European Union (Amendment) Bill

– in the House of Lords at 3:06 pm on 22nd April 2008.

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

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Clause 1 [The Treaty of Lisbon]:

[Amendment No. 1 had been withdrawn from the Marshalled List.]

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

moved Amendment No. 2:

Clause 1, page 1, line 4, at end insert "which amends and alters constitutional arrangements between the European Union and the United Kingdom"

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

The amendment stands in my name and that of my noble friend Lord Hunt of Wirral. We now begin what I fear will be a fairly long process in a complex and very important Bill. I shall make one or two preliminary remarks about the future landscape. A lot of disagreement is ahead—we have to face that. We are here to disagree, I hope constructively and amiably, with each other. However, I hope that we are all agreed on one thing—that line-by-line scrutiny of this Bill is required urgently and, indeed, it is our duty to see how it can be improved. That is our job, and what we are here for.

To be a little pedantic, it is not quite correct to say that the Government gave 11 full days in Committee in the other place, as was observed the other day. To put that at its kindest, I regard that as a somewhat digital enhancement of the facts. The truth is that with the themed debates in the other place, each day's Committee stage was squeezed down to three and a half hours or less, sometimes 90 minutes. As a result, rafts of amendments were never debated, and several very important subjects were never reached at all, such as defence, asylum and immigration, all of which led one commentator to describe the handling in another place as a scandal. I hope that we will not hear any more of that. We have an important job to do—to fill in for what has not been done.

The first amendment is concerned with what could be described as honest labelling or consumer protection-type legislation—namely, presenting the treaty for what it really is. We believe that in the end it pays to be honest with voters and the public. If one tries to get round that it usually comes back to hit one in the face.

I looked in vain—I suppose this was naïve of me—for a Liberal Democrat amendment on this issue. I am glad to see that Liberal Democrats are here. However, I have looked for their amendments but cannot see one to any part of this Bill at all. I am amazed that they have not put down a single amendment. They seem to have given up on their proper duty of scrutiny and improvement in this Chamber. I thought that was what they were here for. Therefore, I presume that they will vote with the Government on everything. I hope that I am wrong but it looks as if that is what will happen. It is very puzzling. These days our Liberal Democrat colleagues on my right seem to have become sort of punk Europhiles. They make Gordon Brown's dithering over signing the treaty and everything else look positively dynamic. I wondered why they abstained and walked out of the Commons. Frankly, I now wonder why they have even bothered to walk into the Lords today if they are not going to play any part in the Bill except to tick the Brussels boxes. Enough of that because it is disappointing but I suppose we—

Noble Lords:

More!

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

If the noble Lord wants to make points of that ilk, will he tell us what a Conservative Government would actually do, assuming this Bill goes through?

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

I certainly intend to do that during the Committee and Report stages of the Bill. We have plenty of things to do. We have a major agenda for improving the European system and for being extremely constructive and pro-European, as this party has always been, unlike the party of the noble Lord who has just intervened.

In moving this amendment I confess that I have an overwhelming, almost eerie sense of having been here before. It is a sort of Groundhog Day experience. This is not surprising because the treaty embodied in the Bill we are looking at includes 96 per cent of the measures in the rejected constitutional treaty. Many of the amendments that we shall move will follow exactly the same track as those tabled by the Government at the time of the initial convention which gave birth to all this process. We shall seek to learn how and why they failed, as most of them did, and what damage the Government believe will be caused by their reappearance in this treaty. That is something to which the public are entitled to know the answers. I hope that we shall get very full explanations from the Government.

It will be contended by some—and has been already—that an amendment of this sort is wrong because the last treaty was not really a proper constitution in the first place. I agree that it certainly was not the tight, limiting and circumscribing constitution that my noble friend Lord Lawson, who is not in his place, argued for on Second Reading, and for which I confess I argued myself some years ago in a book. In my view, which I stated even before the convention was set up, the whole idea of the convention, which was a top-down rather grand affair, was bound to be a disaster. One disaster leads to another so we are where we are now as a result of those errors.

I know that the Government keep claiming that the constitution concept has been abandoned. That is their main claim although the argument comes in two parts. First, it is argued that while the measures are the same—that seems to be admitted—there is no bundling of all the previous treaties into one document, so it cannot be labelled a constitution or even of constitutional significance. No doubt we shall hear that again today. Secondly, it is argued that for the UK it is all different anyway because the opt-outs, safeguards and red lines make it so. Our amendment challenges both these contentions and seeks to ensure that the Bill states the truth from the outset. First, it is by no means necessary for all measures to be in one document for them to have deep constitutional significance and implications and to convey new constitutional arrangements, as our amendment suggests.

As I said on Second Reading, every schoolchild knows that the unwritten British constitution exists outside the boundaries of one document and always has; and just because the wrapping has changed it does not mean that the contents have changed. In the words of Angela Merkel, the German Chancellor,

"The substance of the constitution is preserved"— in the Lisbon treaty—

"That is a fact".

Secondly, the four main UK opt-outs that are supposed to make us different are almost exactly the same as those given last time when the referendum was promised. I will come to that in detail in a moment.

Thirdly, when one examines the red line safeguards, and when independent examination is made of them, they turn out anyway to be pretty worthless; in fact "leaking like a sieve" was what the Commons EU Scrutiny Committee said. It went on to elaborate, as others have, first that the charter opt-out is not an opt-out at all it turns out, despite earlier assertions by the then Prime Minister that it was. The justice and home affairs opt-out and opt-in arrangements we are told could well be overridden by the European Court of Justice now that they have all been absorbed into the single pillar, which is a major change. In the foreign policy area, the Bill seeks to assert that foreign policy has been excluded from the treaty and that 11 vetoes have been removed. In social policy, there are new EU powers in the treaty to which the UK Government originally objected in vain and again which the ECJ could easily overrule in its judgments. We do not know how the ECJ will reach its judgments on these matters; we will have to see.

To all of this, as well as to the remarkable self-amending powers, which we will come to, which are granted by the treaty to the European Union institutions, we will need to give the very closest attention in our amendments. That is certainly no argument at all for claiming that while the treaty may be constitutional for others, somehow when it comes to the UK it has been sanitised by the opt-outs.

Meanwhile, the one point on which there seems to be general agreement is that the treaty is unintelligible; or as the Lords committee says in its report rather more politely, "inaccessible". Apparently, that is the intention. It is the main purpose that the import of this treaty should be disguised to prevent what happened to the last one. We take the view, and I quote the Economist, that trying to sneak through a constitution on the sly is highly unwise and does a disservice to Europe.

Nevertheless, there are some people—some intrepid explorers—who have managed to hack their way through the jungle of convoluted phrases and impenetrable verbiage, including our highly expert Lords Constitution Committee, to which we are very grateful. When it comes at last through all the undergrowth to the clearings at the centre of it all, it finds that the treaty measures,

"inevitably have constitutional implications".

It goes on to quote with approval an expert witness, who speaks of,

"fundamental constitutional change", inherent in the treaty. The committee urges amendments to the Bill to strengthen parliamentary accountability in the implementation of legislation via the treaty; amendments that it is entirely proper for us to make to the Bill, as we will seek to do. I am very sad that we will not have our Liberal Democrat supporters with us even in doing that, although I thought that they were in favour of increased parliamentary accountability.

It cannot be right to present this treaty to the public as something different from what it really is. Almost the whole world knows perfectly well that it has major constitutional implications and, furthermore, that it contains the seeds of powerful further constitutional change via the famous passerelle articles, which, again, we will look at very closely. The Prime Minister says that there will be no more change or transfer of powers, but the President of France, Mr Sarkozy, who visited us the other day—a man of great seductive charm—is already proposing that work should begin on the EU's next round of integration. That can only mean more constitutional change, more powers to the centre and yet another move for Europe in the wrong direction, which will be taken presumably under either the self-amending provisions of this treaty or the next treaty, since Mr Sarkozy believes that this one leaves a great many issues completely unsettled. He is probably right.

Party leaders are always talking about the need to restore trust in politicians and Parliament and to reconnect with the people. The people clearly want a say. The opinion polls make that absolutely certain and we shall be moving amendments on that precise matter. But as a first step, at least we have to tell the people what is truly in store for them, what is on offer and what is really inside the packaging of this treaty that purports to be so different from the previous one. We believe—

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench 3:15 pm, 22nd April 2008

I thank the noble Lord for giving way, but can he answer a simple question for me? Why did the Government who he supported introduce the Single European Act and the Maastricht treaty, both of which contained many more far-reaching provisions than this treaty, without inserting the words of the amendment in the Bill brought before Parliament?

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

It is not actually a simple question. I would not expect a simple question from such a learned and authoritative source as the noble Lord, Lord Hannay. Why were these worries not as great then as they are now? It is a principle that the committee in the other place made very clear. It is a question of accumulation and a tipping point. As we advance with yet another 41 or 51 vetoes, or whatever the figure is, with yet another huge step towards integration, one reaches the point when it has gone too far. Those of us who love Europe—a sensible and modern Europe and not an overcentralised Europe—can see that point clearly in perhaps a way that the noble Lord cannot.

That is why, at this stage, we perhaps need to take even fiercer and stronger steps to protect our parliamentary accountability than other countries which have their own constitutional courts—which we do not have. I do not know whether the noble Lord has grasped that point. If he has not, I suggest to him that we need very strong accountability in our Parliament, because we do not have the constitutional court back-up that is available in France, Germany, Spain, Hungary, the Czech Republic, Italy or any other European member state. I think that that answers the noble Lord's question and I hope he will be convinced by what I say.

We will of course be moving amendments on all these matters, but, as I was saying, it is necessary to state clearly on the packaging what is inside the parcel. We believe that it is proper, transparent and honest to state openly in the Bill the real nature of this treaty. Accordingly, we urge that these amending words now be added. I beg to move.

