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Lords Chamber

Volume 727: debated on Monday 23 May 2011

House of Lords

Monday, 23 May 2011.

Prayers—read by the Lord Bishop of Blackburn.

Death of a Member: Lord Elliott of Morpeth

Announcement

My Lords, I regret that I have to inform the House of the death on 20 May of the noble Lord, Lord Elliott of Morpeth. On behalf of the House, I extend condolences to the noble Lord's family and friends.

Olympic Games 2012: London Air Quality

Question

Asked By

To ask Her Majesty’s Government what action they are taking to respond to the report of the Olympic Delivery Authority that air quality in London will exceed European Union limits during the 2012 Olympic Games.

My Lords, the Government are committed to working towards the European Union’s air quality standards and have recently made an extra £5 million available to help the mayor tackle some of London's worst pollution hotspots. During the Olympic Games our ambition is that all spectators should travel to London venues by public transport, cycling or on foot. These and other measures will help minimise air quality risks in London during the Games.

I am grateful to the Minister for that reply. Will he say who is responsible for keeping the air at the right quality? Is it TfL, the GLA or the Government? Secondly, if there is very little wind during the Olympic Games and PM10 values exceed the limit, is he aware that the Government could be fined £180 million by the International Olympic Committee? That is what will happen if the pollution is as bad as it was in Beijing. Does he have a contingency plan?

My Lords, the answer to the noble Lord's first question is simple. Everyone is responsible: the Government, the mayor, TfL, LOCOG, the ODA and, most importantly, individuals who make their own transport decisions. As regards the noble Lord’s second question, the host city contract states that the International Olympic Committee can withhold payment from LOCOG if an event in the Olympic and Paralympic Games cannot take place for any reason or if there is non-compliance with the contract. Air quality in the UK is improving and it is very unlikely that air quality issues will result in payments being withheld.

My Lords, I support the noble Lord, Lord Berkeley, in raising this question. The Minister will be aware that London has already violated its entire annual allowance for PM10s for 2011 and we are in only the fifth month of the year. Will he give us some assurance that London will at least look at putting in place a temporary clean air zone around central London and the Olympic venues during the Olympics? If it does not, does he agree that we will end up doing what Beijing did, which was to resort to an almost impossible alternation between allowing in cars with odd-numbered plates one day and even-numbered plates the next in order to manage air quality problems?

My noble friend will be aware that the PM10 problem occurs only in a few hotspots. By and large, the PM10 problem is licked. She talked about temporary exclusion zones. That would be a matter for the mayor.

My Lords, does my noble friend agree that air quality is made a great deal worse than it would otherwise be by the traffic congestion caused by roadworks over practically every inch of London roads?

My Lords, my noble friend makes an important point. Some of the congestion caused by roadworks has produced some traffic activity and therefore produced some pollution.

Would the shorter and more accurate Answer to the Question asked by my noble friend Lord Berkeley be that no one is responsible?

My Lords, I am not aware of the weather in those periods. All noble Lords know that legislation over the years has vastly improved the environment in which we live. We need only to think of the Clean Air Act and the benefits we got from it.

My Lords, I have seen reports that London or the Government are likely to be fined £300 million for pollution in London. If that is true, I hope it is not going to add to our already massive contribution to the EU budget this year and in subsequent years.

My Lords, I obviously failed to explain properly to the noble Lord, Lord Berkeley, that there is very little chance indeed of us being fined by the International Olympic Committee. We could be fined only if an event could not take place for any reason—for instance, if there was far too much pollution to run a marathon—or there was some non-compliance with the contract. Both those conditions are extremely unlikely to arise.

My Lords, in answer to an earlier question the Minister said that we are all responsible. Is that not a case of the Government again passing the buck?

My Lords, we are certainly not passing the buck. We have helped the mayor with a £5 million grant to deal with some of the technical issues; for instance, fitting particulate traps to London buses to deal with some the PM10 hotspots that I talked about earlier.

Can the Minister bring us up to date with the infraction proceedings against the city of Brussels which is, I think, the only major European city which still discharges all its raw sewage into its local river? Does the Minister agree that were the wind to be blowing in the south, this might have quite an effect on the Olympic Games?

My Lords, I answer for the Department for Transport and for the whole of the Government but, fortunately, I have no responsibilities for the city of Brussels.

My Lords, I declare an interest as a waterman and lighterman. Will the Minister say whether we have a comprehensive plan for greater use of the river, bearing in mind that we have been very poor at using barges, as we are committed to doing, for the Olympic build programme?

My Lords, I rather think that we have missed the boat on that because the infrastructure is largely built. However, when I visited the Port of London Authority I detected some of the work that the noble Lord had undertaken.

Housing: Market Stability

Question

Asked By

To ask Her Majesty’s Government what action they will take following the Joseph Rowntree Foundation’s investigation into the creation of a sustainable housing market.

My Lords, the Government welcome the Joseph Rowntree Foundation’s investigation and report, which was published last Tuesday. We share its desire to see a fairer, more stable housing market that does not shut out first-time buyers and where house prices rise more smoothly in line with earnings. The report concludes that there are no easy answers to address the underlying causes of market instability. However, we are working across government to assess the options that are available and will publish a housing supply strategy in the autumn.

I thank the Minister for that very positive and helpful reply. I am sure that this report will be helpful to Ministers, and indeed to everyone who wants to see a stable housing market, not boom and bust. Does the Minister agree that the level of mortgage repossessions, which are now running at 100 a day, might get a lot worse if interest rates and unemployment rise? If so, does she agree that the proposals in this new report for a mortgage protection payment insurance scheme to provide a safety net for homebuyers would be good not only in preventing their homelessness but in stabilising the housing market at a difficult time?

My Lords, we welcome any proposals that will enable us to work with the industry to try to find a way around the barriers faced by the insurance scheme at the moment. We currently welcome private insurance solutions and recognise that there are enormous challenges for first-time buyers. We are already running the mortgage rescue scheme, as I am sure the noble Lord knows. Some £200 million has been put into that scheme already, and we have already helped 38,000 households with that money as well as with advice and support. So it is not as though the Government are not doing anything—we are making substantial efforts—and if the economy were to stabilise and settle down, much of this problem would go away.

My Lords, I declare an interest as chair of the Midland Heart Housing Association. Are the Government not aware that a sustainable housing sector depends on its ability to borrow and on the willingness of the banks to lend? Can the Minister tell us what action Project Merlin can now take to stimulate the housing sector by assisting it in its borrowing needs?

My Lords, this goes back a little to my answer to the previous question. The economy, which is the first priority of this Government, needs to be effectively stabilised. After that, we hope that the banks will feel able to bring themselves more into the market to help particularly first-time buyers with mortgages. However, the first line of defence will have to be making sure that the economy is right.

My Lords, as the Joseph Rowntree report says, the main reason for the problem is the shortage of land. Would my noble friend comment on whether the Government will look at how to encourage the release of unused land, such as in land auctions or the taxation of unused land, to encourage the owners and developers of land to bring it into use even when its value might be lower than they expect?

My Lords, I am not aware at the moment of the Government having any intention of causing land auctions or doing what else the noble Lord describes. Under the Localism Bill, of course, we are preparing for neighbourhood plans, which will identify land that is available, and we will also look to the community right to challenge to identify and challenge land that is available for development. The Government are moving along the lines of trying to ensure that land is freed up and are also looking at public land to ensure that, if it is available, it can be used for housing.

When the noble Baroness looks at the strategy that she says will be published in the autumn, will she particularly look at the role that housing co-operatives, self-build and empty housing can play in this strategy? Does she agree that—especially as regards empty properties in northern towns and cities where far too many such properties often blight whole communities as they become tinder-boxes and breeding grounds for vermin—these properties need to be put back into use for people on housing waiting lists?

My Lords, I wholly agree with what the noble Lord has said. It is a sad fact that there are many empty properties which can or should be brought back into use. We have already allocated money to this and within the new homes money we will identify such empty properties. For that, £100 million is already available. It is not occurring just in the north but across the country. We are anxious too to make sure that homes are brought up a decent standard. In areas—particularly in the north, I guess—where traditionally a lot of houses have been left empty, it is perfectly right that those are brought back into use rather than just demolished or left.

Are the Government satisfied at the readiness of the banks to lend money for housing development?

My Lords, what the banks do is up to the banks. We will be very pleased when there is a release of money for mortgages to help.

Do the Government not agree that it is time we weaned people off the desire to buy houses and to have a good rental sector, so that people can rent safely, with good tenure, an affordable house?

My Lords, I would agree with that and I do not think that this Government are doing anything to stop renting in any way. We have encouraged the private rented sector, which is a very important part of housing in this country. As noble Lords know, we are introducing the affordable rent for housing, which will also assist people. We have already put £6.5 billion into the development of new affordable homes over the CSR review period. The Government are doing a lot to ensure that more housing will be made available and coming on stream.

With the growth in out-of-town retail developments and the empty shopping centres, are the Government giving any thought or guidance to the change of use of some retail premises in the rundown areas of our towns to change them into housing for general use?

My Lords, I think that this is being considered under planning legislation for the future. It is not far enough advanced for me to give the noble Lord any further information than that but I know that it is recognised as being a possible way out.

Banking: Savings Accounts

Question

Asked By

To ask Her Majesty’s Government what assessment they have made of the levels of interest set by banks on cash individual savings accounts as compared with other savings accounts.

My Lords, the interest rates offered on savings accounts are a commercial decision for providers and, as such, vary. The Money Advice Service, which was set up by the Government, provides information and advice to encourage consumers to manage their finances proactively and to shop around for the best deal. The benefits of tax-free savings offered by cash ISAs allow the majority of savers to receive a tax advantage on all their cash savings.

My Lords, I thank my noble friend for his reply. Does he agree that the tax relief available on cash ISAs is offered by the Treasury as an advantage for savers, not a commercial opportunity for the banks? If he does agree, will he join me today in demanding two things from the banks? The first is that they should address immediately the discrepancy between the interest rates offered on some fixed-rate savings bonds and fixed-rate cash ISAs. The second is that they should give a guarantee to their customers that never again will they offer lower interest rates on fixed-rate cash ISAs than those they offer on fixed-rate savings bonds?

My Lords, I am grateful to my noble friend for raising this important area of savings. We should remind ourselves that a total of 23 million people hold ISA accounts, and of those 15.5 million hold cash ISAs, so this very important part of the savings market is held by some 40 per cent of households. My noble friend’s Question prompted me to speak to the British Bankers’ Association today and I can confirm that the association is working on its own recommendations following on from those made last year by the Office of Fair Trading after it had looked at this area. For example, from early 2012, additional information about the interest rates being offered will be shown on all statements. Further, in line with the recommendation made by the OFT, the association’s members are working to significantly shorten or halve the time it takes to switch accounts. But the structure of interest rates being offered, which is increasingly transparent on the websites that are now available, is a matter of commercial competition. I would recommend all savers to take advantage of the tools that are out there in order to shop around.

My Lords, in view of the success of the tax-free index-linked bond issue recently offered by National Savings & Investments, what plans do the Government have to keep this very popular product on the market in the future?

I am grateful to my noble friend for drawing attention to the fact that the 48th series of fixed-interest and index-linked savings certificates was launched on 12 May. It is our intention to keep this series on sale for a sustained period. Of course, there is only a certain amount of availability within the targets we set for NS&I, but I am pleased that we are able to fill a gap in the savings market by putting particularly index-linked savings certificates on sale again. They are proving to be popular, but I am advised that there is still a supply of them available. Noble Lords who would like to invest in them do not need to rush out of the Chamber at this moment.

My Lords, will the Minister take this opportunity to speak to the Independent Commission on Banking, the Vickers commission, and ask it to emphasise the concept of treating customers fairly so that savers feel, as the noble Baroness said in her supplementary question, that they are both getting a good deal and indeed can be seen to be getting that?

My Lords, this will be the focus of some of our attention when the legislation for the new regulatory structure comes forward. Treating customers fairly in the broadest sense is a critical part of what the FSA has been working on over the past few years. As we look at the remit, particularly for the new Prudential Regulation Authority within the regulatory structure, it is important to make sure that a proper focus is placed on that strand of work going forward. No doubt your Lordships will soon have an opportunity to consider these matters.

My Lords, is there a good reason why the NS&I tranche, to which my noble friend referred, cannot be bought through post offices?

My Lords, the NS&I is a commercial operation and it has to make sure that it delivers its products in the way that customers want to receive them. It distributes a significant number of products through the post office network, including premium bonds. Some products are just marketed while others are available over the counter. I understand that these days the most popular channel for NS&I’s products is over the internet, but there is a variety of ways of obtaining them. NS&I’s products are designed product by product to suit customer needs.

As we have a majority share in two major banks in the country, could the Minister not press them to implement the very interesting suggestions put forward by his noble colleague?

My Lords, shareholdings in the banks in which the Government have a significant shareholding are managed on an arm’s-length basis through UKFI. We want a functioning and transparent market in which consumers are able to shop around. The OFT looked at this last year and indentified some areas of the market that needed working on in terms of switching times and some aspects of transparency. The banks are working on that. Very usefully prompted by my noble friend’s Question, I spoke to them today to confirm that their noses are being kept to the grindstone on this. That is important and is what we should require of them.

Mental Health: Children in Local Authority Care

Question

Asked By

To ask Her Majesty’s Government how they are meeting the mental health needs of children in the care of local authorities.

My Lords, supporting and promoting the mental health needs and well-being of looked-after children is of the utmost importance. It is not the job of any one person or organisation. Strong and effective multi-agency working across local authority and health partners is essential. No Health without Mental Health provides a co-ordinated, cross-government focus to improving mental health outcomes for people of all ages, including those in vulnerable groups such as children in the care of local authorities.

My Lords, I thank the noble Earl for his reply. Will he urgently consider working with local authorities to ensure that, in the early assessment of children when they are taken into care, a clinical psychologist with appropriate training or a child psychiatrist is involved so that mental health needs are recognised and can be acted on? Furthermore, will he say what the state of specialist looked-after children’s mental health services is? These are multidisciplinary teams developed in some local authorities and are particularly vulnerable to closure at this time of funding shortage.

My Lords, with his experience in this area, the noble Earl hits upon some extremely important points. As he will be aware, support for the mental health needs of looked-after children is at its most effective when child and adolescent mental health services, CAMHS, provide dedicated resources to work with looked-after children and their carers with trained and experienced staff. It is up to local authorities to decide the level at which staff should be appropriately deployed. Targeted CAMHS for looked-after children should work closely alongside the child’s social worker, carers and other professionals such as nurses and paediatricians. It is reassuring that data collected over past years for the CAMHS mapping survey by Durham University show an increase from 2003 to 2009 in the number of social services teams and teams with a focus on looked-after children, although those data carry a slight health warning in that participation in the survey, I understand, was voluntary.

My Lords, how much research are the Government funding into the mental health and social outcomes for looked-after children and for adults who were looked after as children?

My Lords, the noble Baroness may know that NICE and the Social Care Institute for Excellence prepared guidance recently on promoting the quality of life of looked-after children and young people. In doing so, they considered evidence including research reviews, a practice survey, a consultation with young people who have been in care, field work with practitioners and the testimony of expert witnesses. The evidence demonstrated that the health and well-being of looked-after children and young people are affected by nearly all aspects of their lives and care. The noble Baroness may like to know that a detailed list of that evidence is contained in appendix C to the guidance.

My Lords, some local authorities are experiencing a very large number of looked-after children moving from other local authorities. I believe that in Medway there has been an increase of some 21 per cent. What action are Her Majesty's Government taking to ensure that local authorities that accept children from other local authorities are able to provide the specialist care that this vulnerable group needs in the field of mental health?

The right reverend Prelate is quite right that the numbers of children going into care have been rising and some local authorities have been under particular pressure. But local authorities generally should be in no doubt that they have legal obligations in this area that they cannot obviate. The Department for Education has produced revised regulations and statutory guidance on care planning for looked-after children and care leavers, which came into force on 1 April. I have already mentioned the NICE and Social Care Institute for Excellence guidance, which should be followed alongside those regulations.

All local authorities in England must provide information on the emotional and behavioural health of children in their care and there are established screening tools to enable them to do that effectively. A recent study published by the Local Government Association found that more than 60 per cent of councils are seeking to protect children’s social care from any cuts.

Does my noble friend share my concerns that significant numbers of black and minority-ethnic children in the care system suffer from mental health problems, but do not receive the appropriate intervention and support until it is far too late and they have already become involved in the criminal justice system? Will my noble friend tell me what is being done to ensure early intervention, treatment and support for these young people and children?

My noble friend is absolutely right. She will know that minority-ethnic groups appear to be overrepresented in the looked-after population. Around 3 per cent of the child population of Great Britain is from black, black British or mixed groups, but 8 per cent of looked-after children are black and 7 per cent are from mixed groups. She is right that there is a problem. She is also right that early intervention is key. There is a strong emphasis on public mental health in the mental health strategy. The good foundations are down to early intervention, as I mentioned, and we are clear that this is a priority for the Government.

