate. If we have a referendum on a Thursday about whether we should join the euro, we will know the answer on a Friday; the Chancellor of the Exchequer of the day will get on to his colleagues, the ECOFIN will meet over the weekend and the rate will be set before the markets open in Tokyo at three o’clock on Monday morning—it would have to be because the amount of speculation would be enormous.
This is a small technical point but we need to look at the drafting of the Bill to ensure that we do not create an unworkable monster in the real world. We know what should happen—the sequence is Bill, Act, referendum, decision—but we will not know at the time of the referendum what the rate will be; by definition it will be different on the day from what it was during the referendum campaign. So there is something wrong with the drafting of Clause 6(1) and (5)(e).
We can get it right and I am not arguing that there should not be a referendum on joining the euro. However, I am arguing that there should not be a referendum on some of the extremely minor items in the Bill, such as the one covered in paragraph (j) about enhanced co-operation and its financing.
My Lords, I completely agree with the noble Lord, Lord Kerr of Kinlochard, on the need for proportionality and I accept that things will happen that we may not be able to foresee when we are drafting legislation and giving a legal basis to aspects of future decision-making. However, before I speak to Amendment 39B, I should like to say a few words about Amendment 39A.
I welcome the explanation of the noble Lord, Lord Liddle, of how the Labour Party has moved considerably to advance accountability. It is particularly welcome given that it failed to provide for that in the time that it was in office. I do not often find myself echoing the words of the noble Lord, Lord Waddington, very much, but this afternoon’s discussion on the budget rebate was a very useful one to remind us that even when it was in office it took accountability so lightly that when the budget provisions were changed, as it appeared from today’s discussion—and nobody on the Labour Benches rebutted it—in 2005, the Chancellor of the Exchequer did not even agree with that change. Yet it happened.
I turn specifically to Amendment 39A. The noble Lord, Lord Liddle, explained what his amendment would do. I have some sympathy with the idea that you would have a level of scrutiny here that should determine what should happen—in other words, that Parliament should take a decision, rather than having a referendum. But my question would be to the noble Lord about his proposed new subsection (4B), which calls for a resolution of each House of Parliament. It is not entirely clear to me what would happen if one House of Parliament approved of holding a referendum but the other did not. Presumably, we would have a situation whereby a Joint Committee could have recommended a referendum and, potentially, the Commons would have agreed with the Joint Committee but perhaps this House would not. I wondered whether he would be able to tell us what would happen, in that case, on Amendment 39B.
In this variation, the review committee takes into account the significance, urgency and national interest at stake in its examination of the draft decision. Both urgency and national interest are, I say to noble Lords opposite, deeply subjective. We thought, with the European financial stability mechanism before us in February, that there was huge urgency in agreeing on what to do, because of the Greece, Ireland and Portugal scenarios. In fact one could argue that there is still considerable urgency, given where Spain—and, potentially, Italy—is. But the fact that other countries may be covered by that by the time the facility comes into being in 2013 suggests that something that one sees as urgent at a particular point in time may as events unfold not be quite as urgent as we thought.
Let me come to a consideration of a national interest. We know that this is notoriously difficult to define in international relations, which is one reason why this concept of national interest, which we all cherish and hold dear, has never been given legal force. I recall when I was a student reading the realist American scholar, Hans Morgenthau, who in 1951 wrote his book In Defense of the National Interest, which was contested throughout the 1950s, during the Cold War, and all through the 1960s, and is contested still today. It has never taken off as an argument that was legally testable in a court of law, so I would be concerned—while I see what the noble Lord means; we know the national interest when we see it. We can touch it; we can feel it; we can smell it. But to define it in legislation would be extremely difficult to do. I therefore suggest some caution about agreeing with the amendment. On Amendment 39B, I ask the noble Lord what he would do if one House went in a different direction from the other.
My Lords, I would like to speak very briefly in support of this probing amendment, not because I am in total agreement with every detail of it but because I think that it addresses a very serious problem to which I alluded at the end of Second Reading, when I said that the effect of the Bill if passed unamended would be to lock the door and throw the key out of the window. I believe that that is an accurate description of what this Bill will do if not amended. These amendments are a sincere and quite well thought-out attempt to keep the key in the hands of the Government and the majority in both Houses of Parliament to some extent, subject to the reporting of a committee and so on.
I think that this issue should be taken a bit more seriously, frankly, than it is by those on the other side of the House. If the noble Baroness, Lady Falkner, will forgive me for saying so, about the piece that she quoted—I hate to have to construe somebody else’s coalition agreement, which has nothing to do with me—the sovereignty issue to which she referred and which she read out is dealt with in Clause 18, not in the clauses that we are discussing now. We will probably have the delights of spending a whole day discussing that next week but it has nothing whatsoever to do with referendums. No one has ever suggested that it should be. The suggestion was that you should inscribe in the Bill some test of what the basis for European law in this country is. Anyway, I suggest that the Government really ought to think about this enormous multiplicity of referendums which are provided for and which cannot be dealt with just by casual remarks such as, “Oh well, don't worry—they won’t ever happen”.