Photo of Lord Owen Lord Owen Crossbench

I support the amendment. It does not matter, I suppose, if it is not put in the Bill, but its intention and the clarification that it incurs seems pretty important to me. One of the more distasteful aspects of this debate has been the pretence that we are not dealing with constitutional points.

I shall deal with the point raised by my noble friend Lord Hannay. There is no question that the treaty of Maastricht was a constitutional treaty that was put to the people of this country in the general election of 1992 by the then Prime Minister, John Major. He won the election and that greatly reduced the case for a referendum, although I believed that, because so much division of opinion remained, it would have been beneficial to have had a referendum. The European Union amendment Act, which brought in the single market, was also constitutional, although less so than the Maastricht treaty. I believe that the Maastricht treaty was extremely important and good. Its pillared structure tried to introduce a much needed clarification of the separation of powers exercised predominantly by the Commission and the Parliament.

The supranational elements should be defined as such and we have to accept that that is an aspect of the European Union, of which we are a member. There is a supranational element within it, and that has always been controversial. It was hotly debated in the House of Commons, of which I was a Member when the original treaty went through. I believed that some measure of pooling of sovereignty was a reasonable part of the European commitment and I have never changed from that view.

The question, which was becoming more clouded prior to Maastricht, was: was any element specifically not supranational? The great benefit of the pillared structure was that it defined those elements that were not supranational and were the province of the member states. They included foreign policy, defence policy and some aspects of the judicial process. In my view, it would have been much better to maintain that separation in the current negotiations, and I believe that it was a triumph for those who want all aspects of European activity to be supranational to have got rid of the pillared structure and to have, in effect, no great distinction. That is one reason why I believe that this treaty should never have been negotiated in the first place.

However, it can be claimed by the Government that in the past year, when there was an attempt to renegotiate the treaty, that was the one area where significant improvements were made. I pay tribute to the legal advice given to the Government during that period and to the determination to try to improve the treaty. Of course, we were greatly helped by the fact that the French and Dutch knew perfectly well that there was no possibility of avoiding a referendum unless there was more clarification. The way in which the treaty was drafted and the reversion to an amendment Bill have led to some considerable improvements in defining foreign and defence policy as being between the nation states—the signatories to the treaty—and not supranational. However, other aspects are not fully clarified.

Whatever else, and as I have already indicated, the Government can claim great success in doing that, and no doubt we shall hear that that is the case. That only goes to demonstrate that this is a constitutional Bill. The Government have to grapple, first, with the decision to get rid of the pillared structure of the Maastricht treaty, which is itself a fundamental constitutional question, and then, post-Giscard d'Estaing, they have to try to restore some of the structures of Maastricht but in a different way through amendment. Therefore, as I said, I cannot possibly argue that this is not constitutional.

The other argument has been used very effectively in another place—perhaps not in the Parliament but certainly in the country. When the former Foreign Secretary, Jack Straw, argued for a referendum, he made it clear that this was a constitutional Bill because it created a new post—that of the European president of the Council. He also mentioned the double-hatting, with the special representative for foreign affairs becoming also a vice-president of the Commission. These are deeply constitutional questions. If you have previously argued that the special representative for common foreign and security policy, Javier Solana, who in my view has done the job with incomparable skill and demonstrated that we needed that post, should also be made a vice-president of the Commission, you blur the distinction between foreign policy being for the member states and a member of the Commission being supranational. I shall not go into the arguments for or against it now. There are arguments for it and it tidies up some aspects, but its fundamental weakness is that it blurs that distinction. Nevertheless, it is a constitutional question.

The new role of President of the European Council is fundamentally a constitutional question. Hitherto, presidents of the European Council—a council of Heads of Government—have been composed entirely of people who are themselves members of the Council; they are heads of the European states, elected and answerable to their electorates. We now have a completely new position. We can, and no doubt will, argue at various stages whether it is right or wrong, but this is a constitutional matter. In my view, it is profoundly wrong. We always knew that the six-month rotation would have to change once the Community was composed of many more than 12 member states. Very few people will deny that you cannot have the President of the European Council changing every six months. However, alternatives were put forward such as the grouping of member states, which already exists. Such groupings could be much more formalised, with the largest state within a grouping holding the presidency of the European Council for 18 months or two years, which many of us would think was sufficient time for anyone to be president of the Council.

Those are matters of argument but who can deny that they are constitutional? It is impossible for the Government to change their minds about this because, in my view, in order to win this argument about a referendum, they rather foolishly jumped on the argument that this is not a constitutional Bill. They would carry more conviction in this House if they openly admitted that it is constitutional but that its nature as a constitutional Bill does not pass the threshold of importance for a referendum. There is a case for that. We have had some amendment Bills on the constitution which have not been of massive importance and about which most of us would have said, in a flexible structure of referendums, that we did not need a referendum.

Personally, I have always been apprehensive about adopting the practice used in the Irish Republic of automatically needing to have a referendum however small the constitutional amendment may be. I am beginning to realise why the Irish legislature and the Dáil, in their wisdom, decided on that: it is the only way in which one can cope with a Government's capacity to argue that black is white and white is black. In this House, I, along with the noble Lords, Lord Healey and Lord Prior, once proposed an amendment, trying to make a distinction for a referendum between constitutional matters and non-constitutional matters. I admit that it was quite hard to do and one had to put in an arbiter, and the only one we could think of was the Speaker of the House of Commons, who does not always like that position but prefers matters to be dealt with by the usual channels.

When we have a Government who insist that major constitutional matters in the European Union are automatically matters for referendum, they will have to define what is a constitutional Bill or they will simply need to have a referendum for every amendment, which is not a desirable course, as I say. I shall delay the Committee no further. It seems to me to put logic on its head to argue that this is not a constitutional Bill. You can argue that it is a very desirable constitutional Bill; you can argue that it is not a major constitutional change; but to argue that it has no constitutional elements in it seems to me to be quite unsustainable.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 3:30 pm, 22nd April 2008

I do not know whether the noble Lord, Lord Owen, is an enthusiast, as I am, for the political novels of Anthony Trollope, but if he is, he will remember that there was constant reference by parliamentarians throughout the last part of the 19th century for what they called Constitutional Questions, and the Radicals, Liberals and Conservatives argued back and forth whether something was or was not a constitutional question; it could have been 1880, although it is now 2008. I do not think there is any value in spending a lot of time on that question.

There would be value if we had a written constitution and if, as the noble Lord, Lord Howell, seems to wish, we had a constitutional court that had to decide whether something was or was not a constitutional question. We do not have that. We have a rubbery, elusive, unwritten constitution with all the benefits and burdens that that creates. If one were serious in seeking to answer the question posed by the noble Lord, Lord Hannay, the answer would not be that of Karl Marx given by the noble Lord, Lord Howell, that a change of quantity brings about a change in quality—dialectical materialism. I was pleased to hear that the Conservative Benches had become Marxist. That is not the right answer. The right answer is that in truth the constitutional arrangements between this country and the European Union were profoundly altered when we joined the Community, when the noble and learned Lord, Lord Howe of Aberavon—I am not sure whether he is in his place

Noble Lords:

He is here.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

The noble and learned Lord and Edward Heath performed a masterly exercise in their short Bill in profoundly altering the constitutional relationship. Other pieces of legislation have done so. Whenever we enter into a treaty—not just a treaty under the European Union—we alter what could be called constitutional relationships.

I had the pleasure and burden of having to read the whole treaty in this case as a member of Sub-Committee E of the Select Committee on the European Union. I am bound to say that compared with previous treaties, including Maastricht and our original adherence, this is an important one but I would not dream of attaching the term "constitutional importance" to it, making it more important to our arrangements than all the other treaties to which we have adhered as members of the European Community.

The real questions, as I think the noble Lord, Lord Owen, indicated, are not formalistic ones about whether a Bill is constitutional or whether a treaty is right for us to join. It is the merits that matter, and I would find it extraordinary if Parliament were to decide to write into this Bill for this treaty the words in the amendment, which could apply to a great string of Bills implementing international treaties over the past 40 years. The question posed by the noble Lord, Lord Hannay, is the right one, and the answer given by the noble Lord, Lord Howell, is not the proper answer.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

I would not have intervened but for the fact that the noble Lord, Lord Hannay, intervened. With respect, I do not agree for a moment that his question was the right one. First, we need only listen to what the noble Lord, Lord Owen, just said. Secondly, we have to take into account the fact that this is a self-amending treaty, which traduces the sovereign interests and entitlements of this country. Thirdly—and I shall be brief, as I had not intended to speak, as I said—the assertion from the Liberal Benches that what the noble Lord, Lord Hannay, said, is justified is totally misconceived.

I was involved at a very early stage at Messina—long before many of your Lordships because I am so old—where there was a fundamental disagreement. There were two prisoners of war there; I was interested in the issue because I was a prisoner of war, and we did not want any more wars in Europe. That was the fundamental basis of what we determined to do, and I have lost faith in what is happening now. There is a totally different objective; we are a large group of 37 states, bordering on the former Soviet Union, creating problems that we cannot resolve with it or, indeed, with China, which could be better resolved by ordinary diplomacy.

As my noble friend Lord Howell said some time ago, we are moving in the wrong direction and we have to watch it. The fundamental distinction has never been resolved, not at Messina, not at Maastricht and not with ever-closer union, not until we ratify this treaty. We have never accepted a federalist administration. We stood against it. We would not have gone into it with one. I know that from my little experience. So what happened? At Messina, they decided that they could not resolve it and so would leave it out of the Rome treaty, and they did. There it was. A court of justice was set up and left to resolve it, and my word, it did. It inevitably went for it with a federalist approach, unlike our approach of retaining our own sovereignty—incidentally, that was de Gaulle's approach too.