The Minister will be aware from recent research that an integrated budget actually makes sure that looked-after children and other vulnerable groups are more effectively responded to. Is he confident that the current confusion in the health service about the future and what the priorities should be is not preventing good work being developed in this area, because practitioners do not know what they should be doing?

My Lords, I see the Government's proposals for local health and well-being boards as absolutely key to the effective integration of services and working across boundaries. The noble Baroness will know that the NICE and SCIE guidance that I mentioned is all about how better agencies and services should work together to produce the best results. We have a big opportunity in the Government's reform proposals to do the very thing that she is seeking.

Arrangement of Business

Announcement

My Lords, my noble and learned friend Lord Wallace of Tankerness will repeat as a Statement a UQ allowed in another place earlier granting an enforcement of privacy injunctions in the light of the Master of the Rolls’s report. There is agreement that the Statement will be taken at a time close to 6 pm this afternoon, with an adjournment of an hour to enable that to take place during the Committee stage of the European Union Bill.

Draft Defamation Bill

Motion to Agree

Moved By

That, notwithstanding the Resolution of this House of 23 March, it be an instruction to the Joint Committee on the Draft Defamation Bill that it should report on the draft Bill by 31 October 2011.

My Lords, the Leader of the House asks for an increase in the time available for examination of the Defamation Bill, which is addressing responsible investigative journalism and the internet. Will he also give attention to the conspiracy of the press and Twitterers in relation to acts of libel and other criminal acts which are part of this press campaign on injunctions, and in contempt of Parliament and our judges? Is it not time that the Government, the Prime Minister and the Attorney-General stood up for the judges and the administration of justice in this country as well as for the Human Rights Act, as embodied in Section 8 and as Parliament so decided?

My Lords, it is of course entirely up to the committee to decide what it discusses. However, given the events of the past few weeks and days, I am sure that it will wish to examine in some detail some of the issues that the noble Lord raises. This extension comes at the request of the committee, and I believe that it will give it the opportunity to complete its work before the end of October.

Motion agreed, and a message was sent to the Commons.

Draft Detention of Terrorist Suspects (Temporary Extension) Bills

Motion to Agree

Moved By

That, notwithstanding the Resolution of this House of 8 March, it be an instruction to the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills that it should report on the draft Bills by 23 June 2011.

Motion agreed, and a message was sent to the Commons.

Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011

Motion to Approve

Moved By

That the draft Regulations laid before the House on 22 March be approved.

Relevant documents: 19th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 May.

Motion agreed.

Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011

Motion to Approve

Moved By

That the draft Regulations laid before the House on 26 April be approved.

Relevant documents: 21st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 May.

Motion agreed.

European Union Bill

Committee (7th Day)

Clause 7 : Decisions requiring approval by Act

Amendment 48 had been withdrawn from the Marshalled List.

Amendment 48A not moved.

Debate on whether Clause 7 should stand part of the Bill.

My Lords, I rise to speak to the question of whether Clause 7 should stand part principally to draw attention to a common feature of this clause and succeeding clauses, which was also a feature of Clauses 2 and 3 and to which the noble Lord, Lord Hannay, has drawn attention on a number of occasions. The question concerns the acceptability of the language in Clause 7(3):

“A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies”.

This is the chicken-and-egg problem, as explained by the noble Lord, Lord Hannay. It would be normal before a decision is reached in Brussels that there should be preliminary discussion, the preparation of a text and textual negotiation, and that various rounds should be gone through before there is a decision. I am in no way disagreeing with what Clause 7(3) says about the Minister being banned from voting in favour of the decision. My worry—like the worry of the noble Lord, Lord Hannay, about previous clauses—is simply about the language “or otherwise support”.

One can envisage a situation in which the United Kingdom representative might be keen to say, “My Government would live with this”, or “My Government would like this”, but it must be understood that under UK law, under this Bill, it would require an Act of Parliament and a referendum—or, in this case, will require an Act of Parliament. That could be construed as supporting the measure, though explaining that there were steps that had to be gone through before the UK could vote for it. I am nervous about our being unable to say anything in respect of decisions that we favour. That seems to me the effect of this language. The risk is that the negotiator would be accused of having broken the law by supporting the idea or a particular form of the draft decision.

Before we come back to this issue on Report, I hope that the Government will think seriously about the point that the noble Lord, Lord Hannay, has made more than once, and to which has yet to receive an adequate answer from the government Front Bench. We were assured at one stage that it would be thought about; I hope that it really will. One can envisage various forms of language—for example, Clause 7 is full of the word “permit”. It occurs all over Clause 7(4). I wonder whether it would be a disaster to the Government, while it would certainly solve my problem, if Clause 7(3) said:

“A Minister of the Crown may not vote in favour, or permit a decision”.

That would prevent his taking part in or allowing the final decision; it would not prevent his taking part in the negotiation of the terms of that decision, or a prior discussion of principle about the possible decision.

I put this forward as a minor technical amendment which I think the Government should think very seriously about. There are a number of other ways of taking the trick, but the argument presented by the noble Lord, Lord Hannay, deserves a proper response.

I have two points that I wish to record as suggestions appertaining to Clause 7. The first is about decisions under Article 333(1). I am talking about Clause 7(4)(e), and I am also going to talk about Clause 7(4)(f) and Article 333(2). These are about qualified majority voting and, in particular, enhanced co-operation activities in which the UK is taking part. We are not allowed, other than if there has been a specific Act of Parliament, to agree that for a particular enhanced co-operation or deployment of election monitors qualified majority decisions can be taken on the detail of the deployment.

Here I take my text from what was said in earlier days of this Committee about flexibility. I do not think that it is wise to tie the Government’s hands. These provisions are about specific deployments. It is perhaps an unlikely situation that someone who is in disagreement with the majority would agree that decisions should be taken by a qualified majority, but it has happened quite regularly in the European Union’s history. It has been a standard feature of German policy that rather than take on the Bundesrat on a particular issue they prefer to be voted down by a qualified majority. They do not want to stop something happening, but nor do they want to vote in favour of it, so they are happy under qualified majority to vote against and be voted down. I think that I raised this point last Monday in relation to a previous clause. The Government need to think about it.

This is not about changing the normal rules for deciding issues that arise in relation to enhanced co-operation activity. This is about specific enhanced co-operations in which, as Clause 7(4)(e) and (f) say, the UK could be taking part. The decision on whether to adopt the qualified majority rules for implementing it would be taken by unanimity, so the Government could prevent a decision to move to qualified majority if they did not want it. My point is about whether the Government have to stop the show and say, “No, there can’t be qualified majority until we have an Act of Parliament”. In relation to particular enhanced co-operation deployments and activities, that could be very constraining and undesirable for the UK’s interest. I ask the Government please to reflect a little further on that.

I draw the Government’s attention to Clause 7(3)(c) regarding a paradoxical provision in the treaty that I personally find hard to understand. I am criticising not the Bill but the treaty. This bit of our Bill says that we would need an Act of Parliament before there was,

“a decision under the provision of Article 64(3) … that permits the adoption of measures which constitute a step backwards in European Union law as regards the liberalisation of the movement of capital to or from third countries”.

I find it hard to tell what that is about. The language of Article 64(3) is not very revealing. I had hoped to be able to attack the Government on using such loose language as,

“which constitute a step backwards”,

but unfortunately I find that they are quoting precisely from the treaty. Article 64(2) says that for capital movement—that is,

“the movement of capital to or from third countries involving direct investment … establishment, the provision of financial services or the admission of securities to capital markets”—

there shall be qualified majority. That is not the bit of the article that we are talking about at Clause 7(3)(c) of the Bill. The clause talks about Section 3 of the article, which says that notwithstanding the bit that lays down that there shall be qualified majority,

“the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries”.

So we have some sort of emergency measure that enables them, if they are unanimous, acting only in consultation with the European Parliament rather than by the slower procedure laid down in the previous paragraph, to take a decision—perhaps sanctions, perhaps when there is some systemic threat to the system, some sort of crisis in the markets—rather than with the European Parliament being co-equal and qualified majority by the standard procedure.

If I am right—I may have misunderstood the article; I find it hard to understand—it is a bit odd that this Parliament should be imposing a requirement for a very heavy procedure, an Act of Parliament, for going back to unanimity. In a crisis where everyone agrees that something ought to be done and you have to move fast, you can only consult the Parliament; you do not have time for a full dress Session with the Parliament.

My question to the Government is: are they quite sure that Clause 7(4)(c) should find a place in the Bill? Again, I admit that I may not fully have understood its import but it seems paradoxical. The Minister has spoken to us at length about transfer of powers. I understand his reluctance to see moves to qualified majority voting. However, we are talking here about a move to unanimity by exception—clearly in an emergency. The Government should reflect on that and whether this paragraph should be included in the Bill. That said, having registered these three points, I do not intend at the moment to oppose Clause 7 standing part of the Bill.

My Lords, I follow the noble Lord, Lord Kerr, by asking similar questions. The phrase “or otherwise support” appears in clause after clause of this section of the Bill. If my fellow Members of this Committee look at Clauses 7, 8, 9 and 10, they will see that the phrase “or otherwise support” appears again and again. It is important that we are all completely clear about what it means. The noble Lord, Lord Kerr, is a distinguished civil servant. He has raised some of the issues that flow from this in the case of negotiation in Brussels, at the Council or in another European Union institution. I speak as a former Minister of the Crown. I, too, have concerns that deserve a little consideration by the Committee and my noble friends who will respond to this debate. I will be brief.

In Clause 7(3) we have the phrase,

“or otherwise support ... unless the draft decision is approved by Act of Parliament”.

That is to say, before a draft decision is approved by Act of Parliament, the Minister of the Crown is not free to vote in favour—that is absolutely fair and perfectly clear—or otherwise to support it. That really puzzles me. He or she is unable to support in discussions in the Council a view that may be in the interests of this country, and that he or she genuinely believes to be in the interests of this country, because he or she is expressing that support before a draft decision has been approved by Parliament. A Minister of the Crown—this is even odder—is unable to express support in the whole run-up to that draft decision being taken. It is not even clear whether he or she can speak in Parliament’s discussions on the draft decision. Certainly, the wording does not suggest that. You could have the very odd situation of a Minister whose Government think that what he is trying to do is right, and who himself believes that what he is trying to do is in the national interest, not being able to speak out and say so.

I ask noble Lords to consider for a moment or two what will be the effect of 24/7 press and media coverage. Heaven knows, we in this House have heard enough about it in the past few days. The Minister of the Crown cannot express to the media support for what will now be put to Parliament in a draft decision on behalf of his own Government. The media will undoubtedly line up to ask him where he stands, where he is going and what grounds he has for supporting the decision. He can, I presume, say only, “I am not free to say anything”. That is in some ways a ludicrous position. Surely, at the very least we should remove the words “or otherwise support” and let the whole case rest on voting in favour, where the position is clear, strong and constitutional.

My second point about the role of the media is that the very draft decision that Parliament is being asked to make—the decision of approval—will turn to a great extent on how the issue is discussed in advance of Parliament making that decision. However, under the wording here, unless I misunderstand it, the person who knows most about it—the Minister of the Crown—simply could not take part in that argument. I ask Ministers either to explain why the wording does not mean what it appears to mean, or to explain how they will bar a Minister of the Crown from speaking about an issue that could be of considerable national importance. Incidentally, this is not an issue of being for or against the EU, as such; it is about what we say to Ministers who are negotiating on our behalf in Brussels. I strongly suggest that the wording as it stands is not clear. It is profoundly ambiguous and could be rather absurd and very hampering if there is an attempt to interpret “or otherwise support” as broadly as it is left open by the wording of the Bill.

My Lords, the noble Lord, Lord Kerr, and the noble Baroness, Lady Williams, have clearly explained the problems associated with the term “or otherwise support”. I wish to give an instance of where a problem may arise. The Council in Brussels may be discussing a measure which requires unanimity—our agreement—in terms of some outcomes that would be unacceptable to us, and others that would be acceptable to us once Parliament had endorsed them. How is the Minister to express that preference? There is a real risk that “or otherwise support” could be interpreted in a way which prevents the Minister expressing that preference. That, surely, would be completely counterproductive because in such circumstances we want to be able to say—do we not?—that one or more courses of action would be unacceptable to us and we would not agree to them there and then, but that another course of action could be acceptable to us once we had the authority of Parliament to make a legal decision possible. Taking all these points together, I hope that the Ministers will break their duck and agree to a change. After all, we have been sitting here for I do not know how many hours and so far they have not managed it. I would like to encourage them to try a little harder.

My Lords, I would like to speak briefly to a point made by the noble Lord, Lord Kerr of Kinlochard, specifically on Clause 7(3). He mentioned the coalition agreement. I think that on day five in Committee we discussed the coalition agreement and what it said about passerelles. Does he agree that the coalition agreement is clear on this particular use of passerelles, as it says:

“We will amend the 1972 European Communities Act so that … the use of any passerelle would require primary legislation”?

As regards his other more general points, the report of the Constitution Committee, which discusses Clause 7, concludes at paragraph 41:

“We agree with the re-balancing of domestic constitutional arrangements in favour of Parliament”.

Both those statements point in a different direction from that proposed by the noble Lord, Lord Kerr.

I hope that my noble friend will forgive me for breaking into her remarks but I find it hard to understand why that encompasses the words “or otherwise support”, given the arguments that have been made. I do not believe that the noble Lords on the Cross Benches, or I, are for one moment arguing that there should not be an Act of Parliament. The issue is about the run-up to the draft decision that Parliament will make, and whether that run-up should include a proper debate involving Ministers of the Crown.

I was getting to that. Whoever said that EU legislation was dull and boring should see the enthusiasm of Members of this House to make sure that we examine every sentence. I was going to refer to the comments of the noble Baroness, Lady Williams, on “or otherwise support”, and I shall do so now. Clause 7(3) states:

“A Minister of the Crown may not vote in favour of or otherwise support”.

However, that has to be read in the context of the following words:

“a decision to which this subsection applies unless the draft decision is approved by Act of Parliament”.

My interpretation of the words,

“or otherwise support a decision”,

is a slightly more legalistic one. Will the Minister clarify that point? I see “or otherwise support” as meaning to give assent to “a decision”—meaning a law. In other words, that is a decision as seen in the category of regulations, directives and decisions—in this case, a decision taking immediate effect. That is why supporting —in other words, giving assent to—the making of a law would not be possible, but the Minister would have to come back with a draft decision, and subsequently go back and support it. This might be a rather legalistic view of the issue, but I should be grateful if the Minister can confirm whether that is right. If it is, the words are entirely sensible.

My Lords, I have looked at this section and tried to construe and understand it, which was difficult. If I may say so, we are making rather heavy weather of the phrase “or otherwise support”. There is only one issue that the House ought to consider—is the legislation clear as presently drafted? If it is, then of course a lot of this argument is negated. If it is not clear as drafted, someone—almost certainly the Government—ought to put it right. I am doing my best with this phrase,

“or otherwise support a decision”,

but I am finding it difficult to understand what it means. I do not know what “otherwise support” means. Does “otherwise” refer back to the original approval, or to something less than the approval that you are minded to support? This is an extremely difficult concept to grasp. In short, is it clear? The answer to that is no. Should it be amended? The answer to that is yes. Who should do the amending? It should, on the whole, be the parliamentary draftsman. If ever there was a case in which the Government should say, “Right; we agree there is something here that we can look at again”, this is one.

I have the same difficulties that have been expressed by a number of noble Lords in this debate. Broadly speaking, as my noble friend Lord Liddle and I have said on several occasions from this Dispatch Box, our position is that the kind of arrangement in Clause 7(1)—the requirement for Parliament to undertake the necessary work in all these circumstances—is well understood. It would increase the amount of parliamentary work on European legislation and would inevitably increase the amount of scrutiny we placed on such legislation. That is bound to be a good thing. In our submission, it is also bound to reflect well on Parliament and its responsibility to do the job adequately, without turning to a multiple requirement for referenda.

This clause, at least in some of its wording, is not just a lock but a double lock. There are two kinds of locks in it. The first is that, apart from the matters covered in the clause, there will be a referendum lock, and there is a double lock on the political process in which a Minister might take any reasonable part in any reasonable discussion of any reasonable proposition in order to make sure that their parliamentary colleagues—let alone the public—know what the issues are and how they stand on them.

There is no difficulty with the notion of the first part, where the requirement is,

“may not vote in favour”.

