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European Union Bill

Volume 728: debated on Thursday 23 June 2011

Third Reading

Clause 18 : Status of EU law dependent on continuing statutory basis


Moved By Lord Lea of Crondall

Clause 18, page 13, line 9, at end insert—

“(2) This section does not affect the United Kingdom’s commitments set out in—

(a) the European Communities (Amendment) Act 1986 giving effect to the Single European Act,

(b) the European Communities (Amendment) Act 1993 giving effect to the Maastricht Treaty on European Union,

(c) the European Communities (Amendment) Act 1998 giving effect to the Amsterdam Treaty,

(d) the European Communities (Amendment) Act 2002 giving effect to the Nice Treaty, and

(e) the European Union (Amendment) Act 2008 giving effect to the Treaty of Lisbon.

(3) This section does not affect—

(a) the European Communities (Greek Accession) Act 1979,

(b) the European Communities (Spanish and Portuguese Accession) Act 1985,

(c) the European Union (Accessions) Act 1994,

(d) the European Union (Accessions) Act 2003, and

(e) the European Union (Accessions) Act 2006.”

‘I will not detain the House for more than a few minutes. This amendment is an addition to the words now incorporated in the revised Bill at the end of revised Clause 18—those being the words in the amendment moved last week by the noble and learned Lord, Lord Mackay of Clashfern. My amendment, which in the words of the Companion is clarificatory, states that all the Acts of Parliament which flow from the famous or infamous EU treaties following on from Rome—Maastricht, Lisbon, et cetera—should set out in a straightforward way the list of the United Kingdom Acts which are the basis on which Parliament here in Westminster has enacted laws to give effect to EU legislation in this country.

One of the reasons for believing that the Government’s intention is to pre-empt any rethink is the feed from the office of the Foreign Secretary, the right honourable William Hague, to the Financial Times last week, which appears to throw down the gauntlet that the Lords should be put in their place and get back in their box. That is surely not the height of courtesy when we have not yet completed Third Reading of the Bill.

The noble and learned Lord, Lord Mackay of Clashfern, who cannot be here today because he has to preside at an awards ceremony in Cambridge, but to whom I spoke yesterday, mentioned at Report that a list approach could additionally be considered. On another aspect, he indicated at col. 804 of Hansard that he could indeed visualise clarificatory amendments at Third Reading. I could not speak to the noble Lord, Lord Kerr of Kinlochard, because he is in China.

So far as directly applicable law is concerned—where one of the confusions arises—as adumbrated by the noble and learned Lord, Lord Wallace of Tankerness, it would be a brave man or woman who would try to encompass that in one declaratory yet legally watertight sentence, and it is now becoming increasingly clear that it does not work. The problem is that Ministers wish to make a political point and officials are trying to make it work technically. Trying to kill two birds with one stone is rarely a good idea. There is, indeed, no simple political point that can be made about UK law which can define this in a few words, for the reasons which the exchange on 15 June between the noble and learned Lords, Lord Mackay of Clashfern and Lord Wallace of Tankerness, amply demonstrated. Assuming that I am correct about the Government’s intentions, it would be ludicrous to go into ping-pong in blinkers—ultimately, no doubt, the Lords would submit to the will of the Commons—when the resulting assertion in the Act would still be clearly erroneous, and in effect admitted to be such by Ministers.

On the Government’s contention so far as directly applicable law is concerned, we have the position as set out on page 2 of the Explanatory Memorandum that all we are looking for is a declaratory sentence. Therefore, I put this amendment forward for consideration. I do not see why it should not be accepted on all sides of the House. I will not press it to a Division but I hope that the issues I have raised will be ventilated this morning and that the amendment will in due course be accepted in the spirit in which I have put it forward. I beg to move.

My Lords, I am grateful to the noble Lord, Lord Lea of Crondall, for tabling the amendment. It seeks to confirm in statute that Clause 18 does not alter the rights and obligations that the UK has assumed and given effect to in UK law since it became a member state. In particular, the amendment provides that the clause would not affect any existing commitments flowing from subsequent treaty changes and accession treaties. That is the purpose of the noble Lord’s amendment.