Perhaps I might commend to the Ministers on that Bench the extremely eloquent speech made from those Benches all of an hour and a half ago by the noble and learned Lord, Lord Wallace of Tankerness, when he rejected the request for a referendum on the Fixed-term Parliaments Bill. He set out the essence of the arguments that are being put against the large number of referendums called for in this Bill and the reasoning of this House’s Constitution Committee, which explained carefully why referendums should ideally be limited to matters of major constitutional import. He listed some of the main examples of those—none of which, other than joining the euro, are contained in this Bill. That really deserves serious consideration before we move to Report.
At the moment, those of us who have been putting forward amendments have indicated a degree of flexibility and I am sure that there will be a willingness to demonstrate that flexibility when we move to Report,but on the Government’s side there has been no indication of any flexibility whatsoever. In his contribution to the debate on our last Committee day the noble Lord, Lord Howell, very reasonably talked about the big five. For one moment, my spirits rose and I thought, “Gosh—light is breaking through. The sun is going to shine around on the government Bench and they’re going to understand that there are very important issues in their list and less important issues”. Alas, it was not to be because he went on to say that although there was a big difference between the big five and the others, the prescription for dealing with them was identical: a referendum. I am afraid that that was a bit of a false dawn. However, I hope that the Government will think again about this in the light of these amendments and others, which we will discuss when we come to Schedule 1, to reduce somewhat the number of issues which are put to a referendum.
From anybody who has tabled any of these amendments, there is no disputing that the Government’s insistence on greater parliamentary scrutiny of any changes made in Brussels is accepted. All the amendments that are being spoken to, including these, accept that. That is to say: primary legislation will be needed in place of the Lisbon arrangements—which this House ratified and which the noble Baroness, Lady Falkner, voted for—which said that only a resolution of each House was needed. Okay, we have moved on from there and there is no contest about that, so those of us arguing against excessive referendums are doing so in the name of enhanced parliamentary scrutiny.
Finally, I do not share the contempt that the noble Lord, Lord Waddington, has for the decisions of all British Governments of about the past 30 years or the belief that they all sold out—or contempt for all the Houses of Commons and Houses of Lords which voted to ratify those agreements. I worked for quite a number of those Governments, including the ones in which he served. I do not believe that Mrs Thatcher sold out the national interest when she agreed the rebate or when she agreed the Single European Act, so we really should not treat these matters in quite such a negative way. I do not remember serving a British Government who sold out the national interest.
My Lords, I wish to intervene briefly on these matters. Although the amendments have been described as probing, I hope that the Government will be able to give a considered response to this interesting set of ideas, particularly the second amendment, which needs attention from the Government. On the most recent Committee day, hopes were expressed that the Government would respond to the constructive suggestions made in a raft of amendments. I hope that the Government will respond in that way today.
Ministers are definitely responding in the sense of having discussions outside the Chamber about what might be parts of the Bill in future. I hope that that will continue and people would be grateful for that. Any answers that could be given in the Chamber to take us further forward to make the Bill more sensible, more proportional—to use that important adjective—and more balanced would be very welcome.
As an example of messages sent by my noble friends the Ministers, I appreciate that the noble and learned Lord, Lord Wallace, kindly sent me a copy of the Daily Express attack that was mounted on his correct and sensible words in the previous Committee session. This is relevant to these amendments as well. I will not quote every word that Mr Patrick O’Flynn wrote in the Daily Express on Saturday 14 May because it would take too long, but he said that perhaps Mr Clegg’s ambition of changing the House of Lords would be justified after all. Although the Daily Express would not normally support that kind of thing—I am paraphrasing—on this occasion he was attracted to Mr Clegg’s ideas because he had just discovered that,
“the current way of selecting peers—appointing establishment time-servers—has turned it into a hotbed of European federalists”,
referring to the debates in the most recent couple of Committee sessions. He continued:
“The Lords is now full of people I have always regarded as ghastly pro-EU creatures … turncoats such as Lord Davies of Stamford and Lord Dykes”,
“such as Lib Dem Lord Wallace and returnees from the Eurogravy train such as Labour’s Lord Tomlinson. Much of the time they spout rubbish about paying homage to Brussels. They were at it again on Monday”—
that was 9 May—
“turning their guns on this newspaper’s crusade to get Britain out of the EU. Lord Wallace complained about the opposition of the Daily Express to the flying of the EU flag from British public buildings … Pearson reminded the pro-Brussels coven: ‘Millions of people in this country actually welcome the campaign to leave the EU which the Daily Express has started’”.
I think that the total number of people who supported the Daily Express’s dodgy little campaign was 370,000, which is one and half times the average size of a London borough, representing the whole nation. That shows how few people actually read the Daily Express. Mr O’Flynn then concluded that the noble Lord, Lord Pearson,
“challenged Dykes to admit ‘that the absence of the European flag on most of our public buildings reflects the wishes of the British people’”.
My Lords, before the noble Lord continues with his line on the Daily Express, when he mentions those 370,000 people, does he realise that that is the most successful newspaper campaign of this kind that there has been? Each one of those people took the trouble to take a pair of scissors, fill in the form, cut it out, put it in an envelope with their own stamp on it and send it to the Daily Express. He should not dismiss this campaign so easily. It is growing, it is going to go on and it is going to win.