That is the point on which, I suspect, there is a great deal of agreement around the House. However, I do not think that the use of “or otherwise support” is a simply a drafting or technical matter. I rely in part on the fact that those words appear in many clauses. This is not the only example. Clause after clause imposes the requirement. In general, when we have talked about these kinds of clause, the government Front Bench has indicated that in some sense—not in any sense that Ministers have described to us, and certainly not in any detail—it will be all right on the night and that it will not somehow have got in the way of anyone engaging in serious political work.

We first moved an amendment to delete that wording some time ago; I continue to believe that it is unhelpful and inappropriate. I put to the Government the following thought, which flows from ministerial experience—a good many Members of this House have real ministerial experience in this and other foreign affairs issues. Ministerial experience tells me that it is wholly impractical to try to do the political job without being able to speak on any matter of substance while you are doing it. Your processes of thought—the decisions to which you may come not instantly but as a result of discussion—must remain wholly obscure. Can you even say that you wish to deploy the knowledge you have of the issue? Can you say that you think that it is in the national interest that the issue is thought about and resolved? Can you find words in the process in which you are engaged—some of us have been engaged in these processes in much detail over the years—that are so neutral that nobody could misunderstand any word or syllable that you said as being other than completely neutral and not demonstrating any inference of support? Can you realistically anticipate that everyone will agree that what is said is so neutral that they will not claim that it is a breach of the law when they do not agree with you or the outcome? We have heard noble Lords saying in terms that they are in fundamental disagreement with almost anything. I do not mean noble Lords on the government Benches—they are just happily confused—but noble Lords in UKIP, for example, have found it almost inconceivable that anything that could be said would not represent some slippage into a greater presence of Europe in the United Kingdom.

I say to the noble Baroness, Lady Falkner, that it is not a matter of how she reads Clause 7(3). Of course it is all about decisions. Draft decisions are bound to give rise to the expression of a view, or nobody would have drafted them. That is precisely why you would draft a decision. I cannot believe that we do not agree on that basic proposition.

Does the noble Lord then agree that “or otherwise support” could as easily imply assent—in other words, agreeing to support it?

No, my Lords, I do not agree with that. In the process of any kind of discussion, people will say something which either indicates support, or which they hope is sufficiently neutral not to indicate support but others will say that they believe that it does. The moment that anybody drafts anything, it will be seen or thought to be a clear indication of support by the very nature of going through the process of drafting it and putting it into the public domain. In real politics, that is precisely what will happen.

That is all fundamentally unhelpful, and I really hope that in their own interest—because at the moment they provide the Ministers who are taking part in discussions in Europe and elsewhere—the Government will not put themselves in so calamitous a position as to be unable to operate effectively.

Is there not a further irony that shows how throughout the Bill, from Clauses 2, 3 and 4 up to Clause 7, which basically deals with the system of passerelles, there has been a problem for the Government of trying to find the correct draftsmanship and making it incredibly complicated as a result? Is it not ironic that the then Conservative Government in the mid-1980s were mad keen on the passerelles to help the Single European Act—that was when the system first started? Subsequently, there were very few, but in the Lisbon treaty, all the member states regarded them as indispensable to allow the Union to move forward on matters which had already been decided in substance—that is Clause 7 in essence—and therefore did not require an intergovernmental conference or a unanimous decision. Why is there so much agony for the government draftsman about this unnecessary clause?

My Lords, I can only say that I strongly agree with the point that the noble Lord, Lord Dykes, has made. It does not make any sense at all either historically or in terms of what is required now.

The point made by the noble Lord, Lord Kerr, about specific deployments and whether the wording is helpful or unhelpful also leads me to an area of agreement. It appears to me that, in choosing this drafting in the Bill, the Government have once again ignored a fundamental principle of political process. Any of us, whether we are in this House or have been involved in other organisations where some politics, with a big P or a small p, are going on among those who are taking part will recognise the circumstances perfectly well. I have found, as I suspect many noble Lords have done, that people occasionally welcome the chance to speak out and say that they do not like something. They like to be given the visible opportunity to fight their corner and, in the end, they find it far easier and a much more comfortable position to be seen to have been defeated in whatever it was they were arguing and to live with the result than to appear to have supported the issue in the first place. That, I think, is a commonplace in political life. I do not deny for a moment that I have enjoyed the fact that I have been able to present an argument and have lost it and that something else potentially more rational than anything I suggested has then happened. That occurs in the normal course of political life.

Unanimity, which could allow a slightly different process to occur in relation to enhanced co-operation, gives room for real politics in really difficult circumstances. Therefore, I say to the government Benches that, when they reply and explain to the noble Lord, Lord Kerr, what Clause 7(4)(c) means—I, too, am quite keen to know what it means—perhaps they will tell us how they expect real politics to work. I refer not just to how they have locked out the possibility of it working but how they expect it to work and how they expect to give Ministers who are in senior, responsible and authoritative positions the ability to do the job that I think the people of the country expect of them individually and of Parliament.

My Lords, before the Minister replies, perhaps I may take up the point which the noble Lord, Lord Triesman, has just made and which the noble Lord, Lord Kerr, made earlier regarding what he described as commonplace political processes in which someone would much rather be defeated on an issue than argue their case differently. In theory, that sounds perfectly reasonable. However, is that precisely because Ministers’ rhetoric and Governments’ rhetoric in the past has never quite matched the decisions that have emerged?

It is commonplace in politics for someone to put forward an argument, and the noble Lord, Lord Kerr, quoted the German case. To avoid a certain procedure within the German constitution, people would say, “A nod and a wink. I’ll do a bit of talking here. I’ll put up a good fight but at the end of the day I know perfectly well that I’m going to get beaten and therefore everything will be all right on the night”. In some senses, that can be seen as normal but others may see it as chicanery. People might see that as undermining the process in Brussels but some, and I am one of them, may argue that there was a prolonged period in history when cases were put in exactly that way with exactly that outcome, which led the people drafting this legislation to take measures—they may not be the most elegant but perhaps the Minister can confirm that they exist—to protect against that precise situation. Let us face it: if a parliamentary decision has to be taken on a particular proposal, a political argument develops in the media to try to influence it, and a Minister sitting at the table can play a major part in creating and framing the debate when it goes into the media and try to build support for it. There is nothing wrong with that. The idea that people are going there secretly with one particular agenda but in fact pretending to have another is precisely why the European Union is in so much trouble with the population of this country. I hope that the Minister can indicate whether that is part of the rationale behind this or whether our fears are unsupported.

My Lords, I am grateful to the noble Lord, Lord Triesman, for indicating his general support for at least subsection (1) of Clause 7. It reflects the general view that we have heard in the debate so far that primary legislation is the right instrument in a number of fields, which we have discussed at considerable length.

This clause also brings the UK more into line with the commendable practice of a number of other partners, in particular, Germany, of ensuring that national parliaments have a greater say in the developments of the European Union. It is also consistent with the principles of Laaken, to which I have referred frequently at this Dispatch Box in the past, and it is consistent with the trend in the Lisbon treaty to give more control to national parliaments across Europe.

I want to come to the specific issues that have been raised with considerable knowledge and expertise and try to offer what I hope will be a constructive response. First, I refer to the theme on which a good deal has been made in the debate on the words, “or otherwise support”, raised by the noble Lord, Lord Kerr, my noble friend Lady Williams, the noble Lord, Lord Hannay, and others. The noble Lord, Lord Davies of Stamford, would immediately call me to order if I were to say that this is inherited phraseology. When I sat where the noble Lord, Lord Triesman, now sits, through the long nights that we were dealing with the Bill on the Lisbon treaty, I am trying to remember whether we had amendments on these words. I cannot remember and do not have the electronic memory to retrieve it, but the words were in the Bill which became an Act and which was drawn up by the previous Government, ratifying the then Lisbon treaty. Those with long memories will remember that people like me were not terribly enthusiastic about the treaty or how it should be treated.

However, that is the past and out of the past has come this phrase, “or otherwise support”, which also raises some difficult questions, to which the noble Lord, Lord Kerr, rightly referred. Of course, we want to see in this Parliament a pattern of legislation in this enormously complex area of EU measures which minimises the obscurity and maximises the clarity. I should like to take away the points that have been put very clearly and reflect on the noble Lord’s arguments. I do not know whether that constitutes, in the words of the noble Lord, Lord Hannay, “breaking ducks”, merely passing balls gently to the boundary, or whatever, but the matter clearly needs some reflection because there is clearly obscurity. I suspect that that has been pointed out again and again in debates on European legislation in the past few years; it is nothing new but it does not mean to say that we cannot get it better now, so I will reflect on the points that have been made.

Will the noble Lord confirm that he will take away and look at all the references in the legislation to the words “or otherwise support”? Here we are discussing only one of them. I am sure that his intention is to look at all of them: if he will confirm that, I will happily agree that he has scored a boundary.

Reflections on the words as they appear here will be bound to have cross-reading repercussions. I will put it like that: that is what I am saying that I will seek to do.

I turn now to Article 333(1) of the TFEU, on enhanced co-operation. The pat answer that the Bill gives if you stare it in the face is that if a sensitive veto listed in Schedule 1 is removed, there will be primary legislation for the removal of other vetoes. That is something that the noble Lord, Lord Kerr, questioned. He cited the German example to which the noble Lord, Lord Empey, also referred. That is stretching it a bit. I cannot see that the pattern in Germany—for which there may well be good reasons, such as anxiety not to offend the Länder—arises here. I trust that it does not sound too austere to say that it would not be our way to go through that kind of action in the hope that people would understand that we really wanted to do the reverse. Nevertheless, it is a complex point and I have more to say about it.

This is to do with whether we maintain or surrender a veto in these areas. We are not talking about action in those areas: I am sure that that is perfectly obvious to noble Lords. Enhanced co-operation decisions will not be agreed overnight: they will be agreed as a matter of last resort in areas of sensitivity for some member states. A move to set up enhanced co-operation has happened only once, and is being proposed now in the context of the European patent.

I had hoped that the Minister would score another boundary: he was starting splendidly with his exegesis on Germany, with which I entirely agreed. Does it not say in Clause 7(4)(e) and (f) that we are talking about a particular enhanced co-operation? We are not talking about the general rules for enhanced co-operation. I accept the first point that the Minister made about precedent. It seems to me—and, I think, to him—to be an insufficient answer, but it was a sort of answer. The point that he is making now surely does not apply, because paragraphs (e) and (f) state that the decision will relate to a specific reinforced co-operation in which we will be a participant.

That is precisely the point that I am making. I mentioned the European patent, which is a good example. A decision to move to qualified majority voting would not be something that we would agree overnight. It would be much more likely to be subject to negotiation over a lengthy period, not least because it would result in one or more member states being outvoted. I simply do not accept that the provision would hold up the taking of a specific decision. I am afraid that my mind may not be meeting that of the noble Lord, Lord Kerr. I cannot see what his concern is. This is to do with removing the veto, not taking that decision. That is the best explanation that I can give: I think that it meets his concern, which he put forward in a very valuable and experienced way.

If we are talking about a specific enhanced co-operation, and the Minister accepts that we are, we have something going on out in the field—this is Article 333 on common foreign security policy. A particular kind of external activity is taking place and we do not know what it is. Those who are taking part in it have to make rapid decisions. They have to decide what we do tomorrow about situation x. The treaty says that if they unanimously so decide, they may take implementing decisions by qualified majority in relation to that specific deployment, or whatever it is. They are not changing the treaty or the general rules but are dealing with the problem that has arisen now. I do not understand the different scenario that is being presented when the Minister says that this will be prepared over time and that there will be a lot of consideration. This is about implementation. It is about people in the field. That is why I think it is rather inappropriate. Is the Minister quite sure that it is appropriate to make this a matter on which the UK would need to pass primary legislation?

I am not sure I agree with the picture of decisions having to be taken instantly. On the contrary, it seems to me to be much more likely that there would be all kinds of negotiation, not least because it would result in one or more member states being outvoted. I do not think these are. This is a very complex matter, and I have sought to try to explain as best I can how we see it working but, of course, I will write to the noble Lord in more detail about his precise concerns. I am not sure that he has really satisfied me about the cutting edge of his amendment, and I have clearly not satisfied him. We will just go on boxing and coxing while other noble Lords have to listened, so I think it is better if I write to him and try to clarify the Government’s understanding of the reasoning and the reason why primary legislation would be justified against his clearly very strongly held view that it would not be justified and might hold things up.

Will the Minister ensure that all Members of the Committee who have taken part in our debates so far also receive the letter that he is going to send to the noble Lord, Lord Kerr?

Yes, of course I will.

I want now to turn to the next point that the noble Lord raised, which is to do with Article 64(3) of the TFEU on the reverse of liberalisation of capital movements to or from third countries. The noble Lord, Lord Kerr, indicated he did not fully understand what the Bill means. He interpreted it as allowing a move back from QMV to unanimity. Article 64(3) allows for unanimity for the adoption of,

“measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries”.

I do not know where this phrase “step back” originally emerged from. I do not know whether it was way back in the original draft of the European constitution. It may have been. It is used to do that which we believe should be subject to an Act of Parliament. Once again, I will obviously look at it very closely, but that is why we believe it is in the Bill in the form that it is and why we think an Act of Parliament is the right way forward.

Those are the detailed points that were raised. As I said about the phraseology that comes down to us from legislation under a previous Government, there is matter for further reflection. I fully accept that just because it was there before does not automatically mean that it is the right way forward now, although the previous Government undoubtedly thought that there were good reasons for it, otherwise they would not have put it there.

Clause 7 covers four categories of passerelles—I do not want to detain the Committee by listing them all now—that cover a wide range of different passerelle devices with which we are concerned. I like to think that Clause 7 represents a clear step, which in principle although maybe not in detail has the support of noble Lords generally, towards enhancing parliamentary control over the Government’s participation in a range of important passerelle decisions at EU level. The result ought to be—indeed, the coalition Government believe it will be—an increase in Parliament’s, and ultimately the British public’s, sense of ownership of and engagement with the future direction of the EU.

Of course, in the highly sensitive areas listed in Schedule 1, as we know and have debated endlessly in Committee, the referendum lock would apply on top of parliamentary approval. However, an Act of Parliament is required in the other areas listed in the clause, which surely can only be a bonus for the public trust and accountability that we are all working towards in this legislation and in our work on the European Union generally.

I thank the noble Lord warmly for his reply, particularly for what he said about looking again at the wording “or otherwise support”. Whatever its origins, I am sure the Government can do better and that the change would solve a lot of problems not just in Brussels but here. How would the Government advance the case for the Act of Parliament that would be necessary if the law prevented them supporting it? We are slightly in Alice in Wonderland here, and plenty of adjustments to the wording would solve our problem.

The noble Baroness, Lady Falkner, asked me a question that I do not quite understand. My objection to Clause 7(3) is based purely on its wording “or otherwise support”. My objection to Clause 7 as a whole applies in addition to the list in Clause 7(4), which, as the Minister understands, I think is a little too long. I have no objection to Clause 7(2), but I am puzzled by Clause 7(4)(c), (e) and (f). I am very grateful to the Minister for saying that he will reflect on Clause 7(3). I echo the noble Lord, Lord Hannay, in talking about the locus classicus for “or otherwise support”. The phrase is most likely to cause us major problems at the start of Clause 6, which deals with bigger issues than those that we are looking at in Clause 7.

I am grateful to the Minister for saying that he will reflect on the matter and that he will write to me about Clause 7(4)(e) and (f). I hope that he might also write to me about Clause 7(4)(c), if only to explain to someone ignorant like me exactly what the relevant passage of the treaty is all about, and why the Government would object to a move back to unanimity, which seems to me to be slightly inconsistent with their overall stance on decisions.

I do not wish for the moment to protract the discussion on whether Clause 7 should stand part.

Clause 7 agreed.

Clause 8 : Decisions under Article 352 of TFEU

Debate on whether Clause 8 should stand part of the Bill.

I have nothing to say except to point to the words “or otherwise support”. I will say no more than that. Those words are there in the first line, and I hope that the next time we look they will have vanished.

My Lords, I should hate to delay the Committee, bearing in mind that this clause stand part debate has been introduced so briefly. I have not spoken in these proceedings since Second Reading when I expressed my concern about certain aspects of the Bill, which I have to say remains. As chairman of the Justice and Institutions Sub-Committee of the European Committee—although I am not speaking for the sub-committee—I am concerned as to the effect that the provisions will have on matters relating to judicial and police co-operation. I fear that our ability to act flexibly will be compromised.

I have a question for my noble friends on the Front Bench, of which I have given notice to my noble friend Lord Wallace of Saltaire. This sub-committee has just had before it a proposal for a Council regulation under Article 352, the subject of this clause. It is about a matter as mundane as the publication of the Official Journal, which noble Lords will know is the source of the authentic versions of EU legislation and other documents. At the moment, Article 297 provides that the authentic version is the published and printed version. The proposal for this regulation is that the electronic version should become the authentic version.