As I say, I am grateful to him because it allows me the opportunity, once again, to make crystal clear that this Government strongly believe that it is absolutely essential that we continue to respect the rights and obligations that we have as a member state of the European Union under the treaties to which we have committed ourselves. This is because we recognise the benefits of EU membership. This Bill does not do anything to alter our current active engagement within the existing powers and competences of the EU. I do not want to go into too much repetition of our extensive and very valuable discussions in Committee. As I said then, the coalition Government’s Programme for Government spelt out that the United Kingdom will be,

“a positive participant in the European Union”.

I believe that this Government have, since last May, amply demonstrated an active and activist approach to EU matters. This has been exemplified by this country’s leadership in the European Union’s response, and indeed the global response, to recent events in north Africa and the Middle East, and the continuing turbulence there.

The pragmatic approach that this Government have adopted in their wider EU policy brings home the pragmatism that has been shown at times in your Lordships’ House during the consideration of this legislation. We have come a long way since the Bill came from another place. We have undertaken detailed and considered scrutiny of the Bill and its provisions, as we should and as is our proper role here.

I want to pause briefly during these remarks to thank warmly colleagues on all sides of your Lordships’ House who have taken part in these debates. Our differences have been there, of course, but those aside, your Lordships’ House has engaged in its proper role of detailed scrutiny of what is undeniably a very complex Bill. Members have done so with diligence, and for that I am grateful.

My Lords, have we moved on to debate the Question that this Bill do now pass, because I do not think that we have yet disposed of the amendment?

No, we have not. We are discussing the amendment. I hope that that is clear to the noble Lord.

The Bill represents a major step forward in the engagement of Parliament over the future direction of the EU. I know that some noble Lords have argued that giving the British people a greater say over decisions could come at the expense of Parliament. However, the more that one examines that proposition, the more I believe that not to be the case. On the contrary, we are seeking to build an enduring framework on which both Parliament and the people of the country will be given a greater say over the key decisions of the Executive in the European Union. That must be healthy. We are seeking to reflect—

I am grateful to the Minister for giving way, because it allows me to make an intervention that otherwise I would have tried to make in the form of a speech. He has claimed that there is general acceptance of the provisions for a referendum lock on key constitutional issues. Indeed, the noble Baroness, Lady Williams, with whom I normally agree 100 per cent on European issues, said that the Government had persuaded us all of this. However, I do not agree with the use of referendums. I tend to share the view of the noble Lords, Lord Jopling, Lord Deben and Lord Brittan, and others that we need to be very careful if we are going towards this plebiscitary form of democracy, rather than a representative one. I should, therefore, at least like to place on record my own concern about referendum locks in general.

That is a very clear view from the noble Baroness, who, as a former Minister for Europe, knows about these things. However, I have to say that, in the age in which we live, that is a heroic position. We are now living in the information age of instant communication. Referenda are being used in every country, not at the expense of parliamentary debate and sensible diligence by elected representatives but as a further extension of the consolidation of the people’s trust in the processes of government. They are being used everywhere.

I heard the very eloquent views of the noble Lord, Lord Deben, who is not in his place, that he is against all—

I am grateful to my noble friend. I simply want to make it clear that my support for referenda is limited to major amendments to treaties. It does not apply, as the Minister knows very well, to the list of issues set out in the schedule to the Bill.

That is a perfectly fair and sensible intervention by my noble friend. We would, of course, expect nothing else. It reinforces my point that to be either at the one pole of being against all referenda and plebiscites or at the other of saying let us have a referendum every five minutes is absurd. In between lies the possibility, in a modern parliamentary democracy, of consultation with the people through referenda on major issues where sovereignty is transferred, where competencies are transferred or where powers are surrendered by this Parliament through treaty to a higher Parliament.

My noble friend has intervened to say that only in very limited circumstances does she agree. The noble Baroness, Lady Quin, has said that she does not agree at all. The noble Lord, Lord Deben, says that he does not agree. But somewhere in between is the sensible, practical way forward. We are seeking to reflect in the Bill the unavoidable reality that, in the information age, parliamentary-based democracy has widened, is widening and is bound to widen to embrace consultation on key issues. We can argue and have argued for many weeks on how far popular consultation should be involved, but the basic principle is the reality with which Governments are now developing their methods of government and holding authority almost throughout the whole democratic world.