I think that there have been examples of much larger figures when money has been offered by newspapers, although on this occasion the Daily Express at least had the grace not to offer any money. We know that the whole thing is got up by the British press, a small number of headbangers in the parliamentary Conservative Party in the Commons, UKIP, the BNP and other entities like that—not many people. I am returning to the amendment as quickly as I can, but I am quoting the Daily Express’s remarks to show the background to the whole campaign. Clause 6 would directly affect the status of all the provisions in it and make them subject to referendums. It has nothing to do with the common sense or logic of it.
Another letter, to the noble Lord, Lord Flight, on his points, was sent from my noble friend Lord Howell, who has kindly sent copies to other participants on these debates. The very acceptable reply gives ample intellectual and practical cover for the notion of the Government now having the imagination to remove some of the other sub-subsection areas from the classification of being subject to a referendum. We therefore concentrated on the three, four or five areas which could be retained—we differ on those, although some people say we differ only on the euro—starting with euro inclusion, which is generally regarded as the most important, as already supported widely in the Chamber in recent debates. We will therefore reduce the future nightmare for hapless Ministers suffering agonies of confusion in the Council of Ministers and receiving the wrath of their counterparts for paralysing the Union on literal trivialities.
When a Bill is complex and incomprehensible, and far too verbose and heavy because it has to cover so many points, I feel sorry for the government draftsmen who have to assemble it—in quite a short time, I imagine. They would probably regret it, and wish to look at it again. When you feel it is complex and incomprehensible, you turn to the Explanatory Memorandum, but that does not help at all. In respect of what the noble Lord, Lord Kerr, was saying when he was particularly concerned about subjection (5)(i) and (j) of Clause 6, paragraphs 78 and 80 on page 18 of the Explanatory Memorandum show once again how obnoxious Clause 6 is compared to the earlier clauses. I will not go into detail, or I will take too long. However, the last part of paragraph 80 refers to moving from unanimity to qualified majority voting:
“This is in line with the provisions of subsection (5)(b) above. Such a move would not require a referendum, however, if a referendum had already been held to approve a decision to move from unanimity to qualified majority voting in accordance with subsection (5)(i) in the same area of enhanced co-operation. To do so would in effect mean holding a referendum on whether to change the role of the European Parliament or not, and would not be a transfer of power or competence”.
I suppose that you might say that that would be literally true, subject to carefully re-reading it again. However, the noble Lord, Lord Hannay, talks about throwing the key through the window. That would not, of course, be a good idea because some sensible pro-European pragmatists would pick up the key. They would find it in the street, come back in and unlock the secrets. You have to put it down a hole to ensure that the whole thing is abandoned. An explanation like that shows the bad quality of a badly drafted Bill, particularly this clause.
I probably would not have risen except for the speech of the noble Lord, Lord Dykes, to which I will return in a moment. As for the amendment, at this time of night it is confusing and difficult to understand what its result would be. As far as I can see, it attempts to introduce parliamentary control over the items which might well attract a referendum. I hope that that is right, because I am of course always in favour of better parliamentary scrutiny. The problem is that all our experience so far shows that, one way or another, the Government manage to evade parliamentary scrutiny. For example, last week they overrode the European Union Committee’s reserve on the matter of patents. They did not do so on any reasonable grounds, except that the Hungarian presidency wanted them to do so. The Government overrode the parliamentary scrutiny of the House of Commons.
No, I specifically excluded the House of Lords. It was the House of Commons. The House of Commons had before the meeting of its committee a Member of this House, who tried to explain exactly why the Government acted as they did. I hope that when the noble Lord, Lord Liddle, winds up, he will assure me that this would be better parliamentary scrutiny than what is contained in the Bill.
I come back to the noble Lord who was excoriating all the people who are opposed to further European integration. He well knows that I was never in favour of joining the EEC or the Common Market, as it was. I still believe that this country would be better off out of it. The Daily Express has been trying to give people the opportunity to have a say whether we should remain in. I noticed in last Sunday’s Sunday Express that one of Nick Clegg’s most senior advisers—Mr Tim Farron, the president of the Liberal Democrats—had called for a referendum on Britain’s membership of the European Union. He said that Britain’s relationship with the EU has become so poisonous—poisonous, mind you; I have never used that sort of language—that voters deserved a chance to express their views in a referendum on membership of the bloc. Those are not the words of any Liberal councillor; he is the president of the Lib Dems. The noble Lord presumably excludes his own president from his excoriation. He will have to be careful whom he excoriates in the future.
The president of the Liberal Democrats is very well known to me. He is a supporter of the European Union. He simply believes that the only way to end the misrepresentation of what the European Union is doing and the attempts to get us out without directly facing the question of “in or out” is to have an “in or out” referendum. He believes, as I do, that such a referendum would be likely, in the end, to confirm that we should stay in. The trouble, as the noble Lord, Lord Stoddart, knows even better than I do, is that within less than five years of the previous referendum, which gave a clear decision in favour of staying in Europe, the Labour Party officially decided to leave the Union. That does make referenda look a bit less strong than one might like to believe they are.