I shall not go on any more. Here we are today. This has not yet been resolved. I do not want it resolved against the interests of the sovereignty of my country and therefore, as matters stand, unless we can come to some accommodation, I am not happy with the treaty.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

The noble Lord, Lord Lester, is absolutely right. The European Communities Act 1972 fundamentally altered relations in this country and this country's constitution. That is why some of us who were against that treaty spoke and voted against it and have been against any further erosion, if I can put it that way, of British sovereignty through the various treaties that have been passed by this House and another place over the years. The country and Parliament were undoubtedly misled by the idea that we were simply joining a common market. They should not have been; anybody who read the treaty of Rome, as the noble Lord, Lord Lester, has, realised that that was the start of a great journey that was bound to end in a federal European state. There is no question about that in my mind, and that is why I have remained an opponent of our membership of the Common Market, which has now become the European Union. I believe in the unity, freedom and nationhood of the United Kingdom, and I believe that that cannot be maintained as long as we are in the European Union.

However, we are not discussing staying in or going out, we are talking about this treaty. We talk about democracy in this country; indeed, we lecture other people about it, but democracy is not about having elections every five years or about putting something in a manifesto and then saying things have changed, although they have not changed, so we do not need to implement that part of the manifesto. I am talking about the promise in the manifesto of each major party that there would be a referendum on the constitutional treaty. The Government say, "It is not the constitutional treaty", although some of us have read the Lisbon treaty and the constitutional treaty and took part in the debates on the constitutional treaty in the Joint Committee set up between both Houses of Parliament. We know that the constitution has been transferred to the Lisbon treaty.

The Government are making a big mistake—no doubt we will come to this later in our debates—in not going for a referendum. If they are confident in their policy, if they are confident in what they say about the Lisbon treaty, if they are confident in the role that they are taking, they ought to have the courage to go to the people to say, "Look here, we are at an important point of our progress within the European Union. Now we want you to have a say". That is real democracy; it is not trying to get round a promise that you have made in a manifesto which you are frightened that you may not be able to keep if the people say you cannot do it. The question of democracy must be put in its proper context. I fear that the Government's failure—and the failure of the Liberal Democrats to deliver on a manifesto promise—will not do them any good.

Let me emphasise the changes that the treaty will make. They are fundamental changes, as the noble Lord, Lord Owen, pointed out. For example, there is the permanent or semi-permanent presidency. It was never envisaged in 1972 that we would have a president of Europe, but that is what this fundamental change will mean. When the previous Prime Minister, Mr Blair, was discussing that issue he said quite firmly that the president of Europe would speak for Europe on the world stage—not individual Prime Ministers or heads of state but the president of the European Union. He foresaw that the presidency was going to be a very important job and would set the debate in Europe, set the agenda in Europe and talk for Europe on the world stage. I am quite sure that the people of this country do not want that—80 per cent of them want a referendum, but they are not going to have one.

The other great change in this treaty is the establishment of Europe as a single entity, giving it a single personality. People say, "That does not really matter", but it does, because it will enable the European Union in its own right to make treaties with other countries without let or hindrance from the nation states, which will not have to ratify such treaties. That is another important change.

There is also the question of a Foreign Secretary. There is no doubt about the intention—indeed, the treaty lays down the importance given to that office. We in this country believe that the Foreign Secretary and the Government carry out Her Majesty's foreign policy. Once this treaty is put into operation, we will have not Her Majesty's foreign policy but his presidency's foreign policy. That, again, is a fundamental and important change, which will not be welcome once it is seen in practice.

There are many other aspects, but we will come to those shortly. I hope that the Committee will have a full, frank and reasonable discussion. In the mean time, I support the amendment.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Home Affairs 3:45 pm, 22nd April 2008

I concede that we are at the warm-up stage of the Committee and that we will perhaps move with slightly greater speed on amendments on our second and third days than we are at the moment. I note that the noble Lord, Lord Howell, promised us line-by-line scrutiny of the Bill, but so far I have heard only a number of familiar arguments about Europe, Britain, national identity and sovereignty and not line-by-line scrutiny. As a veteran of the debates on the ratification of the Amsterdam and Nice treaties, I must say that these arguments are very familiar, although I regret that this time we will not have the 25-minute speeches that the noble Lord, Lord Shore, used to make on these occasions in the middle of Committee.

We do not need line-by-line scrutiny of the Bill. Well over 100 Members of your Lordships' House have already given the treaty detailed line-by-line scrutiny in our committees. Many of us have waded through these massive reports from different committees that we have had. That is the sort of scrutiny that we need and to which we should return in Committee. Scrutiny is, however, also an ongoing process, and the Chamber and its committees should continue to do it. We must be very careful about claiming that Members on our Benches are speaking the truth and that others are not: that we are presenting the truth, if I may quote the noble Lord, Lord Howell, for what it really is. That takes us down all sorts of conspiratorial roads in deciding who is not speaking the truth and who is really identifying the underlying issues. These are charades familiar to many of us from previous ratification debates.

The British constitution is famous for its flexibility, its pragmatism and its ability to adapt to different circumstances. That is also true of Britain's foreign policy and our participation in international institutions. Those who cling to a wish that the world would stand still form part of the bedrock of those who vote for the UK Independence Party. I well remember during the last election campaign a BBC interview with a woman who said that she had just voted for UKIP because, "I would like England to be the way it was 40 years ago". Many of us would like that, although we would like to have today's income in the England that was 40 years ago, but the world changes and our unwritten constitution adapts. When I listen to the noble Lord, Lord Howell, and others on his Benches, I am also reminded a little of Trollope in the 19th century. For the Conservatives and unionists, the EU is the equivalent of the Irish question in the late 19th century. It is the one they stub their toes on all the time. They cannot come to terms with it, and they grapple with it as a constitutional issue. However, all international treaties limit national sovereignty. Membership of the United Nations limits British sovereignty.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

The noble Lord has left his less than flattering allusion to the UK Independence Party, of which I have the honour to form part. When he refers to the change in the British constitution, does he not understand that the fundamental element of the British people is that they should elect and dismiss those who make their laws? I should be grateful if the noble Lord would answer that. Or has he abandoned that element in his great, brave new world?

Does he not realise that leaving the European Union would be immensely advantageous to us not only constitutionally but economically? Unless he addresses those problems, which are the questions of the future, and if he goes on dwelling in the past, he will not advance his case.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Home Affairs

I should have congratulated the noble Lord, Lord Pearson of Rannoch, on the new addition to his party in the House of Commons. I hope that it is not the last from the Conservative Benches. I realise that the overlap in the Conservative Party and the UK Independence Party is a matter of great delicacy which we will see many on the Conservative Benches struggling with as we deal with the Bill.

I do not agree with him about the absolute defence of British sovereignty. When I was a history student, I read through some of the debates on the Irish question in the late 19th century. For the unionists, the sovereignty of the Westminster Parliament was absolutely inalienable. One could not allow Dublin, let alone Edinburgh, to have its own Parliament, because that would somehow destroy the essence of what was the United Kingdom, which of course was about English supremacy.

The noble Lord should also have noted that David Cameron, the leader of the Conservative Party, in a rather good speech on the North Atlantic Treaty Organisation at Chatham House two weeks ago, proposed common funding for NATO defence—a common budget for defence operations which would be a huge loss of British sovereignty. In that respect David Cameron recognises that we are in a different world from 50 years ago, let alone 100 years ago. The leader of the Conservative Party recognises such a pooling of sovereignty as worth while at least in the Atlantic context, even if in the European context he still stubs his toe on those who do not speak English, who are therefore not trustworthy.

We have US bases on British soil, and they are an immense invasion of British sovereignty. I passed RAF Menwith Hill at sundown two weeks ago and stopped to watch US soldiers taking down the RAF flag that marks the British presence there. There were no British soldiers present although there were one or two MoD police outside. It is a huge incursion of British sovereignty which most of us recognise to be worth while for our security.

The right-wing conservatives in the United States, with whom some on the Conservative Benches are highly familiar, believe that American defence of sovereignty is indeed absolute. Justice Scalia of the US Supreme Court and others argue that the United States cannot accept that international law overrides American domestic law. I do not think that we in this country wish to accept that; we accept that, in a changing world, international law has to limit domestic law. So we are talking about a number of international obligations—of which the European Union is the most extensive—of a political character.

I should like to remind the Committee of what Sir Alec Douglas Home said in June 1971 when opening the debate on Britain's application to join the European Community. I say to the noble Lord, Lord Stoddart—since one of the great myths is that no one told us what we were going into—that Sir Alec, in his first sentence, said that the first thing he wished to say was that,

"our application is a step of the utmost political significance ... I don't think that it is true to suggest that the political case has been allowed to go by default or that the political implications have been suppressed".

He went on to talk about the desirability of co-operation in foreign policy. He said that,

"it is inevitable, and I use that word advisedly, that Western Europe will begin to carry more of the burden of its own defence".

In 1971, he was clearly talking about foreign policy and defence co-operation as part of the implications of joining the European Community. He ended by saying:

"Perhaps my real fear for this country at this moment is that we are in danger of getting out of date in our thinking".

That could be a motto for the UK Independence Party, but not, I hope, for most of the remaining speeches in this Committee stage.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 4:00 pm, 22nd April 2008

I have to say to the noble Lord, Lord Wallace of Saltaire, that his plea for proper line-by-line scrutiny of the Bill would carry a bit more weight if there was a single Liberal amendment on the Marshalled List. There are no Liberal amendments. I find that very surprising as his party made a great play in the other place of tabling an amendment for a referendum on a slightly different question—which, of course, under the rules of this House would be perfectly in order. I dare say that the scrutiny to which the Bill will be subject certainly on these Benches will prove to be excruciatingly embarrassing for him and his party.