The noble Lord has talked about the positive contribution that this Government have made as far as the EU is concerned. However, is that not negated by the unwise alliance that the Government have formed with rather dubious characters, and the withdrawal from a more central grouping?

With great respect for the noble Lord, whose experience in European affairs is enormous, that is widening the debate vastly from discussing the amendment before us at Third Reading. The noble Lord is raising all sorts of political issues, on which I am very happy to engage, but this would not be the appropriate process and your Lordships would rightly criticise me for going into those issues. I am pleased that we have seen an acceptance of the principle that there should be a referendum on future treaty changes which transfer power and competence from the UK to the EU. That is a step forward, although I repeat that I fully respect my noble friend’s intervention to the effect that she does not accept that for a vast range of activities.

The noble Lord has been talking at great length about referenda and justifying the use of referenda in the 56 cases listed in this Bill. What is the rationale for going for referenda in all these 56 cases, some on very esoteric grounds, and not having a referendum on the very substantial and dramatic reform of our legislature as proposed by the Government?

We have debated this at length. I have enjoyed some of the noble Lord’s interventions—not all of them—and this one is based on a total fallacy and misunderstanding of the Bill which I have tried to disabuse him of. Clearly I have not succeeded. There is no question of having referenda on 56 different items. As we have debated at enormous length, the items included in Schedule 1 and Clause 6 all relate to a handful of very big, so-called red line issues which the people of this country do not want to be dealt with other than through popular consultation. That is the reality. The 56 story is a wonderful myth. It should be utterly dismissed and I hope that we do not hear anything more about it.

Perhaps I may return to the amendment. Clause 18 would not alter the rights and obligations of the UK by virtue of our membership with the European Union.

I apologise for intervening and shall be very brief. First, I genuinely thank my noble friends Lord Howell and Lord Wallace for being helpful, whenever they could be, in responding to many of the points made at previous stages. However, accepting that a transfer of powers of sovereignty can be used as a technical description of our membership of the European Union, is it not better psychologically for the public to have an expression which represents the reality that, by apparently agreeing to things in the European Council, we increase not only our own national sovereignty but the collective sovereignty of the whole Union? That also applies to our membership of NATO, the UN and other international bodies.

First, I thank my noble friend for those words of thanks—I was going to say “condolence”—for the efforts that we are putting into explaining the Bill. He makes an extremely valuable point: where Britain’s national interests are to be promoted by further involvement under treaties or otherwise in international institutions, that is an important matter on which the Government should certainly seek support through popular consent. The argument that we cannot make progress in any of these areas of international and multinational organisations because the Government somehow fear that the people will not agree is very weak and defeatist. On the contrary, if we are to pursue the national interest in a robust way, I think that the present Government and future Governments will have no fears at all about persuading the people to give popular support and consent to the steps forward.

I thank my noble friend for giving way. Does he agree that over the past 35 years or so member state Parliaments in other member states have been more heavily involved than the United Kingdom, and the Bill offers a way for the member state Parliament in Westminster to get far more closely attuned—providing that we can work more closely with the British people—to the will of the people on further transfers of sovereignty? Does he not also agree that this has been a profoundly important debate because it has widened the discussion from the very narrow perspectives of Brussels to the Government and back again? It has already brought Parliament in far more fully and, from that, we will be able to have occasional referenda, which will bring the British public much more into the picture.

I totally agree with my noble friend. I believe that the Bill is part of a jigsaw of processes to reinforce the relationship between the general public and the entire European Union project in a thoroughly positive way. I hope that I have not sounded too complaining during the passage of the Bill but I hoped for massive support, which I do not think was always forthcoming from your Lordships’ offices, for those who want to see the European Union project greatly reinforced. Let us face it—at the moment, it is confronting some very serious challenges. This is the part of the way forward, although not the only way forward. My noble friend greatly reinforces that central point.