I remember the 1975 referendum very well. I took part in it myself. If Mr Farron believes that we should have a referendum because our relationship with the European Union has become poisonous, he is right and I agree with him. However, it is not only UKIP—there are Labour Members who are opposed to our membership of the European Union and, indeed, quite a lot of Liberals. When he believes, rightly, that our relationship with the European Union has become so bad that we need a referendum, I would hope that people, particularly from the Liberal party, would stop criticising those who believe that, after 50 years or so, it is time the British people had another chance to say whether we should stay in or get out.
The noble Lord is absolutely wrong on this. The 1975 referendum was held because of the failure to hold a referendum before we went in. The Labour Party was having great trouble—I remember it well because at that time I was a member of the Labour Party—and to heal the split that had grown up within it, the device of a referendum was put into operation. However, that occurred only two years after our entry into the Common Market and we had not felt the effects of that. Now that we have been in it since January 1973, people have experienced what it means, what it costs and how it affects them. That is why so many people now are beginning to believe, or already believe, that we need to test the view of the British people on the matter. What is wrong with that? People like the noble Lord, Lord Dykes, have said that the European Union is the best thing since sliced bread and that the country is behind it. They said the same about AV but, when people voted on it, they found that they were not with them at all. I believe that they should test the people’s opinion. I promise that if we have a referendum on being in or out of the European Union, and the people say that we must remain in, I shall go away and have a nice retirement. Until then I shall continue to press for a referendum. I hope that eventually the noble Lord, Lord Dykes, and others like him, will come round to the same position as that of his party’s president.
My Lords, I do not want to follow my noble friend Lord Dykes too far as I am not sure that his remarks were strictly in order. We have tended to have rather a lot of general remarks. I am sure that the Daily Express is highly flattered by the amount of time that has been devoted to it in these debates. Listening to my noble friend Lord Dykes, I remembered Enoch Powell’s remark that politicians who complain about the newspapers are rather like fishermen complaining about the weather. It is not the Daily Express that has caused the rise of the True Finns party. It is not the Daily Express that has caused the Germans to become more sceptical about the euro. It is not the Daily Express that has caused a very considerable dramatic change in opinion in Holland about the European Union generally. If my noble friend wishes to understand why the Daily Express manages to get people to sign these petitions, he ought to read his own speech because it is exactly remarks such as his, abusing the feelings of ordinary people, which increase the number of people supporting these petitions. To seek to deny that there is concern among ordinary people about overcentralisation in the European Union is to neglect public opinion in a rather cavalier way, if I may dare say so.
I want to ask about two points that the noble Lord, Lord Kerr, made in his extremely interesting speech. The first concerns the point about Clause 6(5)(j). If what the noble Lord said was right, this was not about powers but about a policy. He instanced a policy decision and the hypothesis whereby, under enhanced co-operation, the Germans, while not participating in it, might wish to make a financial contribution to it. That is rather an important point because one of the fears one would have in Britain, as a country unlikely to participate in some of the enhanced co-operation projects, is that we might end up paying the bill. That would be one of our natural instinctive reactions. It would be extraordinary if, in fact, Germany wanted to pay part of the bill and that was not allowed without a referendum in this country. I cannot believe that the situation is quite like that, but I very much hope that my noble friend can clarify that point.
Secondly, I wanted my noble friend to comment on the remarks of the noble Lord, Lord Kerr, about whether one would have to have a referendum on the exchange rate as well as the decision to join the euro. Normally, when I was a Minister, distinguished civil servants such as the noble Lord and his noble friend Lord Hannay, and people of their ability, talent and knowledge, had ingenious ways of solving problems and they could always refer to some obscure part of the treaty to enable us to decide what to do. On this occasion, I regret to say that the noble Lord, Lord Kerr, seemed to be using his ingenuity to make things more difficult, rather than to consider this matter more seriously, which is what he normally does.
I do not believe that it would be possible to put the rate and the decision in principle to join the euro together. I certainly do not believe that the referendum would be about the rate. No one would be remotely interested in that. The referendum would be about whether or not we joined the euro. I do not see, as the noble Lord seems to do, some tremendous market problem because the rate announced on one day would be implemented on another. There was no such problem when the rates for all the individual currencies that formed the euro were announced well in advance—a year or more in advance—of the date on which the currency was set up. It was announced that there would be a date on which the currencies would be irrevocably linked together in a grid. Naturally, the market adjusted to the decision that had been made, rather than the other way round. I do not see the problem that the noble Lord, Lord Kerr, outlined, but I should be grateful if the Minister could reassure me that my understanding and conclusions on that matter are correct.
More generally, I obviously could not support the amendment because in essence, under a disguise, it tries to get rid of the lock imposed by the Bill. While we hear a lot of criticism of the vetoes that will be subject to the referendum provisions, we never hear anything about the 50 vetoes that are left intact, in the sense that they can be abolished without a referendum. There are 50 areas under the Bill where unanimity is still required, and a referendum will not be required if they are removed by whatever procedure. A degree of judgment and selectivity has thereby been exercised by the Government.
We tend to forget in these debates that after Maastricht, Lisbon and Nice unanimity remains on certain articles. They remain there for a very good reason. Many countries, not just Britain, have wanted unanimity to remain and they do not want easily to surrender it, which is one reason why the idea that you will get a multiplicity of referenda on what the Opposition consider to be minor subjects will not actually happen.