The noble Lord, Lord Lester, talked in his speech about how he was mystified as to why there was so much interest in the use of the word "constitution", because we do not have a constitutional court. He told us that he had read the treaty as part of his duties in this House—we all sympathise with him, and no one more than Giscard d'Estaing, who has described how impenetrable the treaty is—and said that he could not understand why so much emphasis has been put on the use of the word "constitution". I suggest that he read page 13 of the Liberal Party's 2005 manifesto, which states:

"We are therefore clear in our support for the constitution which we believe is in Britain's interest—but ratification must be subject to a referendum of the British people".

My noble friend's amendment, which I support, will not be supported by the Liberal and the Labour Benches, despite the fact that what it says is blindingly obvious. They are opposed to it because it draws attention to the embarrassment that they carry, having told a lie to the British people during the general election campaign when they promised a referendum on this treaty. That is why the words which my noble friend wishes to add to the Bill are so important. They remind people that a promise was made and a promise has been broken.

It is the deceit that is central to the handling of this Bill, a deceit which was underlined in the debate on Second Reading. I usually enjoy the speeches of the Leader of the Liberal Party in this House. However, when he said that the Liberals had changed their position on these matters—from one of promising a referendum, to one of abstention, to one of being determined to vote in this House against a referendum—he gave as one of the explanations that the arithmetic in this House is different from that in the House of Commons. That a party should decide its policy on arithmetic, having given a solemn pledge to the British people, is quite extraordinary. So this amendment is important. It draws attention to the blindingly obvious, and it is something for which two parties in this House will have to account to the electorate in due course.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I am grateful to the noble Lord for allowing me to intervene, and for his reference to me. Would he accept that one of the differences between this House and the other place is that we in this House are capable of transcending narrow party advantage and looking at issues more freely? Would he also accept that none of the main parties has covered itself in glory when it comes to the questions he has raised—not his own, my own or the government party? What we need to do is not hurl abuse at each other about deceit, being misleading and matters of that kind, but actually look at the merits of what we are discussing.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I would be more persuaded by the noble Lord's suggestion that we transcend party advantage if his party had not stood its position on this matter on its head in the House of Lords compared with the position adopted by his party in the House of Commons. A number of the elected Members of the Liberal party in the House of Commons were sacked by the Leader of the Liberal party for abstaining on the Bill, and in this House the unelected Members on the Liberal Benches have decided to take a completely different position. I have considerable respect for the noble Lord, not least for his intellectual abilities, but for him to try to make the argument that his colleagues on those Benches are transcending party politics is the height of absurdity. Clearly they are playing party politics. They are rescuing the Government from the defeat they would suffer on the referendum question were his party to maintain its position.

The noble Lord raised the issue of the role of this House. What is the role of this House? If this House is not able to stand up for the promises that were made to the electorate by almost every single Member of Parliament standing for election and insist on a referendum, people will begin to question what exactly this House is for. The noble Lord and his colleagues will have played a major part in bringing the House into disrepute by the way in which they are playing party politics and denying the people the right to speak on these matters as they were promised. Governments can govern only by consent.

I am not a committed Euro-federalist. I believe that we should be in the European Union, and I want the European Union to work. One of the ways in which Governments have to operate is by consent. By forcing political structures on the people without consent, they will destroy the very institutions they support. It is not anti-European to insist on the people having a say; it is pro-European. It is in the interests of Europe that this should be seen to carry consent. The reason noble Lords on the Liberal Democrat Benches are denying the promise which their elected colleagues made to the voters is that they know that if there were a referendum, they would lose it very substantially.

That is the difficulty. It has been compounded by the attitude that has been displayed, and I have pages and pages of quotes from leading Europeans. I have mentioned Valery Giscard d'Estaing. In a letter to Le Monde on 27 October—it has been quoted a number of times but we should keep it in mind—he said that the new treaty is designed to avoid having a referendum thanks to the fact that the articles are spread out and constitutional vocabulary has been removed. There is that word "constitutional" again.

The reason why the noble Lord, Lord Lester, is puzzled and why the noble Lord, Lord Hannay, asks why the amendment is not appended to our Bills is that it is central to the whole debate about whether this new European institution will carry the consent, and be seen to carry the consent, of those who are affected by it. The amendment, though strikingly bland, is therefore necessary. In any other circumstances both the Government and the Liberal Democrat Benches would accept it.

They refuse to accept it because of deceit. That is not a party political point. It is a deceit to tell people in a general election campaign—in order to get elected, to get on the red and the green Benches—not to worry about the European constitution, that it is not an issue for the campaign and they will have an opportunity to discuss it properly later, but then to turn round and say, "We are withdrawing that opportunity".

Photo of Lord Tomlinson Lord Tomlinson Labour

I had not really intended to intervene in this debate; I thought that it was going to be a rather cathartic experience for Eurosceptics opposite and I would just sit and listen. But I have listened with great interest to a number of the contributions, in particular that of the noble Lord, Lord Forsyth, who has just sat down. He appeals to us that he is really one of those Tories who is a good European and that he wants to be in Europe. But everything he then said showed that he wants to be a good European and in Europe providing that the other 26 countries of the Union change their opinion of what the Union is and bend their will to his. That is not pro-Europeanism. It is an individual sort of arrogance: "We are the people who will tell Europe how to run its affairs and what it ought to do. If they were really good Europeans they would all change their minds and join in with our rather eccentric, limited view of what Conservative Europeanism is".

Earlier we heard from the noble Lord, Lord Stoddart. He took us for a wander down memory lane, through 1972 and the circumstances leading up to the 1975 referendum. That referendum is deeply ingrained upon my memory; I felt we were being dragged along by our own Eurosceptics in the Labour Party, and we had a fix of a referendum. That was not in order to paper over fundamental constitutional issues—there was no such issue to sort out—but to patch over the divisions inside the party and stay in power for the rest of the 1970s. That is what it was all about.

My own recollection of that referendum was of even more concern to me. I approached the parliamentary bookmaker in the House of Commons, Mr Ian Mikardo, and asked him what odds he would give me on getting a yes vote in every constituency in the United Kingdom. He offered me 200-1, on which I had £10 with him. My big regret was not the fact that we won the referendum, but that those marginal parts of the United Kingdom, stuck there in the Western Isles and Orkney and Shetland, cost me the £2,000 from Mikardo. That indicates that we got a yes vote in every constituency in England, Wales and mainland Scotland; those two island constituencies were the only part of the United Kingdom that let us down.

The David Stoddarts of this world, and the people who were leading the campaign to destroy our European engagement, were promising that the referendum would resolve the issue for all time. So far as I am concerned, in my party that issue is resolved.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

It was not only the David Stoddarts of this world but also the Neil Kinnocks who had that point of view at that time.

Photo of Lord Tomlinson Lord Tomlinson Labour

I am sure we all recognise that my noble friend Lord Kinnock has shown great maturity as he has aged. He has changed his mind definitively and made a positive contribution, whereas the noble Lord, Lord Stoddart, is telling us the same fairy tales that he was telling us 40-odd years ago.

Photo of Lord Kinnock Lord Kinnock Labour

What I did was much simpler than what my noble friend suggests. I heeded the words of a former Member of this House, Lord Keynes, who advised that when he discovered he was in error he changed his mind. "What do you do?", he said—and I am still asking that question of some dear friends who are erstwhile comrades.

Photo of Lord Tomlinson Lord Tomlinson Labour

I do not wish to delay the House much longer. I have only two more points to make. The noble Lord, Lord Stoddart, told us that we would have full, frank and accurate analysis. I suppose one out of three is not bad; it was certainly full—but frank and accurate it was not. It was a distortion of the historical position.

I agree with two points made by other noble Lords. Importantly, the noble Lord, Lord Owen, clearly said in his opening remarks that we can do without these words that Amendment No. 2 would add. He would prefer to have them there, but they are clearly not imperative to the Bill. I also agree with the analysis of the noble Lord, Lord Lester, and the views that have emerged from the legal sub-committee of your Lordships' House, which have examined this question in great detail and have come to a conclusion that is completely opposed to the rhetoric that we have heard from opposition spokesmen here today.

I remind the Committee of the important words of John Palmer when he gave evidence to the Select Committee, which were echoed by Professor Damian Chalmers of the London School of Economics. Describing this amending treaty, they said that it was much ado about not very much.

Photo of Lord Williamson of Horton Lord Williamson of Horton Crossbench 4:15 pm, 22nd April 2008

I declare an interest as having spent a large part of my life working on European affairs in the United Kingdom Civil Service and some part of it in the European Civil Service. As part of my conditions of employment, I have pensions from both sources. That is fairly straightforward. I hope that this declaration of interest will last for the whole of the Committee stage, because I would not like to have to say it every time.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

I congratulate the noble Lord on being the only Member of your Lordships' House to declare that he is in receipt of an EU pension, which can be lost if one fails to uphold the interests of the Communities, as we shall discover as we proceed.

Photo of Lord Williamson of Horton Lord Williamson of Horton Crossbench

It is a great pleasure to be a friend of the noble Lord, Lord Pearson of Rannoch, while not being a friend of the United Kingdom Independence Party. As an independent Peer, I am in a remarkable position; that is, I have no political baggage whatever; I have no commitment to a referendum on the original constitution; and I have no commitment of a political kind to having no referendum on this treaty. I offer only the view of a citizen. I have no political baggage. I do not have to transcend, as everyone else over there has said, political points or political history. There will be no transcending on my part.

I fully understand that we will have nine days of debate and come to a serious decision at the end, with a vote no doubt, on whether this treaty should be discussed with a view to ratification, as the Government propose, in the parliamentary procedure, or whether it is of such importance and such a constitutional nature that there should be a referendum. That is the main part of the issue ahead of us. It is the soap. Today, we have the trailer, because we have not come to that decision, and there are disagreements in the Committee on whether there should be a referendum. So we will come to that.