I return to the noble Lord, Lord Lea, who is owed a detailed comment on his excellent amendment. I emphasise once again that Clause 18 does not in any way seek to vary the rights and obligations under EU law to which the UK has given effect in its domestic legal order, principally through the Acts referred to in the amendment. It merely confirms that, for directly effective and directly applicable EU law to have effect in the UK legal order, it must be underpinned by UK statute—an issue that of course we discussed at great length on Report. The House of Lords Constitution Committee, in its very valuable report that has been referred to many times, recognised that the intent of the clauses was to do no more than reflect existing law. Clause 18 does not in any way repeal or amend any existing legislation that the UK has adopted to give effect in our law to commitments assumed under past treaty changes. I hope that the noble Lord, Lord Lea, will accept that that is the reality and the basic underpinning ground fact that lies beneath the reasoning for Clause 18 being in the Bill.

Finally, I will touch on the concern that Clause 18 will somehow weaken or dilute our continued support for further enlargement of the European Union. The Government believe that EU enlargement has helped to create stability, security and prosperity in EU-neighbouring countries, in part by spreading and encouraging a firm foundation for democracy, the rule of law and shared values. The Government, like their predecessors, believe that the prospect of European Union membership is the strongest incentive for aspirant countries to implement challenging reforms. In addition, the expansion of the internal market encourages trade between new and old member states, benefiting the whole of the European Union and preparing it for a very challenging future. I hope that I have provided the noble Lord, Lord Lea, with sufficient reassurance on this important point that he rightly raised in your Lordships' House, and welcome the fact that he has already stated that he intends to withdraw the amendment.

I will not make any comments on the amendment of my noble friend Lord Lea, which the Minister dealt with very clearly. We on this side of the House greatly appreciate the courtesy with which the Minister has dealt with the many points that we raised in the long debate on the Bill—as has the noble Lord, Lord Wallace of Saltaire. However, what I failed to hear in the Minister's summing-up was an acknowledgement that the Bill that leaves this House is very different from the Bill that arrived, and that on fundamental points the House has amended it in a way that we hope the other place will take due notice of. We have reduced the compulsory requirement for referenda on 56 issues—I know that this figure is disputed by the Government—to three; we have clarified the sovereignty clause in a way that satisfies former Lord Chancellors; we have introduced a 40 per cent turnout threshold for a referendum to be binding; and we have passed a sunset clause that will require a future Parliament by positive resolution to revive the Bill. These are very significant changes and I hope that on the Government’s side there is an acknowledgement that they must think seriously about the views that were expressed on all sides of the House in a very broad consensus that the Bill is badly flawed.

I did not intervene earlier because I got the impression that this was not only Third Reading but probably fourth, fifth and sixth reading, given the many points that were made that did not appear to relate in any way to Clause 18. I shall be extremely brief in saying that it is correct that the Bill that now goes to the House of Commons is different because we have fully considered it and made changes, and we look forward to a serious and positive response from the other House.

I will make only one further point. If the Bill becomes an Act, I share the view of the Government on one important point; I hope that it will seriously improve the possibility of a better connection between the people and the European Union. That is the primary intention of the Bill and, however much it has changed, it is still very important that we should seek to achieve that.

My Lords, I, too, add my warm thanks to the Ministers for the extremely gracious and thoughtful way in which they have responded to issues in this House. In particular, I thank the Minister for his willingness to spend some time meeting people personally to discuss their particular problems when he is an extremely busy man with a heavy ministerial list, as indeed is his colleague the noble Lord, Lord Wallace of Saltaire. I do not want to detain the House either, beyond thanking them very much and saying one other word following the noble Lord, Lord Williamson.

There are issues in the amendments that this House has passed which would improve the Bill very considerably. I hope that the Ministers will think quite carefully before trying to oppose them completely, because they would bring about a degree of consensus across the House that would be extremely valuable for our future relations with Europe, about which the Minister has already spoken eloquently. We welcome what he has said about that. I hope that the Government will take away from this at least a willingness to consider whether it might not improve the Bill to accept some of these amendments.