My Lords, I should like briefly to return to what the noble Lord, Lord Dykes, said when he saw fit to expatiate on the Daily Express’s anti-euro campaign. At an earlier stage in our debates, he said that he had examples of 125 anti-euro headlines in the hated, Murdoch-ite, Barclay-ite and Desmond-ite press that some eminent think tank had proved to be wrong in every respect. He promised to let us have those figures and the factual debunking of those 125 stories. I wrote to the noble Lord about 10 days ago and asked for those figures, and still I have not received them. Can he provide them to the House or just to UKIP Members?
My Lords, I have a feeling that we have reached the stage in the debate when we could leave the press and the Daily Express, and move to the precise issues and amendments in the debate.
I wanted to press the mover and supporters of the amendment on one or two points. We have heard a lot during these debates about how inconvenient it is in the Council of Ministers if things get held up by the British people being consulted and the whole of that process in the United Kingdom. I ask those who support the amendment: what is their timeline for the independent review committee? It has to be appointed by the Secretary of State. Surely it will take a long time to be appointed, to meet, to deliberate, to report and all the rest of it. Are they not extending the inconvenience which they see as putting a spoke in the wheels of the European juggernaut?
Secondly, they seem to have great faith in the scrutiny of Parliament. I must repeat to them the figures given to me by the noble Lord, Lord Howell, on 7 February, when he told me in a Written Answer that in the years from 2004 to 2010 inclusive, the scrutiny reserve had been overridden no fewer than 347 times in your Lordships' House and 364 times in the House of Commons. Those figures, apart from being almost unbelievable and, I should have thought, destroying any pretence that parliamentary scrutiny was worth anything in the process of European legislation, must remove some of the confidence that the noble Lord has in his amendment.
Those are interesting and important points. The noble Lord, Lord Liddle, who was the father of the amendments, or one of the fathers—anyway, he has some paternity—will no doubt comment on them after me, but I thought that I should address some of the serious points. Not everyone has been sharply focused, but we have heard some extremely interesting observations and responses to them. I would like to express the Government's view.
Just to be clear, I say that the two amendments would make the question of whether to seek the consent of the British people in respect of the big 12 decisions in Clause 6—that is the big five or six decisions and then the whole section in Clause 6 which governs the surrender of the veto—subject to a small committee of either both Houses of Parliament or an independent review committee. The assessment of the committee, via the composition, would then be validated by a short debate and a single vote of each House of Parliament. That is what the amendment states.
That design—which, as the noble Lord said, was proposed only as a probe—would frustrate the whole purpose of the Bill. Why would it do that? I will make the general point; I will come to the detailed ones in a moment. The amendments would, in effect, replay the history to which my noble friend Lord Waddington referred, because they would hint at referendums being held with the prospect that people would once again be denied their say because, in this case, some small committee of experts—or a committee of two Houses of Parliament—had made decisions. That undermines the whole intent and thrust underlying the Bill, which is designed to rebuild trust by ensuring that the British people can decide on the key decisions affecting the future course or expansion, if that is what is required, of the competences and powers of the European Union. By going into the detail—and I can see that the detail is considerable, because the legislative patterns of the European Union are very complex and detailed—the Bill makes clear the transfers of power and competence on which the British electorate would have the right to be consulted. However, the amendments would seek to unpick that by making recommendations in small committees.
Therefore, in effect, the British people would be denied the say that they want when EU powers are to be expanded. Very few seem to want that anyway and I am very puzzled by the sudden passion of the Front Bench opposite for an expansion of powers. The British people would miss yet another opportunity to regain trust, further exacerbating the electorate’s disconnection with, and cynicism towards, the European Union. That is what the amendments would do and that is why I am glad they are only probing amendments and not a serious intention to undermine the whole purpose and spirit of the Bill.
Can the noble Lord give me one or two examples of the extensions that he believes this Front Bench supports and is enthusiastic about? I ask that because, certainly during the previous day in Committee, and I think that he is also inferring it tonight, it was suggested that we were in favour of the possible production of a European army—something to which I was explicitly opposed as a Minister, as I am tonight—and the abandonment of Schengen, to which I have been explicitly opposed, as we were in government. What are the examples? These are either straw men or there is substance to them.
My difficulty in answering that question is due to the difficulty that the Opposition have in stating why they want particular treaty amendments and expansions of the powers and competences of the European Union. When we have pressed on this matter, it has been a bit like “King Lear”: the Opposition seem to want to do “such things” and there will be uncertain futures in which new powers will somehow be needed for the European Union. Therefore, they want to amend the Bill by removing areas where the Bill would prevent the surrender of the veto. That would not prevent activity, because a huge range of competences accorded to the European Union allow it to be highly active in all these areas. However, the Opposition want to remove the vetoes on the big decisions. I think that they want a referendum on the euro, although I am not at all sure about the others and I want to go through them as we discuss these matters. The Opposition have not answered that. Why do they want these huge treaty changes, and why do they want the vetoes removed? It seems to me beyond understanding that they should want vetoes removed when so many powers and competences are now accorded to the European Union, and they can do all sorts of things to achieve the kind of Europe that we want in the future. If the Opposition have some new ideas for expanding the powers of the European Union, let them state them, otherwise we are left with a kind of “King Lear” situation—they will do “such things” as it is too difficult to mention at this time.