For the moment, I shall stick to the narrow issue of the amendment as proposed. We are sometimes so wide of perspective in this Chamber that we do not quite notice the narrow points, so I allocate to myself a chance of looking at the specific point. I heard the arguments of the noble Lord, Lord Howell, but I question whether it is right to change the system under which we simply list treaties, as we have in the past, important or not, in the European Communities Act. On the whole, I would prefer not to do that, because we have followed a different procedure, even on important treaties, in the past.

My second point has not been made and may be disagreed with by the movers of the amendment. The amendment as proposed is in Eurospeak. When people start talking about altering constitutional arrangements, they are easily understood in this Chamber. However, in the greater part of our kingdom, people do not clearly understand what that implies. I can understand that some Members might like to spell out in much greater detail, as suggested here, not in these words but in a fuller description, what this treaty is concerned with, but, as it stands, it does not tell the citizen very much. It tells us that we are specialists; we know about constitutional arrangements or think that we do; but ordinary citizens do not gain very much from there being written in at the beginning of a list of treaties something which says that this treaty alters constitutional arrangements. I understand the motivation behind the amendment, but it does not do much good for the consumer for this to be written out. It tells them very little. I make that point because I have not heard it made by others. In the course of nine days of debate, it is extremely important that one or two points be made which have not been made by other Members of this Committee.

Photo of Lord Blackwell Lord Blackwell Conservative

I support my noble friend's amendment and speak to Amendment No. 125 in my name, which is in the same group. Like other noble Lords, I should very much like to get down to the substance of these treaties but it is difficult when the Government continue to deny in effect the substance of what we are supposed to be debating—the consolidated text, or the end result of it. This is not a historical textbook; it is not even a novel by Trollope. It is a substantive document that sets out the basis on which the EU will be run and governed over the coming years. It is very difficult for a common-sense reader not to conclude that it is a constitution for the European Union.

There is an executive answerable to the European Parliament, increasingly sharing powers with the Parliament rather than answerable to the nation states, as was originally intended. The treaty declares for the first time that the European Parliament creates democratic legitimacy for the European Union as a sovereign entity in its own right, with increasing powers for that Parliament. It has a powerful president, who will shape the agenda of the Union, and its own court, which is not answerable to any other court but is the highest court in the territory in which it operates. It gives the European Union a legal identity and the power to enter into international agreements. The nation states, which used to be in charge of this thing, are now relegated to the status of members of a senate, in which they have majority voting to decide what they do or do not agree with, and can be taken to court under a number of provisions of this treaty if they do not do as the European court has ordained it that as nation states they should do.

Any common-sense description of this treaty would say that it was a description of a sovereign entity called the European Union, and that this was its constitution. Noble Lords do not have to take my word for it, because the Government published exactly the same text two or three years ago with the label "EU constitution" on the front of it. Yes, the articles have been put in a different order—but at Second Reading I made the point to the Minister that I could find only two articles in the constitutional text that were not reproduced in whole or in part in the Lisbon consolidated text. The Minister did not reply at that stage and the Government have studiously avoided giving us that comparison. If they seriously want to make the argument that this document is different from the constitution, I challenge the Minister to set out which articles she thinks are in this text that were not in the constitution and which articles were not in the constitution that are not in this text. I say that there are two—and I should like to hear her contradict that, if she wants to take these arguments seriously.

I move on to Amendment No. 125, which is related and refers to the provisions at the front of the constitution that set out the objectives. It is not uncommon for constitutional documents to set out the objectives under which the rest of the constitutional clauses fall. These have particular significance; they are in Article 3 of the consolidated text. The House of Lords report on the impact of the treaty, to which we have referred, notes that the objectives are not just there for window dressing and are not just nice narratives, but that they are,

"likely to have some effect on the way in which other provisions of the Treaties are interpreted, not only by the European Court of Justice but also by the other institutions when undertaking their tasks".

So the initial objectives of the constitution have a real significance for us.

The Lisbon treaty adds new objectives, which this House needs to take note of, because they may in many ways cut across objectives that UK Governments may wish to deploy. In particular, the treaty introduces the objective in Europe of creating a social market economy, aiming at full employment and promoting social justice and protection. We all know that those words are code words; they have a political meaning and are not just nice objectives. They will be interpreted by European Governments and the European court to imply a particular kind of social market policy—a protectionist, high cost and, as it turns out, uncompetitive market. It is a particular view with which many of us in this country disagree.

When those objectives are put alongside the Charter of Fundamental Rights, there is real concern that it creates scope for rulings by the European court that directly impact on the UK's freedom of action, and, in particular, on the Labour market. The House of Lords report I referred to earlier also notes that these objectives may be taken as justifying the extension of European Union competencies under what was the old Article 308 and is now Article 352. In other words, the fact that these objectives are set out there will allow the European Union to extend its powers under its constitution in new areas.

These are political objectives and have no place in a constitution. The consequence is that a future Government could sign up to things as a result of them, which would bind their successors to a particular political format of Europe that may not be the political philosophy that they wish to pursue. In that way, the constitution may end up constraining the freedom of action of a future UK Government.

My amendment seeks to bank the Government's assurance that future governments will not be bound in that way. I am sure that the Government will ensure that this is not a constitution and that the use of these objectives to constrain the UK law will not be possible. I wish to bank that assurance by my amendment which makes clear that the UK laws cannot be constrained by the wording of these objectives. I ask the Minister to confirm—since I am sure that she will want to make those assurances—that she is perfectly happy to accept my amendment that puts that provision in the Bill.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

It may be helpful if I follow my noble friend Lord Blackwell as my name is on Amendment No. 126, which follows his Amendment No. 125 to which he has just spoken. The wording my colleagues and I have used on the amendment reappears often in the Marshalled List. Its purpose is to ensure that whatever amendment we pass into the Bill—and I very much hope that we will eventually pass my noble friend's amendment—actually bites, and that the wording of the original European Communities Act cannot be used to circumvent whatever we decide in the Chamber. I am afraid that, without our amendments, that is the position.

I am sure that I do not need to remind your Lordships of the whole of Sections 2 and 3 of the European Communities Act 1972, but can paraphrase it. Section 2 for the first time passed the power of the British courts to the Luxembourg Court of Justice. The particular part of the 1972 Act which I fear should go on record in your Lordships' proceedings—Section 3(1)—reads as follows:

"For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court)".

In other words, from then on the European court ruled. Our amendment would exclude those words from any amendment that we may pass to the Bill.

Secondly, my contribution to the debate will be to ask the Minister two questions, which I asked her in writing and which she has not yet answered. I think they will help to inform the Chamber about whether this really is a constitution. I will end by making a third suggestion which I hope will allow the House better to understand these proceedings.

The first question which I wish to put to the Minister has achieved the distinction of being No. 2 of the unanswered Written Questions. I asked Her Majesty's Government what is the legal status of the European flag and anthem in the United Kingdom and in the rest of Europe. That is an important question because I understand that the only difference of any substance between the constitution upon which a referendum was promised, which the Dutch and the French voted down, and the treaty which is now before us is that the flag, the anthem and Europe Day have been left out. It would be helpful if the Minister were to answer that Question, bearing in mind that the flag and the anthem are used all the time and the fact that they are being left out of the constitution does not mean that the flag will be pulled down or that Beethoven can be relieved by no longer having his wonderful music abused in such an unfortunate cause. What is the legal status of the flag and the anthem and what is our relationship to it?

Secondly, I asked the Minister two Questions to which she was good enough to reply but which she did not answer. Those Questions were answered on 28 February. I asked Her Majesty's Government:

"On which areas of United Kingdom national life the European Union is not able to legislate"— that is, now—and, as a sort of second barrel to that Question, I asked Her Majesty's Government:

"On which new areas of United Kingdom national life the European Union will be able to legislate if the Lisbon Treaty is ratified".

I was asking what there is in our national life that the Brussels system of law-making cannot touch. She did not answer. She gave the same Answer to both those Questions, which was:

"For the first time the Lisbon Treaty defines the Union's competences, setting out where the EU can and cannot act".

That is not an answer to the Question. She continued:

"These competences are set out in Article 2(12) of the Treaty of Lisbon— ... pages 52-55—presented to Parliament in December 2007. The treaty explicitly states that competences not conferred on the EU remain with member states".—[Hansard, 28/2/08; col. WA 133.]

The trouble is that if you look at pages 52 to 56 of the treaty of Lisbon, you are left asking the same question: what area of our national life can the EU not touch? I will not go through it all now. Your Lordships can read about the exclusive competences, the shared competences, the internal market, industry, culture, education and civil protection. It goes on and on. It is very difficult to find what areas are left out, especially when one bears in mind the justice and home affairs element of the new treaty and the common, foreign and security element.

I did not intervene further in the speech of the noble Lord, Lord Wallace, because I felt that the mood of the House was that it was time he moved on and into the future. However, I remind him that as regards the international obligations to which he says we are subject and which deprive us of our sovereignty—I think that he mentioned NATO, US bases here and so on—we can leave those tomorrow if we wish and they do not make the majority of our law which we do not want.

I repeat that the basis of our constitutional settlement is that the British people elect and dismiss those who make their laws. We have now come to a situation where the majority of our national law is made in Brussels and imposed on this Parliament by the Brussels system. To make matters worse, under this treaty we now grant legal personality to the new Union. I am assured in Brussels that that is regarded as the jewel in the crown when the court gets going. As other noble Lords mentioned, there is the passerelle clause. The noble Lord, Lord Hannay, is right—the treaties which went before this were all constitutional.

It is true, unfortunately, that my former friends in the Conservative Party got it wrong in not granting a referendum on the Single European Act, the Maastricht treaty, Amsterdam and Nice, which many of us in this House tried as hard as we could to get. I repeat that five wrongs do not make a right and we in the UK Independence Party are prepared to welcome a sinner that repenteth in the shape of my former friends.

My helpful question for your Lordships—I hope—is to the Minister. I reach it by quoting another of my favourite quotes on why this treaty is indeed the same as the constitution. It is from Mr Karel De Gucht, the Belgian Foreign Minister, and it goes as follows:

"The aim of the constitutional treaty was to be more readable; the aim of this treaty is to be unreadable ... The Constitution aimed to be clear, whereas this Treaty had to be unclear. It is a success".