My Lords, we are on the edge, between being in order or out of order. Perhaps I might repeat my noble friend’s request that the noble Lord, Lord Lea of Crondall, might now care to withdraw his amendment. The noble Lord, Lord Pearson of Rannoch, rightly pointed out that we are edging away from Third Reading and into Bill do now pass. I therefore suggest that we allow my noble friend to move the Motion that the Bill do now pass.

I thank the Minister for his reply. I will say for the record that I am taking it from what he has said that we will not have a blinkered or blindfolded ping-pong on the basis of asserting the primacy of the House of Commons. I hope not to be disabused of this but, reflecting on what the noble Baroness, Lady Williams of Crosby, has just said, I hope that these things will be considered very carefully. We are a mature democracy and there is a lot of mature thinking in this House. On that basis, I beg leave to withdraw the amendment.

Amendment withdrawn.


Moved by

My Lords, I hope that your Lordships noticed that my noble friends and I withdrew a number of amendments in Committee and forbore to table any on Report or, again, at Third Reading. We did this to reduce by several hours the inordinate time it was taking for this Bill to pass through your Lordships' House, and so, with the leave of the House, I shall speak very briefly now on the Motion that this Bill do now pass.

The first thing I want to do, and it is not much fun, is to recall what I said at the start of my Second Reading speech on 22 March and now to regret that noble Lords in receipt of a forfeitable EU pension, with one honourable exception in the shape of the noble Lord, Lord Williamson, did not declare that interest during our debates. As I said at Second Reading, it is not helpful to members of the public or those who read our debates if they are not told of noble Lords’ past experience of the subject under debate or where those noble Lords are coming from. That omission skews the whole tone and understanding of our debates, quite apart from anything else.

Although I and those noble Lords who feel as I do on this subject have received no support on this matter from your Lordships' nomenklatura, in the shape of our Committee for Privileges, I am grateful for the public support which we have now received in the national press: from this country’s leading and most amusing diarist, Mr Quentin Letts, on 26 March in the Daily Mail and from the political editor of the Mail on Sunday, Mr Simon Walters, on 19 June. For those who wish to go into the detail of this unfortunate situation, I again recommend my debate in your Lordships' House on 19 July 2007.

As we now look back over our debates and divisions on this Bill, the situation is even worse than a mere failure to declare such an obvious financial interest in debate. Three amendments were carried against this Bill—

In view of the importance of these matters, would the noble Lord also undertake to the House to work very hard indeed, since he is getting such support from the many owners of these newspapers, particularly the tabloids, who support his campaign against Europe, to ensure that they pay UK direct taxes as quickly as possible?

I am not sure that that intervention is entirely on target. I thought the noble Lord was going to berate us about the Murdoch press, and I do not think that the two newspapers to which I referred belong in the Murdoch stable. I am quite happy to collaborate with the noble Lord on that if he will collaborate with me on getting the BBC to fulfil its duty to explain to the British people how the European Union works.

I think I got as far as saying that three amendments were carried against this Bill which together emasculate it entirely and deny the British people any chance of a meaningful referendum on our relationship with the failing project of European integration, which they do not like.

The point I now want to make about those amendments is that they were largely proposed by noble Lords in receipt of a forfeitable EU pension, most of them undeclared, and they were all carried by the votes of noble Lords who did not declare their interest. I can but suggest that the Privileges Committee revisits this subject before the Bill returns from the Commons and does the obvious thing.

As the Bill now leaves us, there is one other regret that I would like to record. It is that the Government did not respond to a question about the background to this Bill which I put to them twice. The Government’s excuse, no doubt in their mind when they designed the Bill, may be that the Bill should not have allowed us to discuss the EU’s real defects: its common agricultural and fisheries policies, its wasteful and fraudulent use of vast sums of taxpayers’ money and its entirely undemocratic and secret law-making process which now controls so much of our lives. The question I put was this: given that even our political class is beginning to see that the euro was and is designed for disaster—

I remind the noble Lord that the Companion states that:

“The third reading of a Bill is normally confined to the formal motion”,

and that interventions should be only in opposition to the Bill itself.