I want to turn to the 12 decisions in Clause 6, which cover highly sensitive areas. When I heard the noble Lord, Lord Liddle, call some of them trivial, it made me, in the words of Hilaire Belloc, gasp and stretch my eyes. When one looks at the reality of them—their real-world implications—they are anything but trivial. The big five decisions under Clause 6 include joining the eurozone, and there seems to be a general consensus that there should be a referendum on that. Incidentally, I reassure my noble friend Lord Lamont that there is not really a problem there at all. The referendum would take place before the UK took the decision, and the exchange rate would then be struck at a certain point in the middle of the night or whenever it was technically advisable to do so. I think that my noble friend put that in perfect perspective.
On the provisions relating to EU common defence, I think I heard the noble Lord, Lord Liddle, say such decisions could not necessarily lead to anything too serious—I do not want to parody him—because it was a complex issue and it might be desirable, I suppose he was saying, to give up the veto or decide to join without a referendum because not too much harm could come from it. That is miles from reality. In fact, under an EU common defence policy—on which we would urge there should be a referendum—we would no longer be able to decide independently which situations and developments we should respond to and which situations represented a threat to our national security, we would lose our ability to decide unilaterally which operations we would mount and it would no longer be our choice alone whether we should act independently or with whom we should act in concert. Of course, in this modern world we will always be acting in concert, but we decide. To say that is in the trivial category seems to me to be taking off to another planet.
I cannot recollect using the word “trivial”, to be quite honest. The key point we were trying to make is that, when he talks about a common defence as though we were going to pool all our military and have a common air force and a common army and all the rest, that is a complete straw man. That is not what anyone on the continent is proposing. The real issues in European defence are ones such as why we have—I cannot remember the precise figure—400,000 people under arms yet we can manage to mobilise only 5,000 for a particular operation and why, in terms of bang for the buck, Europe is so unbelievably inefficient, given all the different national procurement systems. When we are up against it on the defence budget, the Government are saying they are not interested in common procurement and how we make that work. What we are talking about is very small-scale, step-by-step, gradual changes that would be useful, not suddenly deciding that we want to have a common army and a common air force. It is ludicrous to say that the Opposition are in favour of that.
The Maastricht treaty and other treaties make clear that common defence means common control and common finance. There may be all sorts of arrangements short of that with some aspects of existing competencies already available to the European Union for all kinds of co-operation. I am going to come particularly to the question of enhanced co-operation and other military aspects in a moment. The noble Lord is splitting hairs. In the treaty it is perfectly clear what this step would involve. He says that there might be just one small step and it will be all right because we can have adjustments later on; that is not how it really works and certainly not how it works in law and under the treaties.
Let me move on, as I have plenty more to say on the other areas that were apparently described as trivial. Those included abolishing border controls—I feel it absolutely extraordinary to put that in the trivial category, as it is a major issue. Joining the European public prosecutor system, which is already in the treaty, or extending its powers when we had joined it is a very serious issue affecting the whole of our judicial system. Then we come to—
I do not think we are going to join the EPP. The previous Government did not want it, this Government do not want it and I suspect a future Government would not want it. The issue here is whether, if we were in the system and it sought to expand its powers, we would have been right to give up the veto or would we hope to achieve advance by unanimity. Would it not be more sensible, particularly in the legal areas that the noble Lord knows so well, to advance via a system of solidarity, unity and consensus, rather than by seeking somehow to move into the QMV area? These are serious matters that affect the overall pattern of our judicial system.
Citizenship is another issue, and social and employment policy another. I thought that everyone nowadays recognises that we need to keep social and employment policy as near the people, the shop floor and the labour market as possible, rather than see it move further away from the powers of this Parliament by removing our veto. We will no doubt discuss justice and home affairs a great deal later. There are all kinds of institutional treaty revisions where unanimity and consensus are highly desirable—I would say essential—such as appointing judges and advocates-general, and devising numbers and systems for appointing commissioners, changing the composition of the European Parliament and a lot else as well. These are not trivia, but very big issues indeed. Each has been and continues to be a subject of major debate. Were we to give up the veto—there seems to be great confusion between what we can do within the existing competences and what would happen if we gave up the veto—each would involve a considerable transfer of power to the European Union.
I have dealt with the question of the euro. My noble friend Lord Lamont has put that quite clearly. I will deal in particular with the intervention of the noble Lord, Lord Kerr, on Article 332. These are complex matters. It seems a strange proposition, and I know that it is difficult to understand, that we should give up the veto, or that we should be prevented from giving up the veto, by the referendum lock in a decision under Article 332, which covers decisions to allow expenditure on enhanced co-operation to be borne by member states other than those participating. That sounds small and obscure. However, a move to QMV in this area would allow participants in a future area of enhanced co-operation to push through a decision that the expenditure of that arrangement would be borne by all member states through the budget, which would mean that member states that were not participating for good reason would still have to pay for it.