I am advised that if this regulation does not become law before the passing of this Bill—if that is what should happen—an Act of the United Kingdom Parliament will be required to implement it. I have read very carefully Clause 8 and the various proposals and clauses with which this clause would comply. One such is the Act of Parliament and the other is if it is a matter of urgency, which would probably be stretching a point—my noble friends would be accused of stretching a point if they were to say that—or an exempt purpose. I do not read it as an exempt purpose, although I am open to be corrected. Do we really propose to have an Act of Parliament to implement matters as mundane as this?

My Lords, those of us who have been around the European communities are familiar with all the problems of Article 352 in its previous formations—Article 308 and even Article 235. It was the competence creep article that the forebears of the noble Lord, Lord Pearson of Rannoch, complained of many years ago. The ECJ and this article were the basic problems of the competence creep about which they so often complained, which is why Clause 8 is in the Bill.

On the specific question asked by my noble friend Lord Bowness, it is not yet clear whether the process of Article 352 will be used to switch the Official Journal from written to only electronic form. But if it were used, both in the German Bundestag and the British Parliament, there would have to be parliamentary approval. As noble Lords will know, when the clause says an Act of Parliament, it may be a clause within another Act of Parliament but it would have to be subject to parliamentary approval. This is a hard, technical case and I suspect that when it comes to it, other means will be found of approving this measure than Article 352.

Article 352 will now be used a great deal less often than its predecessors, again because the Lisbon treaty provides in so much more detail for so many other competences which the EU now has. Although during the period 2004-09, the predecessors to Article 352 were used a good many times, most of the purposes for which it was used during that period would now be covered by specific articles in the treaty. I hope that I have satisfied noble Lords with that.

Whatever the specifics of the point raised by the noble Lord, Lord Bowness, does it not illustrate the need to include in this clause some equivalent of the significance test provided in Clause 6? I wonder whether, in the spirit of co-operation and willingness to consider things in a flexible way, the Government might take away and consider—for all of these later clauses that require an Act of Parliament rather than a referendum—some flexibility that would allow a significance test to be applied by a Minister. That would require a lower level of parliamentary approval in cases where we are dealing with technicalities rather than important issues of policy.

Of course we will reflect on that, but I remind noble Lords that the purpose of this Act is to improve parliamentary scrutiny and oversight of the procedures of the EU.

Did I understand the noble Lord correctly when he said that the proposal is that the Official Journal of the European Union should only be published online? If so, that is quite a serious proposal because not everyone has online access.

My Lords, I do not wish to take up the time of the Committee. The proposal as I understand it is to continue producing the printed version. It is a question of which version the courts will recognise. The courts have said to date that only the printed version is the authentic one. If this proposal goes through, they will be able to accept the electronic version. The noble Lord will not be disfranchised by not being online.

Clause 8 agreed.

Clause 9 : Approval required in connection with Title V of Part 3 of TFEU

Debate on whether Clause 9 should stand part of the Bill.

My Lords, the question of whether this clause should stand part of the Bill gives us an opportunity to keep up to date with the Government’s present intentions regarding Article 3 of Protocol 21 of the Lisbon treaty. Perhaps I may remind the Government of their great leader’s statement made in late 2009:

“We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law”.

That is from the Prime Minister before he became so. The other quote I give the Government in probing this matter is from Mr David Lidington, made on 20 January this year:

“The UK has until 31 May 2014 to choose whether to accept the application of the Commission’s infringement powers and jurisdiction of the ECJ over this body of instruments or to opt out of them entirely, in which case they will cease to apply to the UK on 1 December 2014”.

More importantly—this is what I want to check up on—Mr Lidington went on to say that:

“Parliament should have the right to give its view on a decision of such importance. The Government therefore commit to a vote in both Houses of Parliament before they make a formal decision on whether they wish to opt-out”.

As I understand it, the provision in Protocol 21 allows the Government to opt out entirely from the whole justice and home affairs proceedings in Lisbon. It is true that if they accept an amendment to any of those provisions in the mean time, that provision then stands. Further, if in the mean time they opt in to anything, the 2014 deadline might not apply. I hope that your Lordships will feel it is helpful if the Government bring us up to date on how their decision is moving on opting out of the whole of the JHA provision. The last time I raised the matter was in Oral Questions, when I was told from the Front Bench by the noble Lord, Lord McNally, that this was all very difficult and sensitive and that the Government had not made up their mind. Have they made any progress?

My Lords, I shall not repeat the speech of the noble Lord, Lord Kerr, because it would have gone by so fast that what I have to say would not register.

We understand that, broadly speaking, the Government have up till now opted in rather than opted out of the arrangements made under this clause. Is there anything that they identify on the horizon which might lead them in the opposite direction to that which they have taken thus far?

My Lords, I have just spent the weekend in a part of France, the Dordogne, where English seemed to be spoken rather more often than French. I am conscious that the national interest in terms of co-operation in matters of civil and criminal law is a complex area given that there are now nearly 2 million British citizens living in other states of the European Union—in Spain, France, Portugal, Cyprus and elsewhere. I have to say in answer to the noble Lord, Lord Pearson of Rannoch, that we have not yet come to the point where we must take a final decision on opt-in and opt-out. I have say to the noble Lord, Lord Triesman, that Her Majesty's Government have opted in to the majority of measures which have come up since the last election, but perhaps I may quote holy writ, otherwise known as the coalition agreement, which states:

“We will approach forthcoming legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system”.

That is what we are doing.

Clause 9 deals in particular with the use of three passerelles specific to the area of justice and home affairs. These are in addition to the Government’s recent commitments to enhance current parliamentary scrutiny arrangements on the use of JHA Title V opt-in and Schengen opt-out decisions following the Written Ministerial Statement of my noble friend Lord Howell and that of the Minister for Europe on 20 January this year. As your Lordships' House will be aware, the details are subject to continuing discussions between Parliament and the Government, which is part of our commitment to enhancing parliamentary control over three key EU decisions.

I remind your Lordships that the passerelles are: Article 81(3) of the TFEU, which permits measures concerning family law with cross-border implications to be subject to the ordinary legislative procedure and therefore qualified majority voting; Article 82(2)(d) of the TFEU, which enables the Council to add to the list of criminal law procedures that can be subject to subsequent EU legislation under the ordinary legislative procedure; and Article 83(1) of the TFEU, which allows for additions to the list of criminal offences and sanctions in the areas of serious cross-border crime on which the EU can set minimum standards. These are considered to be sufficiently serious and significant moves for this clause to stand part.

The parliamentary approval process for the three passerelles comprises two stages rather than one. This reflects the operation of our opt-in protocol on the area of freedom, security and justice annexed to the treaties and, more specifically, the arrangements governing our opt-in. It requires two decisions to be taken: first, the initial opt-in to negotiations and, secondly, the adoption of the final negotiated measure. Clause 9 affords Parliament control over both these decisions by requiring a positive vote in both Houses to approve the Government’s proposal to opt in to the negotiation, and then parliamentary approval through primary legislation once the UK has opted into the negotiation and that negotiation is complete.

Having said that, the clause helps to fulfil pledges made in the The Coalition: Our Programme for Government, in that the use of any passerelle clause will be subject to approval through an Act of Parliament and represents an enhanced level of control afforded to Parliament. Having reassured the Committee on that, I hope that it will accept that this clause stand part of the Bill.

My Lords, will the Minister clarify something? I think he said that the Government are opting into some of these things as we go along. Will those opt-ins eventually be subject to parliamentary approval, or maybe when we come to the end of May 2014 there will not be much left to opt into because it has all been done? In that case, what would be the force of a vote in both Houses of Parliament?

My Lords, I am sure that the noble Lord reads all the reports that come from the parliamentary scrutiny committees of both Houses, which I assure him follow these questions very closely and which are reported to both Houses.

Clause 9 agreed.

Clause 10 : Parliamentary control of certain decisions not requiring approval by Act

Amendment 48B not moved.

Debate on whether Clause 10 should stand part of the Bill.

This is getting hackneyed, but the magic words are there in the first line of the clause and in subsection (2). I have one small point of substance to make in addition in relation to Clause 10, where we have got down to reasonably light procedures—parliamentary approval by a Motion in both Houses. Therefore, my concerns are much reduced compared with my concerns about the appropriateness of the heavy provisions in some of the previous clauses. Indeed, my concerns about Clause 7 and the scope of Clause 7(4) would be more than met if the Government would consider moving some of the less significant items in Clause 7 to the procedures that we are now looking at in Clause 10. A Motion of both Houses rather than an Act of Parliament is much more likely to be right in relation to the fairly inconsequential and urgent matters that I was talking about under enhanced co-operation.

The point of substance that I want to raise comes under Clause 10(1)(c), where a procedure is laid down for the approval of decisions under Article 252 of the TFEU permitting an increase in the number of Advocates- General. There are eight Advocates-General assisting 27 Justices of the European Court of Justice. Ten years ago there were eight assisting 15, so clearly the ratio has worsened and should be corrected. The Advocates-General provide a useful element assisting the Court of Justice.

I was a member of the sub-committee of the splendid European Union Committee chaired by the noble Lord, Lord Roper. The sub-committee was chaired by the noble and learned Lord, Lord Bowness. A month ago, we recommended that an increase in the number of Advocates-General should be made as soon as possible, because that comparatively straightforward reform would assist the Court in increasing the speed with which cases could be dealt with while improving the quality of decision-making. We pointed out that there was provision in the treaty for an increase in the number of Advocates-General serving the Court and we recommended that the Court of Justice submit a request for an increase to the Council. I do not pretend that it is a very big deal that there would have to be a Motion in both Houses before we could agree. I take this opportunity to say that I hope the Government will agree and will be ready when the right moment comes to see the increase in the number of Advocates-General, which the Court clearly needs and which the UK legal profession believes it needs and is asking for.

My Lords, I take this opportunity to support the remarks of the noble Lord, Lord Kerr of Kinlochard. I deny absolutely the title “learned”: I do not think that even calls for our Standing Orders, but I thank him. Nevertheless, given the state of the Court of Justice and the need for speedy resolution of disputes in it—as indeed in any court—it is extremely important, as I said, that we should not make the procedures so cumbersome that delay follows. If your Lordships look at this list, you will see, among other things, amendments to the statutes. Many people think it not unreasonable for the rules of procedure, at least those of the courts, to be determined by the courts themselves. They should not be a matter for the Council of Ministers, still less a matter for debate in both Houses of this Parliament. Again, I appeal to my noble friends on the Front Bench to face the prospect of some flexibility in matters relating to justice and co-operation in judicial and police matters. As I said on Second Reading, we do not know where many of these things are going and, in many instances, we need to make decisions quickly rather than later.

Briefly, my Lords, I strongly support the remarks made by the noble Lord, Lord Kerr of Kinlochard—and, indeed, the noble Lord, Lord Bowness—because this would be a great opportunity for the Government to consider his specific suggestions; namely, that some elements of Clause 7 should be reintroduced in Clause 10, which has that lighter procedure framework. In other words, it has the construction of a Motion to be passed rather than anything stronger in respect of matters where the Government might, later on, quite understandably regret the tangle into which they have got as a result of decisions whose details would look quite routine. We are thinking here, obviously, of things that start as unanimous decisions and end up as QMV, depending on the specific terms and articles being used for any measure in this field.

There are those other cases, too, where the UK might not be in favour of a decision that was subject to QMV yet the country and the Government would be bound by it because of the very reality of the voting in the Council of Ministers, or whichever relevant council it might be. The Government could regret that later on because it would create quite an onerous obligation for them to go back into full procedure in Parliament—although in general terms we are all in favour of that intrinsically—on matters which really should be dealt with quite easily and expeditiously. In the new spirit of co-operation which has been breaking out in this, the seventh allotted day of our Committee of the whole House, where the Government are now listening—the whole House is grateful for that—I hope that before we terminate the Committee's proceedings, today or later this week, there will be some promise to reconsider this vital area as well.

My Lords, my point is even briefer. Can the Minister give a little explanation of the Motion being “without amendment”? For example, if there were to be a relatively small, technical amendment, would it in fact mean that parliamentary approval was withheld? Perhaps the Minister could say a little more on that point: why the stress on “without amendment”?

My Lords, perhaps I may start by answering the noble Baroness, Lady Williams. If I am correct—I am not an expert on parliamentary procedure—I think that on SIs we have to approve a Motion without amendment. I will take advice and write to her on that subject but I do not think it is a major issue.

Clause 10 is a proposal for light-touch parliamentary scrutiny of decisions taken in the European Union. The requirement for each House to pass a Motion is either an invitation for each House to accept that this is not significant, or so clearly in Britain's national interest that we should let it go by, or it is an invitation for the scrutiny committees to pay some attention and then bring a Motion to each House.

On the question of proposals for judges and Advocates-General, these matters have been covered by an excellent report from the House of Lords Scrutiny Committee, to which Her Majesty's Government will reply in good time. We do not see that this in any sense provides a greater obstacle to a decision one way or another; it merely underlines the desirability of Parliament being aware of what is happening and being required to say either, “Yes, this is fine”, or, “We’re not entirely sure and we require an explanation on each of these various administrative and other issues”.

Having I hope reassured the House on that, I hope that the House will accept that Clause 10 should stand part.

Clause 10 agreed.

Clause 11 : Persons entitled to vote in referendum

Amendment 49 not moved.

Clause 11 agreed.

Clause 12 : Separate questions

Amendments 50 to 52 not moved.

Clause 12 agreed.

Amendment 53

Moved by

53: After Clause 12, insert the following new Clause—

“Repeat referendums

Where a referendum has been held in pursuance of any of section 2, 3 or 6, a further referendum on the same treaty or decision, or treaties or decisions, cannot be held until a period of 5 years has expired.”

Unlike the majority of amendments that we have discussed at some length so far, this amendment is intended to be helpful to the Government, and I hope that they will take it in that spirit. It is in my name as well as that of my noble friend Lord Pearson and the noble Lord, Lord Stoddart, and it is simplicity itself. It would ensure that a future Government, who may be even more Euro-enthusiastic than this one, will not be able to reverse the effect of referendums held under Clause 6 by immediately calling another referendum to try to get a different result.

Noble Lords may say that this is completely unnecessary and that a referendum is a referendum and the result must stand, but we must bear in mind the unsavoury precedents set by the EU when referendums that give the so-called wrong answer are deemed inoperative by the Euro-elite. In 1993, Denmark voted against the Maastricht treaty, for example. It was tossed a few concessions and told to vote again and do better this time. In 2001, Ireland voted against the Nice treaty; similarly, there were more concessions and another referendum. In May 2005, France voted by a large majority against the constitutional treaty, followed three days later by an equally emphatic rejection by the Dutch electorate of that constitutional treaty. So what happened then? Let us bring on the Euro-clowns. First up is President of Luxembourg, Jean-Claude Juncker, who said after the two referendums:

“I really believe the French and Dutch did not vote no to the Constitutional Treaty. Unfortunately the electorate did not realise that the Constitutional Treaty was specifically aimed at meeting their concerns and that’s why we need to have a period of explanation”—

or perhaps now a period of reprofiling.

Next in the ring is Monsieur Giscard d'Estaing, the ex-President of France, one of the hapless fathers of the constitutional treaty, who said:

“It is not France that has said no. It is 55 per cent of the French people”.

Work that one out. He went on to say:

“The rejection of the Constitution was a mistake which will have to be corrected ... It was a mistake to use the referendum process, but when you make a mistake you can correct it”.

In other words, do not use the referendum process and do not ask people what they think—just tell them what is good for them.

Clown number three was the Italian Foreign Minister at the time, Giuliano Amato, whose considered opinion was that the no votes were,

“a request for more Europe not less”.

In the words of one of the most respected correspondents, or columnists, “You couldn’t make it up, could you?”.

For the sake of accuracy about what happened, is the noble Lord not aware of the fact that in France a major part of the no vote on the constitutional treaty was because of the argument that that treaty was not sufficiently social? People like Laurent Fabius made it part of their campaign that, “It’s not that we’re against Europe, it’s that this isn’t for a sufficiently social Europe”. In that sense, the argument was right; this was a vote not against Europe but against a particular view of Europe.

My Lords, I am very familiar with that argument, which was wheeled out after the constitutional referendum by numerous pro-Europe commentators—they said that it was about the colour of Monsieur Chirac’s socks or something; it was not about the constitution at all—but I know, because I was in France at the time of the referendum, that people were very engaged in the debate. So whatever the noble Lord on the Front Bench may say, there was a rejection by the French people by a 55 per cent majority of the constitutional treaty. I do not think that his arguments hold water.

I remind the noble Lord that every French voter received a copy of the Lisbon treaty, so they were perfectly well aware of what they were doing—unless they are stupid, which of course they are not.