My final question to the Leader of the House is: can she help us with this? Surely it would be reasonable for the Foreign Office to produce for your Lordships for the rest of the proceedings on this Bill a very simple index of the treaty of Lisbon, so that when we come to debate a subject we can look it up in the index and find it in the treaty without having to wander all through the previous treaties, all through what is left of the constitution, the renumbered documents and the total confusion that surrounds the examination of what is before us.

I do not know whether any other noble Lord would care to support that request, but there are armies of people in the Foreign Office who no doubt have such an index at their fingertips, because otherwise they have to go to their computer to look up where something is in the treaty. If that index could be made available to all noble Lords, I am sure that it would facilitate our proceedings.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour 4:30 pm, 22nd April 2008

I found two contributions to today's debate on the amendments very persuasive. First, I thought that the contribution from the noble Lord, Lord Owen, made a telling point about constitutional amendments and that when we think that something affects our constitution we should be clear and straightforward about that. I also found that the detailed analysis by the noble Lord, Lord Blackwell, reflected the very thoughtful and penetrative contributions that he made during the work of the Select Committee on this treaty.

For me, the whole question comes down to two issues: what is a constitutional arrangement and what changes amount to real alterations and real amendments? That is the first point. Secondly, are they of sufficient importance in this treaty to merit particular mention in the Bill? There is no doubt, looking at the changes in this treaty, that there are institutional changes, operational changes and definitions of competences. There are the red lines that have been drawn that affect the extent of the changes in the relationship between the European Union and the United Kingdom, and no mention has been made of those. It seems to me that what the Bill is talking about at the moment has no more of a constitutional impact than that which we have seen in previous treaties, and that what we really see here are changes to who does what and the operational way in which we conduct our business between ourselves and the European Union.

I thought that the noble Lord, Lord Forsyth of Drumlean, would be more persuasive if he could possibly be a little bit less offensive in how he expresses his very forthright views. People who disagree with us are not necessarily liars; they are not necessarily deceitful, monstrous people. There can actually just be straightforward political disagreement, and that is what we are dealing with here, not some horrible perfidy on one part of the House rather than the other.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I did not call anyone a liar; I said it was a lie to the British people to say that they would get a referendum on this treaty. Listening to the noble Baroness, I would remind her that she was a member of the Government who argued that the previous treaty was no more than a simple tidying-up exercise. The Prime Minister subsequently changed his position to argue that it was a constitutional treaty that required a referendum. I believe that that was a deceit and I do not withdraw that in any way. It is not a matter of having a disagreement; it is a matter of what her party promised the British people, what elected Members promised and what is now not being provided.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

The trouble with that is that I think that someone who tells a lie is a liar. I do not know how the noble Lord draws a distinction between saying that those who have told a lie are not liars and that those who told a lie are something else. But we will let that stand. If the noble Lord is willing to say that we are not liars, but that we have told a lie, we will let that stand. It seems a peculiar distinction to want to make.

Even if some do want to describe the changes as constitutional, we must all admit that this is an argument about whether or not we support the move towards a referendum. We went over this point in enormous depth for more than 12 hours at Second Reading. I fully understand that we will go over and over it again, but it seems that essentially what the noble Lord, Lord Owen, based his very powerful argument on was the question of whether the words in the amendment merit inclusion in the Bill. He said that he believed that the changes were constitutional and, therefore, merited inclusion in the Bill, because that should have been done with Bills on previous treaties. I do not think that that argument stands up. To make an unprecedented move to include these words in the Bill is to single it out and to single this treaty out as being of paramount importance and having more constitutional impact than its predecessors. Otherwise, why single it out? Why say that this treaty merits that sort of treatment when other treaties do not?

I do not believe that anyone who has looked at European treaties over the years can honestly believe that this treaty has more constitutional impact than the treaty of Maastricht or the Single European Act. It simply does not. I do not know of an academic, any colleague of mine who has held office in the Foreign Office, a politically neutral civil servant or anyone else who would say that.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

I have obviously had some impact.

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative

I apologise to the noble Baroness for interrupting her flow. On her point about the comparison with Maastricht, I ask her three questions. First, is she aware that the Foreign Secretary himself has said there is more movement to QMV in this treaty than in Maastricht? Secondly, is it not a major point, as the noble Lord, Lord Owen, pointed out, that in huge areas the pillared approach continued under Maastricht? Thirdly, the most important area that was not part of the pillared approach was the single currency. A referendum was, indeed, promised in the single currency provisions.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

I am aware of the last two points, but I was not aware of the first. I would like to check that before accepting the noble Lord's word for it, because it would be pretty peculiar if that was what the Foreign Secretary said. I will certainly go away and look at that, but the points that the noble Lord has made do not undermine my argument in any way.

My first point is that a constitutional arrangement is not the same as an institutional arrangement, an operational arrangement or defining competencies, all of which are clearly in this treaty. Even if you take the view that there is a constitutional impact, I would argue that it is no more than the constitutional impact of any treaty, because a treaty has an impact on sovereignty, as the noble Lord from the Liberal Democrat Benches described when he spoke earlier. It seems to me that we are setting a bizarre precedent in wanting to put these words in the Bill when most of us—obviously not the noble Lord, Lord Lamont of Lerwick, and probably not the noble Lord, Lord Forsyth—do not believe that this treaty has anything like the constitutional impact of its predecessors. Why take this one and make a precedent now? There can be only one reason: it is because it is the bridge-head into the argument about the referendum. The noble Lord, Lord Forsyth, has been very clear on that point but I do not believe that his argument stands up. I think that I have an honest disagreement with him and we will debate that further, as we did at Second Reading. I do not think that the words "lie" or "deceit" are appropriate but the noble Lord will go on using them and I shall go on objecting.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP 4:45 pm, 22nd April 2008

Could we compromise with "breaking a promise"? Would that do?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

Before the noble Lord goes any further, that will not do either, but I am sure that we will come to that in due course. This is a Second Reading matter and we will come to amendments later. Let us leave it until then.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

This is not Second Reading. Surely the noble Baroness accepts that there is something in the cumulative argument and the cumulative effect of all these treaties and that this is the one that breaks the camel's back. Does she see no force in that argument?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

No, I do not. For the reasons that I explained clearly at Second Reading—the noble Lord was in his place at Second Reading because he beamed at me when I made the points—I do not accept his argument. However, it is an argument of honest political debate, not of the name-calling that we have heard this afternoon.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

I want to make a very brief intervention. Is it not the case that relinquishing full control of our defence policy by agreeing to QMV is a major constitutional decision that affects everything in this country? I cannot see that that is not an issue affecting the country.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

Answering that specific question, I had the honour to be a member of Sub-Committee C of the European Union Committee, and the effect on our foreign and defence policies was explored exhaustively under the excellent chairmanship of the noble Lord, Lord Roper. We took extensive evidence and came to a wholly different conclusion to that of the noble Baroness.

At least the noble Lord, Lord Pearson, is honest and clear in his objectives. He wants to leave the European Union and reverse all our policies since we joined. It is sad that the objectives of the Conservative Party in this debate on the European Union are not so clear. The Conservatives retreat into an attempt to recreate the Union in their own image, but that image is not shared by any other member of the European Union and it is therefore a total illusion.

The dangers in today's debate are, first, the temptation to anticipate the debate on the referendum which is to come—I think that the noble Lord, Lord Forsyth, fell into that trap, as though he were unaware that we will no doubt have several debates on the referendum at different stages of the Bill—and, secondly, the temptation to enter into semantic argument not about lies but about whether this is a federal or confederal matter and whether the treaty is or is not a constitution. We can lose ourselves in the highways and byways of such arguments. Indeed, objectively, the high water-mark of federalism within the European Union was probably the Maastricht treaty. Since then, a number of modifications have moved away from that high water-mark, including the safeguards contained in the Lisbon treaty, which, for example, give much greater powers to national Parliaments. I believe that the spirit of many leaders in the European Union, not least President Sarkozy and Chancellor Merkel, has moved substantially in that direction, probably following their electorates.

I do not follow the noble Lord, Lord Owen, in saying that in effect the 1992 general election was, at least in part, a substitute for a referendum on Maastricht. Even if there were a referendum, it would probably be on a wholly different issue from the purported issue for the referendum, as happened, for example, in the Welsh referendum of 1997. I played a large part in that at the time and the issue was: "Do you or do you not favour the Callaghan Government?". When I campaigned with the French socialist party on platforms in France on Maastricht, the issue was not the Maastricht treaty, but "What do you think of President Mitterrand?" and various other matters which were basically irrelevant to the terms of the treaty. I remain wholly sceptical about referendums. I think it was President Mitterrand who said that in referendums the French people always answer the wrong question.

Sadly, the real danger is how the Conservative Party will react. Will there be a genuinely positive, line-by-line examination of the Bill, or will its members act in the spirit of destruction of all that is there, yet at the same time purport to be good Europeans? Scrutiny, yes; negativity and destruction, no. I look forward to seeing whether there is a scintilla of a positive approach to Europe emerging from the Front Benches opposite.

Surely the main point in this debate is that made by the noble Lord, Lord Hannay. The amendment simply says,

"which amends and alters constitutional arrangements between the European Union and the United Kingdom".

It is absolutely clear, as the noble Lord, Lord Hannay, said, that such a form of words was not used in previous treaties. In previous treaties, all that happened was that the name of the treaty—whether Maastricht or the Single European Act—was simply transmitted from the decision of the intergovernmental council into the form of a Bill which enacted that treaty. So one is bound to pose the fundamental question: what is the difference? Why now, when it was not considered appropriate in those earlier treaties?