I think that the noble Lord will find that I have cleared this intervention with the usual channels, and I am sorry if he was not part of it.

I think I was saying that even the political class now realises that the euro has become the disaster—

Is the noble Lord seriously suggesting that the usual channels have agreed that he should say what he has been saying about people in this House who are in receipt of pensions from Europe? Is he seriously suggesting that that has been agreed by the usual channels? If not, will he withdraw it?

If any noble Lord wishes to move that I be no longer heard, I am quite happy to debate that, but in the mean time, I believe I did clear this. It may be that they did not have a meeting. I think I am entirely in order to express regrets about this Bill as it passes towards the House of Commons and to say why.

The noble Lord says that he believes he cleared it. Is he not sure that he cleared it? If he is not sure, does he not think that he should not have made those statements?

My Lords, I started my intervention with the leave of the House. If the noble Lord wishes to remove the leave of the House, he is free to do so, and we can debate whether or not I should be heard. I appreciate that noble and Europhile Lords do not wish to hear what I am saying, but unless it is moved against me, I intend to continue saying what I am saying.

So, for the third time, I was hoping that the political class has come to realise what a disaster the euro is. Many of us predicted it. It is a disaster which is being visited on the hapless people of Europe, now particularly Greece, but soon on other countries too.

Why cannot the Government see that the whole project of European integration is equally misguided and dangerous? Surely they must admit that the euro was never an economic project; it was a purely political project that was designed as cement to hold the emerging megastate together. Surely they must admit that that cement is proving to be more explosive than adhesive, so—I have put this question twice to the noble Lord, Lord Howell, during our proceedings—why cannot they lift their eyes just a little further than the euro and see that the project of European integration is fatally flawed and should be abandoned, which would make this Bill irrelevant?

Even the EU’s claims to have secured peace in Europe since 1945 are almost entirely spurious and wholly irrelevant today, so why cannot the Government and our political class see that democracy—

The noble Lord is stretching the rules of the House rather wide. If he carries on, I shall move the Motion that the noble Lord be no longer heard.

If the noble Lord will hold with me for another few seconds, I think that what I am saying is worth having on the record.

I was asking the Government why they cannot see that democracy is the only reliable guarantor of peace and long-term prosperity, and that the sooner we get back to a Europe of democratic nations, freely trading and collaborating together with all their powers returned to their national Parliaments, the better it will be for all the peoples of Europe and, indeed, of the rest of the world beyond. That is entirely in context with the passage of this Bill as it goes to the House of Commons, and as this is the third time I have asked the noble Lord, Lord Howell, the question, I would be grateful for his reply.

My Lords, I am very strongly advised that the custom of this House is that “the Bill do now pass” is intended to be a formal stage. That is what the Companion clearly says, so while I am always tempted perhaps outside this Chamber to engage with the noble Lord, Lord Pearson, who has just put his grand case against not only the entire Bill but the entire policy and this country’s commitment to be a positive force in Europe, as it has been for the past 1,000 years in many ways, and while I would love to explain to him that his view is defeatist and belongs to the past century and not the present one, I will resist doing so and instead repeat my grateful thanks for the kind compliments that have been paid by my noble friend and others.

Will the noble Lord, Lord Howell, join those of us who think that the contribution that has been made by those on all sides of the House, except the noble Lord, Lord Pearson, has been worth while? Will he also join me in resisting the animadversions that have been made about former commissioners, which are utterly untrue?

I am not going to enter into wider or controversial comments, because this is the stage of the Bill at which those would be inappropriate.

Finally, it is true, as the noble Lord, Lord Liddle, has observed, that your Lordships made some amendments to the Bill that we were unable to support from this side of the House. I have no doubt that the other place will consider those new provisions carefully, but overall the thrust, aims and intentions of this Bill are clear, despite some of the amendments that will obviously water it down. Our differences aside, your Lordships' House has engaged in its proper role of detailed scrutiny of this complex legislation and looked at this Bill with diligence. For that, I am grateful, and I repeat my proposal in the Motion that the Bill do now pass.

Bill passed and returned to the Commons with amendments.