That is right. It is history now, but I believe that they were voting on the constitution and they voted against it. The noble Lord, Lord Dykes, is not in his place so perhaps it is not worth saying this, but these are not the ravings of a swivel-eyed Europhobe or the poisonous meanderings of the Murdochite press. These are simple facts—it is what people said after the votes on the constitution and on the previous treaty, as I mentioned.

On the dubious basis that a no vote was a request for more Europe, not less, after a period of reflection the constitution was wheeled out again, this time badly disguised as the Lisbon treaty. Monsieur Giscard d’Estaing himself had the decency to admit that the treaty was,

“purely a legal rewriting—incidentally unreadable—of the draft Constitutional Treaty”.

The reason, he admitted, was above all to avoid having referendums.

Yet again, that ungrateful bunch the Irish threw a shillelagh in the works by voting against the Lisbon treaty. What an unnecessary obstacle these referendums are to the furtherance of the great project. For their pains, the Irish were roundly vilified. A leading German politician said that a no vote was real cheek, while a British Labour MP said that the Irish had voted no because they had become entirely too arrogant. True to form, Ireland was shamelessly vilified by the Eurocracy and told to hold another referendum, which duly gave the so-called “right answer”. Not that this has done the Irish any good, of course; their reward has been to be sacrificed on the altar of the solidarity of the euro, to be loaded with debt that they will probably never be able to pay back and to be told by the French that they must raise their corporation tax. So much for EU solidarity.

Noble Lords can see that the European elite have form when it comes to reversing the results of referendums that do not suit them. The amendment will reassure the people of this country at least that when they vote no in a referendum on any of the items in Section 6 against a transfer of further powers to the EU, their vote will not be nullified by an immediate demand for another referendum and to think again. The Bill has a referendum lock in it.

The noble Lord has made a very good case for the weakness of referenda. However, I ask him to consider a little further back in history. He may recall that in 1975 there was a referendum in this country, which was carried by a substantial majority, on whether we should stay in the European Economic Community, as it then was. Less than five years later the Labour Party, then in opposition, voted at its conference to leave the European Community. This is not quite as clearly somebody else’s problem as the noble Lord suggests.

I do not think I suggested that it was somebody else’s problem. This deals particularly with this country and the Bill in front of us. I simply want to make sure, as far as possible, that we do not have the situation that has arisen so lamentably and so frequently in the European Union, whereby the results of referenda are immediately reversed because the EU elect do not like the result. The Bill contains the referendum lock. This amendment will add unpickability to that lock. I hope the Government will consider it in that spirit. I beg to move.

My Lords, few things have done more harm to the reputation of the European Union than the telling of countries that have voted against new treaties or treaty changes that they should carry on voting until they come up with what the other members or the Commission consider the right answer. Behaviour of that sort is a denial of the right to say, “Change cannot take place unless we all agree and, as we don’t all agree, you and I must put up with the status quo”. That is what signing a treaty is all about. I submit that what happened over Denmark in the early 1990s, after the Danish people voted no to Maastricht in June 1992, was an abuse of power. It was also a terrible lost opportunity, which was responsible for much of the trouble and strife that hit the Major Government.

My noble friend Lord Spicer wrote a very perceptive article on this in Total Politics in March of this year. I hope Governments have learnt from what then happened. The Conservative Government were not happy about many aspects of Maastricht, particularly the removal from sovereign states of the power to manage their own economies. While we had opted out of the euro, there was a nagging fear that the European Court might even find that our opt-out was illegal.

If the Conservative Party had such objections to the Maastricht treaty, why did the Prime Minister of the time, John Major, on the day of the negotiation of the treaty describe it as “Game, set and match for Britain”?

I was referring to the opt-out and am describing what happened subsequently. I am not here to defend the Major Government, of which I was a member at that time, although not later when it came to ratifying the treaty. I am just describing the history of the matter.

For the record, would my noble friend confirm that the phrase we have just heard was not uttered by Prime Minister Major?

I hear what my noble friend says. I have not the faintest idea whether it was uttered or not. By the time all these great events were occurring, I was reading the Royal Gazette in bed in Bermuda and not the Times or the Telegraph here in Britain. All I am telling noble Lords now is what the history of the matter is. The history that I have related so far is entirely correct. The Conservative Government were obviously not happy about many aspects of Maastricht, which was precisely why they, with considerable perspicacity, negotiated the opt-out. However, having opted out, there were still great dangers ahead. Therefore, when the Danes rejected Maastricht there was an opportunity to block the treaty and work for a fresh start in which energies would be concentrated not on trying to manage the economies of the member states but on extending the borders of the EEC and creating a fully competitive common market within those borders. But that opportunity was all thrown away. If it had not been and there had been a fresh start, the EU would not be in the mess it is in today, bailing out countries which are “broke” as a result of having been put in the straitjacket of the euro.

This amendment cannot affect how we should react if there are further defeats of proposals for treaty changes in other countries, although I hope that we have learnt some lessons in that regard, but it would prevent a British Government going along with EU bullying if the people voted no in a referendum—and that would be a very good thing.

My Lords, I am a signatory to this amendment and, of course, support it. The noble Lord, Lord Willoughby de Broke, has provided a good deal of the history of referendums in other countries. The most recent case of a further referendum was in the Irish Republic, where the first referendum was held on 12 June 2008. During that referendum, Mr Barroso intervened to warn that, if the Irish rejected the Lisbon treaty, there was no plan B under any circumstances, and that there would be dire consequences not only for Ireland but for the whole of the European Union. Nevertheless, the Irish voted no on a 53 per cent turnout, with 53.4 per cent voting no and 46.6 per cent voting yes. There was pandemonium all over the place, especially in the European Union. Many people thought that the Irish had spoken and that that should be the end of the matter, especially as Mr Barroso had denied that there was a plan B, but obviously there was a plan B—another referendum. That took place on 2 October 2009. As noble Lords will know, the result was reversed after a bitter campaign, during which the European Commission and the Irish Government weighed in with taxpayers’ money—probably illegally, incidentally. According to Mr Jens-Peter Bonde, who at that time was a senior MEP, the Commission and the Irish Government between them spent millions of euros supporting the yes campaign. As if this huge support was not enough, large amounts were also contributed by vested interests, including €250,000 by Ryanair. In fact, 10 times as much was spent on the yes campaign as on the no campaign—little wonder, then, that the Irish people reversed their first vote by a 2:1 majority.

However, that was not the first time that the Irish people had been made to vote again. When they had the temerity to vote no to the Nice treaty, they had to vote again to provide the only answer that was acceptable to the European Union and the Irish Government—in other words, if people do not provide the right answer first time round, they will be made to vote again until they do. That is the impression that is given, and that is why in many respects the European Union and some of the nation states are held in contempt by their peoples.

However, as we have heard from the noble Lord, Lord Waddington, the Irish people were not the only ones who were made to vote again. When the Danish people voted no to the Maastricht treaty in 1992, they were forced to vote again a year later in 1993. Again, the no campaign was out-financed and clobbered by their own Government and others with vested interests in obtaining a yes vote—and this was duly achieved. However, as noble Lords may remember, when the result was declared the Danish people were so annoyed that they actually rioted in Copenhagen, the police fired 113 shots into the crowd when it was trapped, and 11 people were treated for gunshot wounds. When people feel cheated about their decisions, in some cases and under some circumstances, they are prepared to cause mayhem and riot.

Therefore, for these and other reasons, I support the amendment and hope that the Government will accept it. Before I sit down, I ask for an assurance from the Government that in any referendum under the Bill they will not use taxpayers’ money to support one side of the argument, and that they will prevent the use of taxpayers’ money by any institution of the European Union to support one side of the argument. That should include the European Parliament, which has just voted for a change in funding rules that will allow cross-national EU political groups of MEPs to take part in referendum campaigns in member states. It would be quite outrageous if MEPs from any part of the EU, with taxpayers’ money through their expenses, were able to indulge themselves in a specifically British referendum. Unless the Government can assure us that they will block such activities, I support the amendment.

My Lords, it is very tempting to support the amendment, and the noble Lord, Lord Stoddart of Swindon, made some good points about expenses. The forced holding of second referenda has been shameful and has involved quite improper practices. However, I should like to make two points on why the amendment may not be appropriate for this country. The first is that any second referendum would require the approval of both Houses of Parliament. I trust that this House, unless it is dangerously interfered with, would act properly in that situation. Secondly, in the event of a referendum on “in or out” in which people voted to stay in but certain developments in Europe within the five-year period made the situation dramatically different, it would be unwise to be limited by a five-year rule that the UK could not reconsider the issue again in the light of future developments. Many Members of this House are sympathetic to the amendment on the improper use of forced second referenda, but such a measure would not be appropriate in this country.

My Lords, many people would be sympathetic to the amendment. There was, however, a difference between the two referenda in Ireland, and the difference was that the Irish Government believe that they negotiated a stronger deal. They were going to lose their Commissioner and various other things, so they negotiated hard and obtained changes.

The way in which Brussels went about things in the Republic was brutal. People felt intimidated and threatened, and their financial security was threatened. Of course we can see why that happened and the genuine concern. Public opinion in the Republic since the imposition of what the public regard as penal conditions surrounding the bailout is shifting against the European Union. I have no doubt that, as the noble Lord, Lord Stoddart, said, there was intimidation. It was not a pretty picture. However, one thing that would worry me about the amendment is that if a proposition were before our Government and Parliament that contained certain conditions that we objected to and those conditions were subsequently, because of the referendum, negotiated out, where would we be if we found that we had what we had asked for? We would not be able to do anything about it for five years. That is my only concern. I do not dispute the sentiment or what actually happened, because I saw it from next door, and it was brutal. However, the Irish Government negotiated a better deal. That is my only reservation about the amendment. If we found that we were able to negotiate, we would be hamstrung.

The other lesson is that having a referendum behind you as a requirement has proved to be a strong negotiating tool. The Irish are a classic example. Because of their fundamental financial weakness, they were not able to press it home, but they got improvements. In our circumstances, what would we do if we were able to negotiate what we wanted and achieved our objectives?

My Lords, I was not going to speak for very long on the amendment, which is in my name as well, until the intervention of the noble and Europhile Lord, Lord Garel-Jones, who informed us that John Major did not say, after the Maastricht negotiations, that he had achieved game, set and match. That is generally accepted and I must ask the noble Lord: if Mr Major did not say that, who did, or is the whole thing just a figment of Eurosceptic imagination?

I have some advantage over both the noble Lord and the British press: I happened to be there at the time. First, Prime Minister Major never said any such thing. Secondly, if it was said, it was said by a high-ranking civil servant, whose name, for obvious reasons, I will withhold.

That would be just typical of the Eurocrats.

However, it is true that the Conservatives forced through the Maastricht treaty, so presumably they were quite pleased with it. Some of us resisted it in this House. In his defence, one has to say that Mr Major had discovered the error of his ways by 12 November 1996, when he wrote a letter to M Jacques Santer, who was then, whatever it was called at the time, the boss of the European Commission. The letter shows how Mr Major, and possibly the Conservative Administration at the time, realised how they had been deceived by the cunning and duplicitous octopus in Brussels. His letter is very brief, and I have read it to your Lordships before—in 1998, I think, so it bears repetition now. It reads:

“Dear Jacques,

My intention in agreeing to the Protocol on Social Policy at Maastricht was to ensure that social legislation which placed unnecessary burdens on businesses and damaged competitiveness could not be imposed on the United Kingdom. The other Heads of State and Government also agreed that arrangement, without which there would have been no agreement at all at Maastricht.

However, in its judgement today, the European Court of Justice has ruled that the scope of Article 118a”—

that is, health and safety at work, and things like that—

“is much broader than the United Kingdom envisaged when the article was originally agreed, as part of the Single European Act. This appears to mean that legislation which the United Kingdom had expected would be dealt with under the Protocol can in fact be adopted under Article 118a”.

The following is a good paragraph:

“This is contrary to the clear and express wishes of the United Kingdom Government, and goes directly counter to the spirit of what we agreed at Maastricht. It is unacceptable and must be remedied”.

He then says that he will table amendments and so on to it. His penultimate paragraph says:

“I attach the utmost importance to these amendments and I shall insist that they form part of the outcome of the Intergovernmental Conference. I do not see how new agreements can be reached if earlier agreements are being undermined”.

That was in the run-up to the Amsterdam treaty. The Conservatives then lost the election and the new Labour Government signed up to the Social Chapter anyway, so we have the working week and so on.

That is the full picture behind the noble Lord’s intervention. At least we can see that, by the time he left office, Mr Major had understood the nature of the beast with which he was dealing, although of course when poor Mr Blair came along, he went back to the whole business of being at the heart of Europe—being nice to them and so on. We get everything that we want and that is why we are where we are today.

Finally, the noble Lord, Lord Liddle, said that the reason the French voted against the Giscard constitution was that they wanted a more social Europe. My simple question to him is: why did the Dutch then vote in exactly the same way two days later? I support the amendment.

My Lords, obviously the past is made up of facts but, as today has illustrated richly, the retelling of history is made up of the view taken by those who look at the facts. Having listened to what has been said in this debate, I have to say that some of the accounts of the facts do very scant justice either to what took place or, indeed, to some other countries. To be told that people were made to vote again and that the referenda were enforced appears to give very little credit whatever to the determination of the peoples of Denmark, Ireland, France or Holland, and I do not see why we should spend our time here insulting them. They were perfectly capable of settling the first propositions put in front of them and they were perfectly capable of assessing the changes. If it is said that, for example, consent was finally achieved in Ireland because of the financial problems that the country was facing—bailed out, it was said, by the straitjacket of the euro—I find that an astonishing bit of history. The banking and liquidity collapse of the country appears to have had no role; the sub-prime derivatives in which the banks of that country were so heavily involved that it had to set up a “bad bank” to deal with the mass of debt that had been accumulated appears to have had no role; and the massive speculative forces in property, finally producing a major financial threat which arose from those kinds of difficulties, also apparently had no role.

Will the noble Lord give way? If he is quite comfortable about people voting in a referendum, saying no and then being asked again, what would he have said if the Irish had voted no twice? Would he have said that it was quite legitimate for them to be asked to vote a third time?

My Lords, however many times the Irish people were asked to vote would have been a matter for the Government of Ireland. In the same sense, I hope that we would have sufficient sovereign pride to conclude such an issue ourselves, although I think it highly improbable. Perhaps I may add that the circumstances in which people might be asked to vote a third, fourth or subsequent time seem not at all likely.

A problem for Ireland when it adopted the euro was that the inflation rate there was much higher than in Germany, which resulted in virtually negative interest rates in Ireland. That resulted in people borrowing as much as they could and putting the money into assets such as property. That produced the property bubble, and the bursting of the property bubble was the main cause of the banking system’s problems.

My Lords, anybody who looks at the difficulties that have been experienced in many mature economies, whether or not they are in the euro, will recognise that the financial problems created by property speculation and, in particular, by funding sub-prime derivatives in the property market have nothing whatever to do with the euro in most cases. It was a wave of mad speculation—it can only be described as madness—because it was possible to do it under the interest-rate conditions that obtained generally around the world. They are not so varied between countries in either hemisphere.

Of course it is true that in the referenda conducted in the countries that we are discussing, they concluded, as they were perfectly entitled to do, that what was being put in front of them was not good enough. We know, however, in part from the noble Lord, Lord Empey, in terms of the role of the Commissioner in Ireland, and the issues that came up in Denmark on whether the people would be compelled into defence propositions that they did not like, or whether people in Ireland would be compelled to change the abortion law or consider NATO membership, that all of those things produced circumstances in which there was a no vote. Those Governments negotiated again and got those terms changed. Protocols were introduced in almost every incidence to get those terms changed. They then went back and asked the people of their countries whether the changes in terms were sufficient to merit a change in the view that they had taken.

That seems to me to be completely legitimate. I cannot for the life of me understand why someone would say that it is a legitimate outcome if you vote no by, say, 52.5 per cent—that is plainly a no vote; I understand that completely—but when it is put again it is completely illegitimate if something like 65 per cent of the people in that vote say yes. What is the point of a sovereign decision by people when they are asked to take a vote if you do not accept the outcome in either direction—like it or dislike it; it is irrelevant? It is their decision and they have taken it. The idea that any country, least of all this one, should feel that it is bound to be strong-armed into taking a different decision if the first decision does not accord with perhaps the general sentiment in Europe is completely fanciful. It is disrespectful to the people of this country and this debate has been disrespectful to peoples of other countries, too.

My Lords, this debate has ranged a little wider than the amendment. We have had accusations of the European elite forcing the holding of second referendums. I wondered whether we were going to be told by the noble Lord, Lord Willoughby de Broke, that the European gendarmerie would be used to force second referendums. I recall him previously raising the question of what the European gendarmerie was for. We talked about EU bullying as if somehow Brussels is different and imposes itself on national governments. I simply remind noble Lords that the European Union is an association of states and that Brussels operates on behalf of those member states. It is the member states which agree on proposals of the sort likely to be put to referendums.