There is a very good example of this. If Germany agreed to pay for someone else's defence activity, would we need a referendum before we could agree to anything in Schedule 1? No, of course we would not. Schedule 1 is not about decisions taken on these legal bases, but about any question of giving up the right to say no if a proposal is not in the national interest. That seems to be a perfectly reasonable item to include in the Schedule 1 list of vetoes that we do not want to give up, and which it would not be in the national interest to give up. The more one goes through these far-from-trivial, and in fact highly important, issues—each one would be likely to trigger a major debate in this nation—the more one is left wondering why anyone should want the United Kingdom to go for QMV and throw over unanimity in any of these areas. It is very hard to understand why anyone would want to do that.
Again, is it not distinctly possible that QMV would have considerable benefits for the United Kingdom? With unanimity, things that we want to do can be blocked by another member state. Is it not best to have the decision about whether to go for QMV taken by Parliament?
I have always found this argument very curious. To go to QMV requires a unanimous decision by those involved in taking the decision. The suggestion is that a country that is anxious to protect its national interest by blocking the move to QMV should nevertheless vote for QMV and for the power to be overridden by itself. That seems to be a turkeys-for-Christmas argument that does not add up in the real world. To imagine that by the muscle of QMV—I will not call it a sledge-hammer—one is going to get other countries to fall into line with a proposition that we might like to see pushed through is unrealistic. Why should they vote against themselves? That is not the way the pattern is ever going to work. The truth is this—my noble friend Lord Lamont touched on it—that the reason there is a long list of items in Schedule 1—
The Minister has, with enormous eloquence, destroyed the case for the Single European Act and the single market. I believe he was a member of the Government who negotiated and ratified that. I can accept that there are areas of unanimity that we will never want to allow to be subject to QMV, such as taxation. That is quite clear. We will not allow them to be, and because unanimity is required to move from that, it will not happen. There will not need to be a referendum or anything else. The root-and-branch description he has given of national interest is frankly completely contrary to the facts. The Single European Act, which provided for qualified majority voting in a number of areas of technical barriers to trade, which had been blocked for many years, has been to this country’s interest. The Germans, who voted for the Single European Act, found themselves being voted down on the banking regulation. They willed the use of QMV, and they accepted the consequences. This country has never been put in that position. I do not think we should generalise this argument. There is no dispute that there are areas where any British Government are going to refuse to move from unanimity to QMV.
I do not want to sound critical of the noble Lord, who has had such experience in these things, but I have to ask where he has been because this Bill is about the present and the future. It is not saying that we can unravel the Lisbon treaty or that we should revert from QMV back to unanimity on a vast number of things where there is QMV. This Bill does not take back any competences or powers, although there are people in this House and another place who would like to consider that some of the powers are somewhat out of date in the central situation and should perhaps be revisited. It is not about that at all. This Bill is about further treaty changes and further transfers of power.
Here I agree with my noble friend Lady Williams. I suspect that most people—not the noble Lord, Lord Pearson—think that we are right to be good Europeans and to be effective in the EU, that we have given the European Union enormous powers and that almost anything we want to do can be achieved within those powers and with legislation within the existing competences, but that the case for allowing a further expansion of the powers and competences without consulting people who feel that time and again they have not been consulted is a very weak case. The case for not allowing people is very weak, and the case for allowing them is extremely strong. That is what this Bill is about, so I do not understand the noble Lord’s intervention about the past. It just does not add up.
Does the Minister not agree that the point made by the noble Lord, Lord Hannay, is in fact a misunderstanding of the purpose of this Bill and that his remarks and the remarks of so many of those who oppose this Bill still relate to overwhelming ownership by government of all these decisions? The purpose of the Bill is to bring the British public and the voter into that decision-making process. The focus of the Bill is in fact quite different.
My noble friend puts the matter with wonderful clarity. The truth is that not only is it not in our interest to remove the locks on so many aspects that the noble Lord finds so difficult but that many member states, not all of them, like us want no such thing as a removal of the veto in so many areas. Indeed, this explains why most of the areas requiring unanimity are in the treaty in the first place, remain in the treaty and are in Clause 6 and Schedule 1.
I have a strong preference for interpreting what I say myself and for not having it interpreted by another Member of the House. The reason I spoke as I did about the past was because the Minister spoke about it himself and expressed very strong views about the total unacceptability of movements from unanimity to QMV and about why it was inconceivable that any country would ever agree to that knowing that it might then be voted down. I gave one or two examples of why that was not inconceivable and why that had actually happened and had been in the British interest.
I am receiving strong hints—correct hints, I think—that not too much more time should be taken up from this Dispatch Box on these matters, and I will leave that debate aside for a moment.
This Bill is about a further expansion of competencies and powers; it is not about unravelling the past, because we are not in a position to do that, although some would like to. It remains unclear to me why the Opposition want more competencies and powers for the European Union; I am very interested that that is now the official position of the Opposition. I am longing to hear how they are going to deploy that and expand on it in the coming weeks and months.