Perhaps I can turn to the Metternich question. After several days of eyeball-to-eyeball negotiation with his Russian counterpart, news was brought to him at the start of the next day that his Russian interlocutor had died during the night. It is alleged that Metternich said, "What was his motive?". I will pose that same Metternich question: what is the motive of the opposition Front Bench in moving this amendment to the Bill when there was no similar provision in earlier Bills? The only reason that I can see for inserting the word "constitutional" at this stage is to use it as a kind of paving stone for a referendum.

I will avoid the semantic, the tempting discussion of saying what a constitution is. Do we in the UK have a constitution? Yes, we have elements of a constitution. Even written constitutions can be altered fundamentally. Look at the difference between the US constitution of the founding fathers and that which exists today. Look at the way in which, for example, the different presidents—President Roosevelt as an activist president and President Eisenhower as a more placid president—led their country, or look at President de Gaulle and President Pompidou and the constitution of the Fifth Republic. Let us avoid that and come back to this amendment. Of course much will depend on experience, but, in my judgment, this amendment is not necessary. It is a departure from earlier precedents and it is bad practice to seek to amend the clause and to insert this amendment at this stage.

Photo of Lord Fraser of Carmyllie Lord Fraser of Carmyllie Conservative

I hope that today, or at some future date the Labour Party and the Liberal Democrats will combine to defeat this amendment because then neither I nor the British people will ever have to read their manifestos again. I am not going to engage in some philological discussion about whether the Labour Party manifesto was a lie, but the British people—and we are an unelected Chamber—were told this:

"We will put it to the British people in a referendum and campaign wholeheartedly for a 'Yes' vote".

The Liberal Democrats said:

"We are therefore clear in our support for the constitution, which we believe is in Britain's interest—but ratification must be subject to a referendum of the British people".

I alone in my old constituency argued in favour of a yes vote in the referendum in the 1970s, and not a single member of the Labour Party supported me. We had such a heated meeting that Norman Godman, who I am sure the noble Lord, Lord Kinnock, will remember was subsequently the Member of Parliament for Greenock, stood up in a public meeting and said, "Not everybody in the Labour Party is campaigning for a no vote but in this constituency we are". That was the situation.

I am not in favour of referendums; they are not a good idea. It is the responsibility of the elected House of Commons to come to a decision on this. But the British people were told by the Labour Party and the Liberal Democrats that there would be a referendum and that they need not engage themselves in this issue at the general election. That is the point. It is not whether one is for or against Europe, or about any attitude along the line, but about the fact that the British people were misled. That is fundamentally anti-democratic and I shall be saying so at the next general election.

Photo of Lord Harrison Lord Harrison Labour

I hope noble Lords will forgive me for absenting myself for 20 minutes while I attended the European Union Select Committee and also if I fall into the trap offered by the noble Lord, Lord Wallace, and speak to the amendment before us and examine it line by line. The amendment would add to the rubric of the Bill the words,

"which amends and alters constitutional arrangements between the European Union and the United Kingdom".

I will vote against it for the reason that it does not improve the Bill and could be thought of as misleading because it highlights a constitutional basis to the Bill.

I listened hard to the noble Lord, Lord Owen, in his interesting intervention. It may be true and that all such Bills have some constitutional element, but it is for Members of the Committee to judge how potent or otherwise the constitutional element is. Despite what the noble Lord, Lord Lamont, said, the 1972 Act establishing the European Community, the Single European Act 1986 and the Maastricht treaty in 1992 all contained clear and obvious elements of constitutional change in respect of the United Kingdom vis-à-vis the European Union, and might be considered transparent. As far as I know, we did not have any such rubric saying, "Watch out, there is a constitutional change being made". It would be misleading to add this now to the Bill.

I have heard some interesting examples from both the leader of the Conservatives and the leader of UKIP in this House today. They have both invoked the familiar idea of the straw that breaks the camel's back. My memory of recent political history is that back in the 1970s the Conservative Party brought along bales of straw and loaded the first load on this unfortunate camel. Mrs Thatcher's Administrations brought further bales of straw to put on its back; then Mr Major, in his turn, brought his tithe of bales of straw. By now, the poor camel was labouring under the European constitution in all its brightest form, yet it is now our Government who bring along the single straw that breaks its back. All the constitutional elements that the men of straw opposite have brought over the years are as nothing compared with the straw that now breaks the camel's back.

The noble Lord, Lord Howell of Guildford, who I am sure is very familiar with loading bales of straw on camels, plucked out of the air the notion that the amending treaty before us is 96 per cent—so precise—of the former constitutional treaty. From where does he pluck that figure? Is it from the same pocket or shelf as that from which his colleagues plucked 99 per cent, 92 per cent and 88 per cent? During his opening speech, he mentioned his assessment that an element that has been excised from the original constitutional treaty is the simplification that the noble Lord, Lord Forsyth, talked about, although it performed the useful function of trying to simplify and make more readable all the Acts that have been through this Parliament with reference to the European Union constitution on previous occasions.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords 5:00 pm, 22nd April 2008

I shall come back to these matters later, but I am afraid it is just more arithmetic. If 242 out of 250 measures in the constitutional treaty are in the Bill, that works out at 96 per cent. It is just straightforward maths; there is nothing dramatic about it.

Photo of Lord Harrison Lord Harrison Labour

The maths admit what I was going on to say which is that the element of revision—which would be, in the noble Lord's words, so useful as the British public and the public of the European Union could read the simplified and cleaned-up version of all that governs us in the European Union—is more than 4 per cent of the original constitutional treaties.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I think the noble Lord may have misunderstood what I said. I referred to the Government's line on the previous document, which was called the constitutional treaty before the Prime Minister gave his commitment to a referendum. The Government's line against a referendum was that it was a simple tidying-up exercise and there was nothing in it of major or constitutional importance. The Government then changed their line when they promised the referendum and are now using the previous line. It is not about simplifying. As my noble friend said, they are identical documents; all that has changed is the Government.

Photo of Lord Harrison Lord Harrison Labour

I hope the noble Lord, Lord Forsyth, will concede that an element of the original constitutional treaty was the attempt to summarise and simplify all the treaties that had gone before and that, in that, it was a useful exercise. I ask the noble Lord, Lord Howell, to clarify that.

We are now being asked to include in the rubric of the Bill words trying to emphasise the constitutional arrangements. That would be misleading to the British public. It was not done before, when clearly there was every right and purpose in doing so. That is why we should vote against the amendment.

I do not often treasure the words of the noble Lord, Lord Pearson of Rannoch, but I shall treasure his description of this treaty as a straw, because I feel that in the next six weeks we will hear quite different weights given to this treaty by the noble Lord and each time I shall be thinking of that straw.

The cumulative argument, which the noble Lord has made use of to justify the amendment, which was made use of also by the noble Lord, Lord Howell of Guildford, does not wash. We are asked to ratify, or to prepare the ground to ratify, this treaty. We are not asked to give further parliamentary consideration to all the other treaties to which this rubric was not attached. So the cumulative argument cannot wash; nor can one accept that it was only an unfortunate oversight by the various Governments formed by Members opposite who put the Single European Act and the Maastricht treaty to this House and the other place that they forgot to mention that there were some constitutional implications.

I am addressing this simply because it is the noble Lord, Lord Howell, who has proposed the amendment. He has now revealed that the thrust of it is because of the cumulative effect of all the treaties. That will not work, so I argue very strongly that we should follow the practice that we have followed with previous European treaties and simply list this treaty with no qualification and no reference to its nature or style.

The noble Baroness, Lady Symons, has a very beguiling bedside manner, but I fear that I cannot follow her prescription. I much prefer the prescription offered by Dr Owen—I beg his pardon, the noble Lord, Lord Owen—who advocated constitutional medicine. This is definitely a constitutional treaty. To pretend otherwise is utterly absurd. We have not heard many quotes, so I will give the House a few quotes this evening. My noble friend Lord Howell mentioned Angela Merkel, who said:

"The substance of the constitution is preserved. That is a fact".

The Spanish Prime Minister has said:

"This is a project of foundational character, a treaty for a new Europe ... We have not let a single substantial point of the Constitutional treaty go".

It has also been said that 96 per cent of it is still there. The Czech Republic said:

"Only cosmetic changes have been made".

Denmark said:

"The good thing is ... that all the symbolic arguments have gone, and that which really matters—the core—is left".

So we go on. Belgium said that the new treaty takes up the most important elements of the constitution. Speaking for Luxembourg, Herr Juncker said:

"The substance has been preserved from Luxembourg's point of view."

Monsieur Valery Giscard d'Estaing, the author of the constitution, was delighted, and notes on this blog that:

"a rerun of a great part of the substance of the Constitutional Treaty" is still there.

Then up pipes the small voice of our Foreign Secretary who says, suddenly, against all the evidence:

"The constitutional treaty has been abandoned".—[Hansard, Commons, 3/7/07; col. 803.]

How very odd. He is the only person, the only Foreign Minister, to say that, and only our Government seem to believe that this is not a constitutional treaty, so they are not having a referendum.

The amendment proposed by my noble friend Lord Howell is absolutely right. I say to the noble Baroness, Lady Symons, and the noble Lords, Lord Hannay and Lord Anderson, that you can justify not having a referendum on the Maastricht treaty because it was in no political party's manifesto, whereas having a referendum on this treaty was a manifesto commitment. That is a major difference.

Photo of Lord Tomlinson Lord Tomlinson Labour

Will the noble Lord once and for all understand that the promise of a referendum was on the original constitutional treaty? That died with the two referenda in France and the Netherlands. The constitutional treaty was abandoned. We now have an amending treaty. The promise in the manifestos was made in relation to the former, not the latter.

Photo of Lord Willoughby de Broke Lord Willoughby de Broke UKIP

The noble Lord obviously was not listening when I read out the quotations from all 26 heads of state in the European Union, who said, "This is a constitutional treaty, thank you very much". Of course it is a constitutional treaty. I do not accept it, and I will not accept it. I am sorry about that.