On Ireland, I would simply say that the situation may or may not have been to some extent associated with Irish membership of the euro. The situation in Iceland was an even greater financial bubble and can in no sense be blamed on Iceland’s membership of the euro since Iceland is neither a member of the euro nor of the European Union. We need to get away from that. On the question of financing the Irish referendums, I am not aware of how the second referendum was financed beyond the fact that I have three very good friends in Dublin who took out substantial loans on their houses to guarantee the basic funding for a second referendum. When my wife and I had dinner with them some months after the referendum, they were still very heavily in debt. That suggests to me that there were no sugar daddies, let alone external forces, providing funding.

Clearly the amendment has been tabled with memories in mind of the Danish and Irish experiences. Noble Lords have been reminded that in both cases there were renegotiations, and that the packages that were put back to the electorate represented concessions and opt-outs offered by other member Governments to those Governments who returned to ask their electorates to accept a modified package.

It is not appropriate to accept this requirement in statute for two broad reasons. Should the British electorate vote no in a referendum, the Government clearly will have to reflect on what action to take. If they were to decide to hold a referendum on the same issue—I am sure that there would be arguments over whether it was the same, a similar or a modified issue—they would first have to secure Parliament’s agreement to the new piece of primary legislation required to establish and hold the referendum. That would allow ample opportunity for debate on whether the principle and the timing were right to hold a further referendum on the same subject. I remind noble Lords that Governments will not call referendums in Britain unless they wish to argue that it is in Britain's national interest to accept the case that they are making.

If the Government were defeated in a referendum, it would be tantamount to a defeat of the Government: they would have been defeated on their view of the British national interest. Therefore, the Government and Parliament as a whole would need to be persuaded that a further treaty change would be necessary. It would be unusual for the Government then to consider asking the public the same question in short order, having failed to convince them of the benefits of the treaty change the first time round.

However, there is another point. Given our lack of perfect foresight of future circumstances, there might be a situation where the Government and Parliament might judge that a treaty change previously rejected by the British people was even more necessary and desirable, perhaps because of intervening external or internal events. Flexibility is something that many noble Lords have argued for in Committee: we cannot entirely foretell the future. If both Government and Parliament were then to decide that circumstances had changed enough to warrant asking the people again, Parliament should be able to do this without having to wait for the end of the five-year moratorium. I am happy to repeat that this Government would think it highly unusual and politically costly to suggest rerunning a referendum on the same subject without very good reason. However, for the reasons that I have given, I am not convinced that a fixed-term cooling-off period is the answer. Having people judge such a move at the ballot box surely would be a more effective deterrent. Therefore, I urge noble Lords to withdraw the amendment.

My Lords, I am not sure that I heard the noble Lord answer a question put by the noble Lord, Lord Stoddart of Swindon. It may be that the noble Lord would prefer to answer it in a debate on Clause 13 stand part. I am happy to do that, provided that we have a brief debate on it. The question was: would the European Commission, Parliament or whatever be allowed to contribute to any referendum in this country, presumably on the side of the continuing advance of the Brussels juggernaut?

I am happy to answer that now: perhaps it will enable us to avoid having a debate on Clause 13, which is largely technical. The Political Parties, Elections and Referendums Act makes it entirely clear that there are tight controls on the funding of referendums by political parties and other actors, including those outside the European Union. My understanding of the clause is that the European Commission would not be allowed to spend more than £10,000 in the course of a referendum. I hope that that provides the answer that the noble Lord needs. If any further details are required, I will of course write to him. However, I am sure that he is an expert on PPERA and all the details that the Electoral Commission now oversees.

I asked about the new rules which would allow European political parties to campaign in any country on referendums. Does the existing legislation cover expenditure by MEPs in any country, including our own, in case of a referendum? We need to know that.

I seem to remember that in both the Danish and the Irish referendums there was substantial assistance from Eurosceptic groups in this country in terms of finance and people—but perhaps I am wrong about that. Perhaps my memory is at fault. Perhaps we should consider whether there should be an amendment at a later stage to ensure that such British groups are prevented from intervening in other countries’ referendums. I will have to take advice on that and on some other matters.

I am most obliged to the Minister for giving way again, but the point about MEPs is that they will be able to use their expenses to campaign, and that is taxpayers’ money. If people give voluntarily, that is a matter for them, within the election rules, but if MEPs are spending taxpayers’ money, that is another business. I appreciate that the Minister cannot reply now, but when he considers the matter further he will perhaps take that into consideration.

I am grateful to all noble Lords who have spoken, particularly to those noble Lords who supported this amendment, and even for the qualified support of the noble Lord, Lord Flight. I say to him that this is entirely to do with this Bill and is not to do with a Bill on an “in or out” referendum, when it may well be appropriate to shorten the term between referendums. However, that is a matter for another day and is certainly not part of this debate, which has ranged a little more widely than I wished. I pick up what the noble Lord, Lord Triesman, said. I certainly did not insult anybody. I was simply quoting what some of the European elite said about their own electorates. They were the people who were insulting them, not me. For the moment, I beg leave to withdraw the amendment, but I will probably bring it back on Report.

Amendment 53 withdrawn.

Amendment 54 had been withdrawn from the Marshalled List.

Clause 13 : Role of Electoral Commission

Amendment 55 not moved.

Clause 13 agreed.

Amendment 55A had been withdrawn from the Marshalled List.

Amendment 55B

Moved by

55B: After Clause 13, insert the following new Clause—

“Promotion of United Kingdom’s membership of EU

In participating in a campaign for any referendum held in pursuance of section 2, 3 or 6, or in taking other steps required by this Act, Ministers of the Crown must have regard to the desirability of promoting the United Kingdom’s membership of the EU.”

I move this amendment in the belief that if this amendment, or something like it, is written into the Bill, it could be of value not only to Parliament and to Ministers but to the British people. The underlying purpose of the amendment is to lay a duty on Ministers to put the case for the United Kingdom’s membership of the European Union, not just during a referendum but in general and at all times. It has been said that the coalition agreement on Europe tries to reconcile two conflicting ideas; indeed, I think it was the noble Lord, Lord Wallace, who said that. The amendment is very much in line with that part of the coalition agreement which says,

“Britain should play a leading role in an enlarged European Union”,

and that the aim of the Government is to,

“strike the right balance between constructive engagement with the EU … and protecting our national sovereignty”.

Why should a duty be placed on Ministers to argue the case for Europe? Surely they can be relied on to make that case without a legal obligation being placed on them. I can see some merit in that argument, but the fact is that, in the years since the 1975 referendum and with honourable exceptions, British Ministers of different parties have been very hesitant about speaking up for United Kingdom membership. I am sad to say that that also includes Ministers from my own party while in government. Certainly the last two Prime Ministers, Tony Blair and Gordon Brown, made the occasional fine speech about the benefits of membership. Tony Blair was particularly eloquent when speaking on the continent—for example in his Warsaw speech and in his June 2005 address to the European Parliament. However, inside the UK, his pro-membership speeches were less frequent and, I thought, less impressive.

Of course, both men were so reluctant to speak up mainly because they were extremely worried by and concerned about the possible reaction of the Eurosceptic media, especially the Murdoch press, which spent a lot of time taking Ministers apart, particularly the Prime Minister if they thought he was going too far on the European Union issue. In view of the track record, I believe Ministers need the support of Parliament to bolster them and to give them strength in the face of a hostile media.

There is a further consideration. The noble Lord, Lord Howell, has frequently drawn attention during our debates to the “disconnect”—I think that that is his word—between the British public and their political leaders over the European issue. Indeed, that is his main justification for the Bill and for the plethora of referenda that could flow from it. Certainly, according to public opinion polls, the British remain reluctant Europeans and fairly ill informed about the EU. Given the hostility of the press and the reticence of Ministers, it is hardly surprising that the British should feel that they do not have enough information about what goes on.

There are some exceptions to the ministerial silence, and I am glad that I can mention one Minister in this House. I have already praised the Europe Minister, David Lidington, a Member of Parliament in the other place, for setting out in a Commons Written Answer why he believes that United Kingdom membership is in the national interest. The reasons he gave included: giving British business access to the world’s most important trading zone—that of 500 million consumers —without the barriers of customs or tariffs; the 3.5 million UK jobs that are reliant on exports to EU member states; the beneficial impact of EU trade, amounting to between £1,100 and £3,300 a year for each UK household; and being able to influence developments in the EU and giving the UK greater leverage and negotiating power on the global stage. I thought that that was a pretty good summing up of the case for British membership in a short Parliamentary Answer.

More recently, the Commercial Secretary to the Treasury, the noble Lord, Lord Sassoon, stressed to this House—I think in answer to a question from the noble Lord behind me—that the United Kingdom gets much more out of the EU than it puts in. It is right that Ministers should say that, because sometimes if you listen to the remarks of some noble Lords in this House—members of UKIP—and indeed read the remarks in a number of newspapers, you would think the opposite. The noble Lord, Lord Sassoon, mentioned the access to EU markets, cheaper prices and greater choice on our high streets, more foreign investment and a stronger voice in the world for the UK. I think that it would be very good if we heard the same from the two Ministers representing the Foreign Office here. I have said already to them that I should like to see them make more speeches about the case for British membership. It would be good if the Prime Minister, the Chancellor and the Foreign Secretary also could add their voices to explain not only the economic benefits of membership but also the strategic advantages that the UK derives from working so closely with our nearest neighbours. As we have discovered in this country time and again in our history, what happens on the continent has a major impact on us. So-called splendid isolation, as advocated by noble Lords behind me, is simply not an option in the modern world, if it ever was so.

I make no apologies for moving my amendment in the way that I have. As I have been arguing, I believe that to counteract the sustained hostility of the press, Ministers need the support of parliamentary statute to help them to put the case for our membership of the European Union, of which we have been a member for nearly 40 years—although one might not think so when listening to some noble Lords. Above all, we need a less negative attitude towards the EU. As the noble and learned Lord, Lord Howe, who is in the Chamber, said at Second Reading, the key idea of this Bill is to place an unprecedented system of referendum locks on the statute book. That could, as he warned us, act as a long-term break on UK participation in the European Union.

As many noble Lords have said, this EU Bill is based on the wrong premise about our membership. Instead of erecting a kind of Maginot Line against all these marauding European enemies who apparently are always trying to do us down, we should recognise that the sharing of responsibilities with our partners has been good for Britain and good for Europe. By stimulating Ministers to set out the case for and the benefits of membership, this amendment can not only give the British people the real facts about our membership but begin a new and more positive phase of British membership of the European Union. I beg to move.

The noble Lord will not be surprised that I cannot agree with his amendment. Arguments are put forward for the merits of our membership of the European Union and arguments are put forward about some of the disadvantages and costs of our membership. Where Members of this House and people in this country will disagree is in the balance of those arguments. The noble Lord cannot really be serious in asking for Ministers of the Crown to be bound to put only one side of those arguments in any future debate. Surely, if there is an obligation on Members of the Government, it should be to put a balanced view on any issue to do with the European Union to the House and to the country.

Does the noble Lord really contend that Ministers have performed their duty already? I hear the voice of negativity rather than positivity.

I think that that just illustrates the point that different Members of this Committee will have different views on this matter. My view is that if there has been a bias in the past, it has been for Ministers, in their desire to get the agreement of the House and the country to treaty changes, to downplay some of the consequences of those treaty changes that they did not wish the country to realise until it was too late. That has been part of the reason for the successive loss of trust in the Government and the European Union—the balanced arguments have not been put forward.

I have no argument with the fact that we should require Ministers to set out the arguments on both sides but to try to bind Ministers always to put out an unfailingly positive view of the European Union would be no service to this House or to the country and would simply compound the mistrust that has already been created.

It seems to me that the noble Lord is propounding a pretty odd doctrine. Britain has been a member of the United Nations since 1945. I do not imagine that anyone believes that the UN is without fault but I have not yet seen a ministerial speech about the UN from any party which did other than support it. Britain has been a member of NATO for a very long time. It is an organisation which also has its faults. I have never seen a British Minister make a speech about NATO which did not support it. Why can they not do it about the European Union too?

I may be corrected, but I am not aware that there is any statutory requirement for Ministers to make positive speeches about either of those organisations. It is up to Ministers to take their view and to make those views known. That is all I am saying about the European Union; namely, that it is up to Ministers to take a view and make that view known but that they should be allowed and, indeed, have an obligation on them, to state both sides of the case and make sure that they are not putting a too Panglossian view of the European Union in the way that this amendment would suggest.

I have rarely heard such piffle from any Member of this House as we have just heard. To suggest that Government Ministers would play fair on this issue is addled. At the moment, all the evidence points the other way. They are happier to point in the way of negativity rather than deploy the arguments in favour of the community.

It is a speech. Many years ago, I shared the view of many members of the Labour Party when I expressed the opinion that our membership of the EU was wrong. My noble friend Lord Radice took a different view. He was right and I was wrong. Having been a commissioner of the EU for some time, and having been in charge of transport, the environment and the nuclear industry, I formed the view that on all those issues, the voice of Europe should be positive and heard. I never came to the conclusion that we should somehow shilly-shally on those issues.

My noble friend Lord Liddle was in Europe as well. I think that he would share my view that it is imperative that members of the Commission should be heard. At the moment, their views are drowned out by people who take a contrary view, such as the noble Lord, Lord Waddington, who is a great friend of mine despite our differences of opinion on this issue. When the then President of the Commission, Jacques Delors, spoke to the TUC in Bournemouth, it was a remarkable event. I wish that more members of the Labour Party and of this House had been present. It was remarkable because many people in the TUC did not share that view. But he was rather positive about the virtues of the European Union and he convinced most of those present that that was right.

Unfortunately, in recent times Ministers from both parties have been less than forthcoming with their views on the European Union. I wish that that was not the case. Therefore I support the views expressed by my noble friend Lord Radice on this point. It is incumbent on members of this Administration to speak out about the virtues of the European Union. It is quite impossible for us to withdraw from the EU or play a lesser part in it, although some people here would like us to do so. It is absolutely vital that the case for the European Union should be advanced by Ministers at all times, and that is singularly lacking at the present moment.

I am sorry, was that an intervention or not? The idea that Government Ministers should be under a legal requirement to propagandise for the European Union really is too odd for words. It is absurd. On the one hand we have the noble Lord, Lord Clinton-Davis, saying rather sadly that no one speaks up for the EU so nobody knows how wonderful it is, while only a few moments earlier the noble Lord, Lord Radice, observed how often the noble Lord, Lord Sassoon, has said how wonderful our membership is. The noble Lord, Lord Howell, has frequently reminded us of the manifold benefits of paying £15 billion a year for the EU and running a £20 billion trade deficit. He is quite right to do so.

To make Ministers legally responsible for what is frankly propaganda is absurd. Surely the arguments have been made. People have now grown up and there are all sorts of means of communication. We have the internet, the hated Murdoch press which, of course, is balanced by the BBC and other spokesmen for the EU. I do not see how the Government have any role to play in this whatever. I hope that the Committee rejects the amendment without further debate.

My Lords, perhaps I may add just one dimension to the idea that referendums are neutral so far as the press and broadcasting are concerned. The BBC is not the other side of Murdoch. If you look at your BlackBerry each morning, you can see that what the papers and all the BBC programmes do is report what the Daily Mail says, followed by what the Daily Express says, followed by what the Times says and followed by what the Sun says; and so it goes on.

My noble friend Lord Radice is absolutely right to say that in the populist environment of the red tops, along with a lot of money from the foreign exchange markets and people with a particular interest in the City of London, it is difficult to see how a referendum could be conducted on a level playing field unless we do something. I am reminded of what the then Labour Government did in about 1967, which by common consent was quite useful. We had a counterinflation campaign. There was indeed government information, which could be called propaganda, which explained the economic necessity for doing what the country needed through social partners—a term much derided by people who did not know trading from an elephant. We were able to win the support of the majority of the people of Burton-on-Trent precisely because factual information was put forward.

We can go back to the referendum in 1975, but as a shot across the bows of those people who think that all the referendums will be a doddle because we have the Murdoch press going wild all the time, it is in fact because the Government are running scared of their own Back-Benchers. That is what it is all about.

My Lords, obviously I do not support this amendment. I do not know whether the noble Lord, Lord Radice, was present in the Chamber on 3 May when, as reported at columns 398 to 400, I thought I made a pretty good fist of destroying the usefulness of the single market. I will not repeat those arguments now, but any student of these matters can look up the case against the single market and why his famous 3 million jobs are not worth much against the 4.5 million jobs which they have through making things and exporting them to clients in this country. I also discussed why we can trade with a market of 350 million people through free trade in the same way as 63 other countries around the world do at the moment, now moving towards 75 countries. There is really no advantage to our membership of the European Union which we could not enjoy through free trade and friendly collaboration. I will not go down that obvious and inviting route.