Let me finally turn to Amendment 39B, which states that the committee must have regard to the urgency of the draft decision. Again, this shows a lack of understanding—possibly through my deficiency in being unable to convey how the system actually works, although there are other people in this Chamber who know it much better than I do. As I tried to explain previously on Amendments 16A and 16B, and as my noble friend Lady Falkner rightly said, one could think of few more urgent things than stabilising the eurozone. It still needs doing, of course, yet the use of the simplified revision procedure to enable member states in the euro area to set up the ESM to safeguard the financial and economic stability of the euro area will take 21 months to finalise. It was agreed in March 2011 and approved at the end of 2012. How could anyone consider that to be urgent? I do not understand what the “urgency” word is doing in that amendment.
There are a couple of other weaknesses in this probing amendment, which I suspect the noble Lord, Lord Liddle, who is extremely experienced in these matters, is well aware of. These amendments do not seem to take account of the work of our excellent scrutiny committees. I know that the noble Lord, Lord Pearson, thinks they are not paid enough attention. There is always the point that our scrutiny should be more effective, but it does go on and it is conducted with great vigour and assiduity under the leadership of people like the noble Lord, Lord Roper, in the European Union Committee of this House. It is within their gift to make recommendations similar to those prepared by the referendum committee at the time when Parliament came to debate the primary legislation required under Clause 6. It could be done there.
Finally, the amendments do not seem to take into account the need for primary legislation—the point that the noble Lord, Lord Hannay, is reminding us of—in all these situations, which would provide for full parliamentary consideration of the decision in question through the rigour of the legislative process. It is therefore not clear how the provisions for resolutions of Parliament would fit with the requirements earlier in the clause for an Act of Parliament. Nor is it clear what would happen if one House approved the recommendations of the committee and the other House did not. Therefore, there is no need for the additional complications and opportunities for prevarication, because that is what we would get with these amendments, along with delay and opaqueness.
It is surely right that if a future Government really believe that a further transfer of power or competence from the UK to the EU is in the interests of this country, they should not be afraid to make the case to the British people and let them decide. Those who might be in favour of more powers to the EU and those who might be against should have the courage of their convictions—possibly more so than in the past—and be prepared to seek a mandate from the public, not from a small group of Parliament or some external committee. That is why I ask noble Lords to withdraw these amendments.
My Lords, I am very disappointed with the Minister’s reply to this debate. I think that we have made a simple argument in support of these probing amendments and it is not fair to criticise us on their detail. That is not the point. We are trying to put forward the argument that if the issue of whether a referendum should take place is in question, an issue of proportionality also has to be addressed. We do not want to have multiple referenda. Let us have them, as your Lordships’ Constitution Committee has said, on fundamental matters of importance. The question is how those fundamental matters of importance are to be decided. With these amendments we are thinking about a mechanism by which these issues could be considered in an objective and rational way that is detached from political partisanship.
Amendment 39B in particular proposes the setting up of an independent review committee that would advise both Houses of Parliament on whether an issue was large enough to pass the test of proportionality and thus whether a referendum should take place. To me, that is a simple argument which is worthy of consideration, but I do not feel that the Government have shown that they are really prepared to give it that proper consideration.
Members on this side of the House stand for greater parliamentary accountability in terms of the EU. We are arguing for Acts of Parliament for any changes that are made as passerelles, simplified revision treaties or whatever else. These would require Acts of Parliament, not just a resolution of Parliament. That marks a change from what happened under the previous Government, and it is quite a big change. It puts in place an additional safeguard in politics because it would not be just Ministers in their department pushing through parliamentary resolutions, it would require them to get the agreement of colleagues through the Cabinet Legislation Committee in order for the matter to be taken forward. It makes this much more of a collective decision of the whole Government and would enable more thorough scrutiny of issues through the procedure of creating an Act of Parliament.
We are in favour of parliamentary accountability. The question is this: what are the circumstances in which in addition to greater parliamentary accountability, there should be referenda? The Minister says that there are what he calls “key decisions” that require referenda, and puts forward a lot of proposals for change that no one on this side is actually proposing. We have not put forward dramatic proposals for the extension of QMV or for large transfers of competences and powers to Brussels. What we have said is that, as a Government who are sensibly trying to make the European Union work, some flexibility is required to deal with difficult issues as they come up. Moreover, circumstances change, so what you think about the future now might not necessarily still be what you think in five years’ time. Judging what would require a referendum to be held and what would not is of vital importance, so we are proposing a mechanism here that can deal with questions of proportionality.
What we are proposing here would fit the coalition agreement far better than what the Government are proposing. The coalition agreement draws a very clear distinction between treaties which would require referenda and other changes which would simply require primary legislation. That is what is in the coalition agreement which the Liberal Democrats signed up for. As with the Bill on the National Health Service, it is a bit like the Liberal Democrats have been sold a pup, because they have not got what is in the agreement they signed up for. What they signed up for here was a clear distinction between future treaties and other small changes which would be dealt with differently. We are proposing a mechanism which would enable that to be done. I hope that when we get to Report stage people will think again about this Bill and have the common sense to see that the mechanisms that we are proposing are in the national and the public interest. On that basis, I beg leave to withdraw the amendment.
Amendment 39A withdrawn.
Amendments 39B to 40A not moved.
House adjourned at 10.06 pm.