What I will do is produce some statistics and facts to show that the wicked Murdochite and Desmondite et cetera press is more than balanced by the BBC in this country. It is not as the noble Lord, Lord Lea, suggests. In 2005, thanks to continuous monitoring by the organisation Mediawatch-UK, the BBC was forced to hold its first ever independent inquiry into some of its political coverage, in this case its coverage of the European Union and our relationship with it. The whole of that story can be found on the Global Britain website. That independent inquiry, chaired by the noble Lord, Lord Wilson of Dinton, found unequivocally that the BBC’s coverage of our relationship with the European Union was inadequate and biased. The BBC responded in November 2005 and made one clear promise: to explain to the British people how the institutions of the European Union work, how they interact, and their effect on our British way of life.

I trust that the noble Lord, Lord Radice, agrees with me that it is a great pity that the BBC has never fulfilled that promise. It would be helpful to the debate between us, because obviously we are never going to agree, if the BBC did conduct such an unbiased debate and at least told the British people what they are voting for when they vote for the European Parliament. They do not have a clue what the European Parliament is, or where it fits into the European law-making process, that of laws being proposed in secret by the unelected Commission, negotiated in secret in COREPER and passed in secret in the Council. The people do not know that. I think that if the BBC were to explain all that, Euroscepticism in this country would rise. The noble Lord, Lord Radice, and other noble and Europhile Lords presumably think that public opinion would swing in favour of the European Union.

I have one devastating statistic from the BBC’s coverage. Over the past six years, the “Today” programme has devoted only 0.004 per cent of its coverage to any discussion about withdrawal from the European Union. That figure, which has not been bettered anywhere else in the BBC, has to be set against that of the roughly 25 per cent of the British people who voted for a withdrawalist perspective in the last European elections, and roughly 5 per cent at the last general election. We have a British public who are massively more interested and massively more Eurosceptical than the BBC gives them space for.

Whatever else the noble Lord, Lord Radice, and I do not agree on, surely he would agree that all these matters could be laid to rest not only if the BBC did its stuff, as it should do according to its charter and guidelines, but also if we had a genuinely independent cost-benefit analysis of them. I cannot understand why the Government go on refusing to do that. I hope that we can agree, and I hope that the noble Lord, Lord Radice, will accept that the answer to his amendment is not that it should be seen through, but that there should at least be a genuine economic cost-benefit analysis of our EU membership. We can leave aside the constitutional disaster of EU membership; let us just look at the money.

My Lords, I do not believe that the noble Lord, Lord Radice, was suggesting that there should be a legal obligation on Ministers to say nice things about the European Union. What he was trying to do is to get at long last a more balanced perception of the pros and cons of our membership of the European Union, for which I profoundly commend him.

Of course there are many things wrong with the European Union, as there are with the United Nations, with our special relationship with United States and with many other aspects of international institutions, one recently mentioned being NATO. Nobody argues with that; we live in a world of real politics where it is clear that most institutions have substantial flaws. Nobody denies that the same is true of the European Union.

But what I find so sad is that, for 40 years now, this country has gone on missing opportunity after opportunity to lead and profoundly to influence the European Union because of its obsession with constantly trying to run it down, even when it does things which are obviously in the interests of this country, of the European Union itself and of the world. Neither your Lordships nor I have got time to go back at great length, but such an attitude dates from our refusal to have any part in the Coal and Steel Community of 1951, our refusal to take part in the 1957 treaty of Rome, with our dismissal of the enterprise as being unlikely to succeed, our failure to recognise the astonishing achievement in bringing Spain, Portugal and Greece, all of them dictatorships, into a framework of democracy which has been sustained, undoubtedly with some difficulty, right up to the present time—which is an amazing achievement—and our total lack of interest or great concern with the European Union’s extension eastwards into central Europe, the Baltic states and elsewhere, countries for which the European Union, alongside their membership of NATO, were the guarantees of their future democracy and stability. They still have a long way to go, but they have come a very long way since 1989 when the Soviet Union collapsed.

We turn aside time and again from the fact that the European Union is the single greatest giver of aid to developing countries, exceeding any other country on the same scale such as the United States, China or India. We take very little notice of the tremendous efforts made by the European Union to do something serious about emissions, greenhouse gases and the environment. At the most parochial level, when we look at the cleanness of our beaches and at the fact that the Thames river now has salmon all way up to the Pool of London, we see that that is due directly to European Union directives, though nobody is ever prepared to say it very loudly in this country. I could go on—I shall not—but what I find so sad is that we in this country have failed to give a constructive lead to the European Union and spend almost all our time carping about it. We are right to criticise it—yes—but to carp, to sour and to change and distort the facts in the way that happens in the British press is astonishing and not copied in France, Germany, Spain or most other major countries of the European Union. It is a unique aspect of a certain kind of British moaning about the great opportunities that it has decided not to follow up.

The noble Lord, Lord Radice, spoke about the Murdoch press and Associated Newspapers. Those newspapers do not simply produce balanced and constructive criticism of the European Union; they continually emit a series of distorted statements, falsified facts and false scandals which rarely come home. One should compare them with the one newspaper that I think everybody in this House would recognise does not grind very strong party axes and attempts seriously to devote itself to society and the public good, in providing the nearest thing to truth that can be provided—I refer, to your Lordships’ surprise perhaps, to the Financial Times. The indications, the outlines, the descriptions and the analysis in the Financial Times of what is actually going on in Europe are unique in being genuinely international, genuinely global and genuinely objective in a way that most newspapers do not pretend or even try to be. One reads in that newspaper lots of criticisms and worries about the eurozone and so on, but it provides a picture of what is happening that is far better balanced than that which one gets from most of the other major tabloids or even for that matter, sadly, some of the major broadsheets.

Our future as a country lies in working closely with the European Union. It is not just me who says that; it is people such as President Obama and the leaders of China. Our major neighbour nations recognise that the UK’s future as a serious player on the world stage is very closely linked to the extent to which we can co-operate with our neighbours in Europe. That is very strongly the view of the United States; it has been over several presidencies—I do not doubt that we shall hear anything very different when the present President of the United States comes here on Wednesday. Should we not at least give a moment’s pause for some of our closest friends and best allies when they say to the United Kingdom, “Please, think constructively about what you can contribute to the future, and think about how the Commonwealth and Europe together could create a world of greater peace and greater balance”? Just for once, let us move away from the negative position that we in this country so often take and look at the prospects for our children and grandchildren. Let us notice that they inevitably require us to work, not uncritically, but thoughtfully and constructively, with our European neighbours to make the world a somewhat better place.

The amendment refers to the failure of Governments and Ministers to promote the European Union; what we have had is a debate about the pros and cons of the European Union. I could speak for a very long time on that, but I shall not. However, I say to the noble Lord, Lord Radice, that he is wrong in his view that Ministers of all Governments have not promoted the European Union or the European ideal. In fact, we have progressed—if that is the right word—from what was supposed to be a common market to what is now, almost, a new country called Europe. We need to understand that all the way along, ratchet by ratchet, treaty by treaty, Governments have promoted our memberships, first, of the Common Market and now the European Union. They have done so in the belief that things should be done better by a group rather than by individual nations. That is not what the British people think; they believe that Britain should remain a self-governing nation.

The Single European Act transferred huge tranches of power to the European Union. It was followed in 1992 by the Maastricht treaty, which promoted even more powers to the European Union. That process culminated in the latest treaty, the Lisbon treaty. There is virtually no policy area where the European Union is not now involved. It is even involved in taxation and the control of our financial institutions. It takes the lead in foreign affairs and virtually all issues of British policy now have, in part or as a whole, a European Union basis. That is all I want to say for the moment, but I hope that the noble Lord, Lord Radice, will withdraw his amendment, which is ill conceived.

House resumed. Committee to begin again not before 7.01 pm.

Privacy Injunctions

Statement

My Lords, I wish to repeat as a Statement an Answer given to an Urgent Question in the other place by my right honourable and learned friend the Attorney-General. The Statement is as follows.

“I am grateful for the opportunity to respond to my right honourable friend on an issue which I know is of considerable concern in this House as well as to the public and the media. The Government believe that freedom of speech is a cornerstone of our democracy, and that it is of the greatest importance that people should be able to discuss and debate issues as freely and openly as possible. This includes those occasions when freedom of speech is exercised provocatively, as it is supposed to be in a free country. Plainly, however, there are also occasions when an individual is entitled to have their privacy protected. There is a balance to be struck and this is reflected in our existing legal framework. The Government recognise the importance of finding the correct balance between individual rights to privacy on the one hand and rights to freedom of expression and transparency of official information on the other. We also recognise that there are widely differing views on what that balance should be. It is in no one’s interest to rush to judgment on this.

The complexity of the issue and the lack of consensus are some of the reasons why the report of the Master of the Rolls committee on the procedural aspects of super-injunctions and anonymity injunctions published last Friday is to be welcomed, and why we will want to take on board its carefully thought-through recommendations. It reaffirms that open justice is a fundamental constitutional principle, and that exceptions to this are permissible only to the extent that they are strictly necessary in the interests of justice. While such decisions will necessarily be made in each particular case dependent on the facts of that case, it does offer a likelihood of some greater clarity.

The report indicates that when some degree of secrecy is necessary, the facts of the case and the reason for secrecy should be explained, as far as possible, in an openly available judgment. It also emphasises that super-injunctions—where the fact that there is an injunction has to be kept secret as well as the substantive issues—are now being granted for only very short periods where secrecy is necessary to ensure that the whole point of the order is not destroyed. We hope that its analysis and recommendations should help to allay concerns that super-injunctions were being granted far too readily and about their potential open-endedness.

Of course, a range of wider issues has been raised by the events of the past few months and especially the past weekend. We take seriously the need to ensure that we have the correct balance between privacy and freedom of expression. Today the Prime Minister is writing to the chair of both the Liaison and Justice Committees and my right honourable friend the chair of the Culture, Media and Sport Committee recommending that a Joint Committee be established to consider how current arrangements can be improved. Such a committee will be able to use representation of both Houses and the considerable expertise that Select Committees have to examine whether the current arrangements are working and to consider whether we might make any changes that would make things work better.

In the mean time, it is right to emphasise that just as any change to the law is for Parliament, the interpretation of the law is a responsibility placed on the judiciary. Legal mechanisms exist to review individual decisions that may be mistaken. If we believe in the rule of law, it is our duty as parliamentarians to uphold these principles”.

My Lords, that concludes the Statement.

I am grateful to the noble and learned Lord for repeating the Attorney-General’s Statement. I agree with a great deal of it. As far as this side is concerned, we agree that there should be a privacy law. Of course, the privacy law has to respect free speech. It involves striking a balance between an individual's right to privacy and the need for free expression.

That, basically, is the law currently. It requires an independent, neutral figure to strike the balance between freedom of speech and an individual's right to privacy. Nobody else can do that apart from the judges, and the judges who have been doing that have been doing it in accordance with the law, not through some invented new law that they are creating.

I completely understand and respect that individual Members of Parliament are entitled to wreck privacy injunctions because they think that they know better, but our system has worked well over the years, with Parliament dealing with laws and the judges dealing with individual cases. I have no idea of the detailed balance involved in relation to the Fred Goodwin case or the case that has been brought to public attention today. I do know that I know a lot less than the judges involved and that they were applying the law. I have no idea, for example, of the extent to which the families of the plaintiffs in those cases were thought to be affected by the terms of the injunction.

I welcome the creation of the Joint Committee. The matter should be looked at. We are getting close to a Rubicon in relation to this. The law is as it is. It is unlikely to be changed substantially because of the European Convention on Human Rights. There should not be this excited state about injunctions that have been granted. Instead, people, including parliamentarians, should comply with their spirit. There is something quite ugly about unpopular people being named in Parliament despite the fact that a judge has thought that they are entitled to privacy.

I have a few questions for the Advocate-General. First, do the Government agree that there needs to be a law on privacy? Secondly, do they agree that such a law must comply with the European Convention on Human Rights? Thirdly, does the Advocate-General agree that the judges are currently simply applying the law as determined by Parliament through the Human Rights Act 1998? Fourthly, what advice does the Advocate-General give to Members of Parliament—Peers or MPs—in relation to wrecking injunctions that have been made by the judges? Would his advice be the same as mine that perhaps it would be better to leave the courts to decide those issues rather than deciding for oneself whether a person should be entitled to what is currently his or her legal right?

My Lords, I thank the noble and learned Lord for his response and for his general welcome both to the Statement of my right honourable and learned friend the Attorney-General and to the establishment of a Joint Committee which will obviously look at these matters in much greater detail.

My right honourable friend the Secretary of State for Culture, Media and Sport indicated last week that a privacy law would not be ruled out. However, having set up a Joint Committee, that is very much the sort of issue that we would expect it to consider. The noble and learned Lord is right to say that the European Convention on Human Rights will influence and be material to the shaping of any future law should there be such a change. It is important to recognise that that was not overlooked when the 1998 Act was going through Parliament. As he will remember, having been a law officer at the time, there was quite a focus on the interplay between Articles 8 and 10. Indeed, Section 12 of the Human Rights Act was introduced to encourage and enjoin the judiciary, when considering such matters, to have proper regard to the importance of freedom of expression. Each set of circumstances and each case will be different, but clearly one can only expect and believe that the judges have been carrying out their duties in accordance with their judicial oath. As I indicated in the final paragraph of the Statement, the interpretation of the law is a responsibility placed on the judiciary and we would expect parliamentarians to uphold these principles.

Sub judice conventions exist in both Houses of Parliament and I am sure that anyone who seeks to raise such issues will take care in doing so. Perhaps it would be best to refer to the Joint Committee on Parliamentary Privilege, which the Master of the Rolls also quotes in his report. This Joint Committee, reporting in 1999, said that the sub judice rules were needed,

“to strike a balance between two sets of principles. On the one hand, the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions. On the other hand, Parliament has a constitutional right to discuss any matter it pleases”.

In his press conference last Friday, the Lord Chief Justice indicated that he entirely agreed with that, and I do as well. We would perhaps all do well to reflect on those words from a previous Joint Committee on Parliamentary Privilege.

My Lords, I very much welcome this Statement. I also welcome what the noble and learned Lord, Lord Falconer of Thoroton, said in response. However, is it clear whether the Joint Committee will have a remit to examine the practice of Parliament in relation to these matters? Parliament has long had a sub judice rule as a way of protecting the work which Parliament has assigned to the courts from undue interference by Parliament itself in exercising its undoubted right to discuss anything. It is extremely important that that aspect of parliamentary practice should be examined in the light of the present situation. As the quotation from the report of the Master of the Rolls shows, the sub judice rule was very much in the forefront.

This matter goes somewhat beyond the sub judice rule in this sense. The sub judice rule was put in place to protect the decisions which the judges had to make from prior discussion in Parliament, which might prejudice or pre-empt that decision, whereas the feature that we are dealing with at the moment seems to be an attempt to negate the effect of a judgment by using parliamentary privilege for that purpose. The situation is that a judge has decided that the person in question has a legal right to privacy on the matter. The question is whether it is appropriate for parliamentary privilege to be used to damage the effectiveness of that right and, if so, under what conditions, and subject to what rules. This matter requires quite detailed consideration. I do not believe for a minute that the judges were seeking to gag Parliament in any sense. They were seeking to ensure that their position in relation to Parliament was understood.

My Lords, my noble and learned friend raises some important—indeed, fundamental—points. I do not think that anyone is suggesting that the importance of Article 9 is in any way being challenged, but he makes some important observations. As for the terms of reference of the Joint Committee which is to be established, it has been indicated that the Justice Secretary and the Culture Secretary are to liaise with the chairs of the two committees in the other place. Obviously they will bear in mind the importance of this issue in Parliament, but it is also important to point out that the Government are already committed to bringing forward a draft Bill on parliamentary privilege. Given that, as I think my noble and learned friend indicated, there are issues that go much wider than these particular cases, this may well provide an opportunity for those important issues to be gone into in much greater detail—indeed, in the detail which they undoubtedly deserve.

My Lords, I, too, greatly welcome the Statement and the report on which it is based. In recent years, one problem has been that a belief has got about that judges have a wide discretion on whether to grant a super-injunction. The report makes it absolutely clear, in paragraph 1.33, as recent cases had already made it clear, that there is no such discretion. The principle of open justice prevails unless it is absolutely and strictly necessary to depart from that principle in order to do justice in a particular case. That has long been the position and it is very good that it should have been reasserted in this Statement and report. They are obliged to act in accordance with the law as stated; they have no discretion.

The noble and learned Lord is right that they must apply the law as it is. It is important, as the report indicates, that openness is a cornerstone of our democracy and with our judicial proceedings and system. If that is departed from, it can be only in the most exceptional circumstances. The report by the Master of the Rolls and his committee also raises some issues of how that commitment to openness might well be enhanced. Clearly, these matters will, in part, form the discussion of the Joint Committee that is to be set up.

I put forward a Bill some 20 years ago on the freedom and responsibility of the press. I think that the Minister will remember the debate. At this stage, I strongly support the Joint Committee but it is a mistake to think that the privacy issue is about just these sexual cases that come up. An awful lot of cases referred then, and do now, to ordinary folk who get caught up in tragic incidents in their lives. Often, it is a death in the family or things of that nature. That is one factor that privacy needs to address. It is not about just the big sexual cases that the press like to report for money; they also arise in those personal life tragedies. I am in favour of the courts deciding the balance between Articles 8 and 10 of the convention, but we will have to look at this in the wider context not just of sexual issues but of the invasion of privacy of people who have suffered tragedies.

I certainly hear what the noble Lord says and, as he has indicated, the terms of reference are still to be agreed. Without any commitment on whether it might be included, I will certainly draw his comments and the Bill that he previously introduced to the attention of my right honourable friends. It also might be fair to point out that for many years now—long before the incorporation of the European Convention on Human Rights into our domestic legislation—there have been quite strict rules in place on the naming of children in court proceedings. It is fair to say that, by and large, those have very much been observed.

We on these Benches welcome the report, which recognises that where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice. We also welcome the provision of notice to the press of an application of this type and the requirement of an openly available judgment. Does my learned friend—my noble friend—

Does my noble and learned friend accept that Article 10 of the European Convention on Human Rights, which provides for the right to freedom of expression, is qualified? It is that the exercise of that freedom,

“carries with it duties and responsibilities”,

and,

“may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.

It specifically refers to,

“the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

Would he agree with me that judicial authority must be maintained? As the noble and learned Lord, Lord Falconer, said, the court sees the evidence and comes to a balanced judgment, and any attempt to interfere with that, even by the use of parliamentary privilege, simply because a politician cannot agree with the judgment when he does not know the facts, is to be deplored?

My Lords, my noble friend is right to quote at length Article 10. As I said earlier to the noble and learned Lord, Lord Falconer of Thoroton, these issues and the tensions between Articles 8 and 10 were considered at considerable length during the passage of the Human Rights Bill and express provision was made in Section 12 of that Act to give further guidance to the judiciary to establish that balance.

The other point that I would make, in substantially agreeing with my noble friend, is that in my experience, in politics and law, unless you have been involved in the case you usually do not know all the facts of the case. Very often that is in terms of sentencing; it is only the judge and the people involved in the case who know all the facts and on the basis of those facts come to the judgment that they make. That is a duty and that is what they do.

Would the Minister underline for the benefit of the Joint Committee that the Law Society and the Bar Council have very useful views to communicate? They are able through their membership to speak authoritatively about this matter. Many of the lawyers who are skilled in this field have a useful contribution to make.

I would certainly agree with the noble Lord. No doubt when the Joint Committee comes to take evidence, the professional bodies, the Law Society and Bar Council, will be bodies that it will want to seek evidence from—as well, no doubt, as from individuals who have much experience to bring to bear on these important matters.

Does the Minister accept that the Bill of Rights and the Parliamentary Papers Act 1840 were passed in ages very different from our own and dealt with circumstances very different from those now relevant? Does he accept that the effect of those Acts very often is to make it possible for a statement to be made in Parliament that would be utterly contumelious of a decision of the courts were it not for the particular privilege thereby conferred? Will he encourage those who sit on the Joint Committee to be bold and imaginative in these circumstances and to see to it that the law of the land is not flouted, save in those rare, almost unique, circumstances where parliamentary privilege should be allowed to cloak such an action?

My Lords, as I have already made clear, it is almost self-evident that the Bill of Rights 1689 and the Parliamentary Papers Act 1840 were promulgated in times very different from today. Notwithstanding that, there are clearly some important principles enshrined in them. Indeed, on numerous occasions, even in recent times, we in this House have sought to emphasise their importance and how much we cherish them. In terms of the Joint Committee and in the opportunity to look much more broadly at parliamentary privilege, that will be an opportunity to consider in detail some of these issues. The Master of the Rolls’ report published last week has a chapter devoted to parliamentary privilege and identifies some of the tensions that are there. All of those elected to the other House and Members of this House take parliamentary privilege very seriously, and if we wish to say anything on matters that are sub judice it should be done only with the greatest of forethought.

My Lords, I, too, welcome the establishment of the Joint Committee. What I really want to ask is whether the new media will be part of the remit, and whether there are ways in which one can restrain publication there. I have a great reluctance in saying that I do not think it is possible; I think we have crossed a Rubicon, and that new technology now means that it is now very hard to restrain publication of matters that invade privacy. Although our courts seek to influence courts in California to have disclosure of names by twitter, the culture in the United States is very different and it is very unlikely that there will be disclosure by courts there. In my experience, even getting them to disclose matters relating to national security issues is difficult enough. The American courts are very protective of freedom of the press. Will the remit of the Joint Committee look at the new media—twitter and the like?

My Lords, the noble Baroness raises an obvious but very important issue on the new media, whose relevance has been very obvious to these events. I have to confess that I do not tweet. I may have been one of the last people in the kingdom to find out the subject matter of some of the tweets over the weekend. It would be an issue that the Joint Committee would want to look at, because it is very pertinent to the kind of issues that we are talking about. But just because it makes it far more difficult to police and enforce, that does not make it right to breech an express order of the court. Obviously, if there are means to identify those who did it, the appropriate procedures should be followed.

Does my noble and learned friend accept that in a settled society, the strength of its laws derives from the support of the majority the population? The black code or the death sentence were abolished not only because judges and Parliament abolished them but because the public ceased to support them. Is there not a danger here that we are on the edge, whatever the legal minutiae, of developing laws that the public are not in sympathy with?

That is the challenge to all parliamentarians—to reflect the views of the people. As my right honourable friend the Attorney-General indicated in his Statement, which I read, there are very clearly tensions in the balance between privacy and freedom of expression, and no doubt these will be issues for the Joint Committee to consider, bearing in mind public views on this. As he also said, no matter where that judgment comes down, a number of people will still think that it has come down in the wrong place. But as parliamentarians we have to be alert and sensitive to all these issues.

May I be allowed very briefly to remind the House of one respect in which the events of last weekend were duplicated some 30 years ago in an attempt, in which I was peripherally involved, to get an injunction on the book by my namesake, Peter Wright, called Spycatcher? An injunction was obtained, but it was overlooked that it did not apply to Scotland, and by the time an interdict had been sought there Spycatcher had been widely described in the Glasgow Herald. Some 30,000 copies were already on the streets.

My Lords, I strongly support the suggestion made by the noble and learned Lord, Lord Mackay, that the proposed Joint Committee should also examine the parallel dilemma—and it is a very difficult one—of the balance to be struck between parliamentary privilege and the need for Parliament to respect the separation of powers and not to undermine the administration of justice. Surely if the Government propose to bring forward a Bill on parliamentary privilege, it is particularly important that this Joint Committee, which is examining such a closely related matter, should have an opportunity to consider that as well, and the Government should have an opportunity to hear the conclusions of that committee before it frames its proposed legislation.

As I indicated, it is a draft Bill, so there will be opportunity to consider issues on parliamentary privilege that go wider than the important issues raised here. The terms of reference of the Joint Committee are not yet established, and it would be wrong of me to pre-empt that, but I will certainly draw to the attention of my right honourable friends the comments made in the Chamber today on the importance of parliamentary privilege as it pertains to this particular issue, and it may well be that in these circumstances the committee may want to reflect on that and have its own input into any future draft Bill.

In his opening remarks, my noble and learned friend referred to consultation with the other place about the Joint Committee. Will he confirm that there will be consultation with this place, the other part of Parliament?

I echo the remarks of the noble Baroness, Lady Kennedy, about the relevance of what is going on on the internet. Cyberspace, which is outside the jurisdiction, is very close to the jurisdiction and most citizens can gain access to it. It has a huge bearing on the law, bearing in mind that this has arisen in the past 20 or so years.

My Lords, I endorse those last comments about the importance of the internet and electronic media. That issue will have to be considered. Regarding the establishment of the committee, the indication was that the Justice Secretary and the Culture Secretary would be liaising with the chairs of the Liaison Committee and the Culture, Media and Sport Committee. As Minister of State at the Ministry of Justice, my noble friend Lord McNally, is present, and I am sure that that will ensure that the views of the terms of reference reflected in our exchanges here will be fed into that. I think that it was clear that the committee is intended to use the representation of both Houses and the expertise that exists in both Houses.

My Lords, I welcome the report in the interests of open justice. The issue that I raised last Thursday was part of a longstanding commitment by my noble friend Lord Oakeshott to ensure that the Financial Services Authority publishes a full report on the reasons for the collapse of the Royal Bank of Scotland. I believe that the FSA has now agreed to include the matter in its inquiry. I therefore ask my noble friend how the courts are going to ensure that public interest is protected and considered when injunctions are being requested. How will statutory bodies such as the Financial Services Authority be able to investigate when corporate governance procedures may be being breached but the information about that is restricted?

My Lords, I am sure that my noble friend would agree that it would not be proper for me to comment on any one particular case. If there is an issue of more general importance, I am sure that it will be possible for these concerns to be fed into the work of the Joint Committee.

Sitting suspended.

European Union Bill

Committee (7th Day) (Continued)

Debate on Amendment 55B resumed.

My Lords, I apologise to the Deputy Chairman for being rather hasty in beginning. That was partly because of my anxiety to be brief in this important debate. I congratulate the noble Lord, Lord Radice, on proposing this new clause in his amendment. It is very important. I detect already that it has gone down well in the new atmosphere of the House. Even if the Government persist with the Bill in most of its configuration, there is a spirit and desire also to promote our membership of the European Union. I hope so, anyway.

The noble Lord, Lord Radice, has a distinguished and noble Italian ancestry. As a keen linguist myself, I am prepared to forgive him; he told me once that he did not speak Italian. However, he is an internationalist in every other sense. I had the pleasure of preceding the noble Lord, Lord Radice—I hope he had pleasure in succeeding me—as chairman of the European Movement. I was chair in the first half of the 1990s; it was the noble Lord, Lord Radice, afterwards. Even then when we spoke about these matters we often lamented the extent to which Governments of all colours—the two main parties, anyway—did not defend and promote our membership of the European Community enough. We saw that only in the days of the Edward Heath Government. To her credit, it was also partly true in the period of the Thatcher Government, particularly with the creation of the single market, but by and large it was not.

I compared this to the previous Spanish general election—there is the possibility that another will come along soon. The two great parties in that country fought a tenacious and bitter political battle on all aspects of Spanish domestic and internal policies, but not once did anybody invoke Europe as an anti-cause to win domestic votes. It is a pity that our internal politics has been bedevilled by that phenomenon, as well as by Governments not explaining a mechanism and structure that is in many ways more complicated than just a defence alliance such as NATO, although that is complicated enough. Not enough has been given over the years to doing that. We need to do that even more now because of the way in which various press organs in this country have denigrated Europe excessively.

Therefore, the words of the noble Lord, Lord Radice, should be heeded by the Government to promote a campaign. Indeed, they ought to promote a campaign to defend and explain Europe properly in the objective and neutral sense of the word. It can be done, even when there are referenda to be fought in the future. I hope there will be no referenda, but it is in those terms that one asks the Government to respond positively to this important amendment tonight.

My Lords, I welcome this amendment from my noble friend Lord Radice, whose expertise on Europe is well known in the House. Several of the speeches that have been made by Members of the Committee have reflected their own extensive knowledge of Europe and their understandable disappointment that we have been so churlish in the way that we have talked about Europe and the European project over the years. Like the noble Baroness, Lady Williams, I take the point that there are things to criticise. However, that is scarcely a reason for the trajectory on which we have embarked.

In addressing the amendment specifically, it is clear from the beginning of Clause 2 that a referendum would be launched following matters being laid before Parliament and fully debated, a decision being taken by Parliament and a treaty approved by an Act of Parliament. Clause 3 gives essentially the same sequence: Parliament takes a fundamental view, looks at it and decides that a referendum should be held because of the conditions to hold one as set out in the Act. Under Clause 6, a Minister of the Crown must start with a draft decision approved by an Act of Parliament. The referendum condition is then triggered. In all the circumstances in which a referendum condition is triggered—were one ever to be triggered—the reality is that Parliament will have reached a conclusion. Obviously, it will not have done so in secret. It will be a decision that is well known to the public as a whole. Parliament will have decided that the point at which a referendum is required has been reached.

In those circumstances it would be inconceivable that no argument would be advanced to the people who were going to vote in the referendum to account for the decisions that Parliament had taken. It would be an extraordinary set of circumstances in which that decision did not have the visible consent of the Government. If the Government had put a proposition of that kind to Parliament and it had been defeated, it would be a significant blow to any Government. It must be the case that the arguments that had been held in that forum—or forums, taking this House into account as well—would have come to a positive outcome.

I turn to Clause 13. The Electoral Commission,

“must take whatever steps they think appropriate to promote public awareness of the referendum and how to vote in it”.

In other words, it must make sure that people know the referendum is taking place and what they need to do to take part in it. Curiously, under paragraph (b), the Electoral Commission,

“may take whatever steps they think appropriate to promote public awareness of the subject-matter of the referendum”.

In short, it must make sure that everybody knows about the referendum but it may take steps to make sure that people know what the referendum is about. I make this point because if, in those circumstances, the Government or a Minister did not take steps to deal with the policy issues under discussion, it would be the most curious discussion that there had ever been before a referendum, especially if the Electoral Commission itself did not get into the theatre of argument about the subject matter. It seems to me that it is less likely to do that than the politicians who are involved in it.

There is, therefore, a huge amount of good common sense in the amendment of my noble friend Lord Radice. If you look at the specific text of the amendment, Ministers of the Crown are asked to,

“have regard to the desirability”.

This is not a monumental hurdle to have to cross. Ministers are expected to put the argument in a way that at least conveys why Parliament has taken the decisions that it has taken, and to do so in a way that is positive. Does that disbar anybody from saying, “There are issues here. We can see the following negatives”? No, of course it does not. I have no doubt that in any referendum debate people will say what they think the downside of the argument is. However, the amendment would ensure that the upside of the argument is also presented, even in a climate where a large part of the media of this country may not be sympathetic. That is probably the only route to achieving any balance in the discussion that will take place in advance of a referendum. Therefore, I welcome this amendment. One can look back and see how it links with the other clauses, and particularly how it deals with the rather conditional “may take” provision in Clause 13. In my view it would ensure that the argument was well made.

Having made that rather narrow point about the purpose of this amendment and how it would operate against the background of a parliamentary decision, I assert that in a generally extremely sceptical climate it can do no harm whatever to argue the case for the benefits of the European Union in a positive way. No doubt some Members of your Lordships' House do not believe that there are any positive benefits, or that they are so marginal that they should not be referred to because it is a waste of breath. However, a good many more of us believe that there is a very good and strong case to be made in favour of the European Union, and that it is sensible that it is made, as this amendment would ensure.

My Lords, I was going to begin my comments by congratulating the noble Lord, Lord Radice, on the very sensible and balanced way in which he put his case, although his peroration slightly took off the ground towards the end of his remarks, but perhaps that is the nature of perorations. However, as the debate has gone on, I have begun to share the sentiment expressed by my noble friend Lady Williams that the situation is sad in a sense, although I suspect that I disagree somewhat with my noble friend on how the EU should develop in the 21st century and be made fit for purpose, where the great trends should go and how this country should reinforce them. Nevertheless, I agree with her that all the old polarities of debate have prevailed for far too long. Over the past decade or so, one has needed to see emerge a new and much more positive British presentation and role than we have seen. That is a matter of regret.

The Government have no difficulty in supporting the main sentiment behind this amendment. We are members of the European Union. If we are members of organisations such as the massive and amazing European Union, it would be absurd to do anything short of making the very creative best we could of that. Therefore, the noble Lord, Lord Radice, makes an important point about the need for the Government to be a more vocal and effective advocate of the European Union of which we are members, given the way that the world is shaping. This applies also to other great bodies in the world of which we are members. I am sure he will join me in saying that we need to do better than the efforts of previous Administrations in our approach to this vital task. Indeed, the noble Lord said as much. We should do so by explaining more clearly how good and positive EU membership is part of our overall adjustment to a totally changed world landscape in which major markets are growing up outside Europe and in which Europe and the European Union, including this nation, are going to have to compete with increasing vigour. We need to ensure that the European Union is understood to be, and is seen as, a force for good. We want people to understand that the European Union, and our membership of it, has been, and can be, a force for good. We need to improve the effectiveness—this is slightly off the brief—of the EU’s own voice. Many of us feel that sometimes in recent years that voice has not been quite so effective and focused as it should have been. We seek to present positively to the British people the ben