I said that the fact that none of the Governments had offered a referendum on the Maastricht treaty was one reason why we did not have a referendum on this treaty. We should have a referendum, however, first because it is in the manifesto, and secondly because, as my noble friend Lord Pearson said, several wrongs do not make a right. Where do we stop? Why should we not have a referendum on this treaty just because we have not had one on previous treaties? Do we stop and say, "Yes, let's consider this. Let's offer it to the British people", or not, even though we have not had referendums before? All parties gave a manifesto commitment to have a referendum on this treaty, so we should have one. My noble friend is quite right; five wrongs do not make a right, and it is time to have a referendum. I am quite sure that we will debate that in due course. Meanwhile, I support the amendment wholeheartedly.

Photo of Lord Kinnock Lord Kinnock Labour

I am somewhat unused to, or perhaps bemused by, the inclination of the more profound and chronic Eurosceptics in the Chamber, especially those from UKIP, to endow the words of other European leaders with massive authority, which contradicts very strongly their otherwise unblemished record of regarding with contempt the judgment of the very same people. It is quite extraordinary.

I rise only to reinforce the point made by the noble Lord, Lord Hannay; that is, to emphasise that among the other features of this amending treaty, which distinguish it clearly and implacably from the previous constitution, is the fact that that constitution would have displaced and replaced every single treaty of the European Community. This treaty does not do that. It amends, which is distinctly different from accumulating, replacing and codifying all that has gone before. It simply takes its place alongside the treaties of Maastricht and of Nice, the single Act and the assortment of other adjustments that have had to be made over the 50-year lifetime of the European Union, in order to be able to face the altering realties of the world and the continent in which we live and to equip the sovereign democratic states of a larger European Union with the collective means of dealing with the common threats and opportunities much more effectively than would otherwise be possible.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

Will the noble Lord deal with a point made by my noble friend? He has described how the treaty is not a consolidation measure but an amending treaty. Will he tell us how it differs from the original constitutional treaty and what makes it not a constitutional treaty, rather than describe the consolidation aspect?

Photo of Lord Kinnock Lord Kinnock Labour

The noble Lord must have suffered untypically from a momentary lapse in concentration, because I just told the Chamber about just one of the features that categorically and irreversibly makes a difference between the amending treaty, which is currently under consideration, and the constitutional proposal that was previously before Europe until it was killed off by the electorates of the Netherlands and France.

For the record—this may permit me not to have to cover the same ground again and again in the days stretching out before us, although I live more in hope than in expectation on that point—I never favoured the necessary amendments to the procedures, practices and systems of the enlarged Union being called or supported as a constitution. The noble Lord, Lord Patten, was here earlier. I am certain that he would bear testimony to the fact that in the European Commission when we considered these matters with the two representatives that we had on the so-called convention, I repeatedly made the point—to his credit, he made similar points—that since what was being proposed, despite the grandiose terminology of Giscard D'Estaing, did not alter the way in which any of the democracies of the European Union were to be governed, it could not therefore justifiably be called a constitution. I continue to insist on that valid point and I had some pleasure in putting it directly to Giscard D'Estaing when we had the opportunity to discuss these matters.

I should like to make another brief point, which is connected to my former point. Publicly, repeatedly, and sometimes in contradiction of the leadership of my party, I made it very clear, well before the 2005 general election and the compilation of the manifesto as well as after, that since what was being proposed could not be regarded justifiably as constitutional, it did not in this parliamentary democracy warrant a referendum.

We can discuss the merits of referendum, but I am certain that noble Lords who have said that Members on the other side are pursuing a political line are correct. However, it would be implausible—indeed, impossible—for this House or any House of Parliament to try to avoid being political in its argument, so I do not quarrel with the right of Members opposite to offer political arguments. I echo the view of my noble friend earlier who rued the fact that words such as "lying" and "deceit" were used, but it is up to the people who use them to decide whether they adorn or undermine the force of their argument. I leave that entirely to noble Lords opposite.

If it is argued now that on this treaty there should be a referendum, and that the final judgment on this treaty should be taken away from Parliament and be made the subject of plebiscite, where does that stop? If the answer cannot be offered as to where it stops, what issues are fit to be determined by Parliament and what issues are of such concern and such status as not to be considered by and determined by Parliament, where does it stop? Until that question is convincingly answered—not conveniently answered—at least we shall know who put the "dum" in referendum.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench 5:15 pm, 22nd April 2008

With his usual distinction, the noble Lord, Lord Kinnock, has done the service to the Committee of trying to disentangle the issues of what is a constitution and what is a treaty. He also has done us the service of trying to flesh out the difference between allegations made from one side of the Committee and those from the other.

Like others who have declared their positions during these debates, the first political meeting I went to was called by Mr Grimond, held in the town where I then lived, in favour of the Common Market. I was in favour of that and, as a teenager, went to that meeting with great enthusiasm, not least because my father was one of five brothers who had served in the Armed Forces. One brother died in the RAF. My father was in the Desert Rats and survived. They all believed, as I did, that the community of the European nations should come together and do what they could to create reconciliation in Europe. I believed in the ideas of Maritain, Mounier, Monnet, De Gasperi and others who had created the European Community.

Throughout the 1970s, alongside others who fought for that idea, in the difficult environment of Liverpool where I was a Member of Parliament, I fought in favour of the retention of our membership of the European Community when the then Labour Government called a referendum, which was the right thing to have done. It was right also when I stood alongside the late Peter Shore and the noble Baroness, Lady Thatcher, and argued for a referendum in favour of Maastricht, although I was in favour and they were against.

It is right that there should be a referendum now on the Lisbon treaty. The reason why I think that, and I agree with my noble friend Lord Owen on this, is that this is an issue of trust. The question placed before the electorate at the last general election was clear. Like other noble Lords, I have been out on the streets in the most recent local elections campaigning for candidates of different political persuasions—I am an independent Peer, so I can do that—and I heard again and again people raising their concerns about this matter. The issue for them is one of trust. They ask why it is that they were promised the opportunity to vote in a referendum on the Lisbon treaty when it is now being withdrawn. We are in grave danger of misunderstanding the feeling among many people who believe that elites are driving them into something of which they are not in favour. That is what the House has to consider.

The goal for the European Community that the original founding fathers had in mind was a good and noble one, but in some ways it has left people behind. In that sense the noble Lords, Lord Pearson and Lord Willoughby de Broke, and others have expressed a sentiment that we should at least be alive to in this House. To drive this on without any consideration for those concerns would be a huge error. And what is it that we are so frightened of? I have no fear of campaigning in a referendum, and indeed if it were on the referendum question that was begged by some of my former friends in another place recently—whether we should remain a member of the European Union—I would argue that we should. Surely that is not a question we should be frightened to put to the people of this country. I am concerned that we, in these confined spaces and rather refined environment, are losing sight of that.

Photo of Lord Waddington Lord Waddington Conservative

I apologise for not being present at the beginning of this debate. There is one point which is it important to make: we should keep in mind the bearing this matter has on the issue of the reform of this House. Some noble Lords—I can see one of them in their place—are vehement Europhiles and believe that this place should remain a largely nominated Chamber. But a lot of people are watching this House, and if the nominated House does not use its powers to make the elected Members in the other place honour the promise that every single one of them made to the electorate to support a referendum on the matters set out in this Bill, quite frankly, we might as well all go home.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

We have debated this amendment for two hours and 14 minutes. I begin by saying that I have been looking forward to our debates, and I have not been disappointed. I say that because assuming that we can keep the temperature down just a little, this debate is already proving to be a fascinating opening to our consideration. I want to say something about how I intend to approach this because the noble Lord, Lord Howell, was good enough to say how he would do so at the beginning of his remarks. I have had the privilege of talking to many noble Lords about the course of our consideration, and I hope that in the six days of debate we will have the opportunity to do what the noble Lords, Lord Howell and Lord Hunt, in particular, but other noble Lords too, have asked for: as far as possible and led by the amendments that have been tabled, we should go through the Bill line by line. Doing so will allow us on many occasions not only to have high-quality debates about particular issues, but also to question, as noble Lords have begun to do today, the issues that lie at the heart of some of the divisions between the different Benches of this House.

That comes down to questions such as: what this treaty amounts to when considered in detail; how different it is, or not, to the constitution that was put before; whether that should have been put down, as my noble friend Lord Kinnock, who is not in his place, said, as a constitution in the first place; or as we look further forward, whether that should have led to a referendum based on the genuinely held view of some noble Lords that that was a commitment which should be kept to because there is no fundamental difference. I hope that scrutiny of the treaty will bring forward all the issues of detail that will enable those noble Lords who have not yet reached a decision to do so. I have to say that all the contributions I have heard today reflect the strong views held by noble Lords in one direction or another. None the less, it is important that our colleagues who do not have strong views have the opportunity to hear what is good or bad about this treaty in other people's minds and eyes.

At Second Reading I made a promise to the noble Lord, Lord Howell, that I intend to keep. I have 50 pieces of paper covered in quotations, many from leaders of other European states and from all over the place. I do not intend to use them. I intend to quote only Members of your Lordships' House and another place. I pay great tribute to, and will use substantially, the reports of the European Union Select Committee in another place, the committee in your Lordships' House and the Constitution Committee. All of these reports have been quoted and, alas—as my honourable friend Michael Connarty said in the Commons—misquoted from time to time. If I can encourage noble Lords to stick to using those we know and those who can stand before us and tell us what they meant when they wrote what they wrote, I think our debates will be substantially better. I am not going to resort to quotations from a variety of leaders and I would welcome other noble Lords' agreement that that is a substantially better way forward.

For the purpose of this short contribution, I am going to concentrate on the amendments before us. I am not doing that in order to run away from the bigger questions.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I am just taking in what the noble Baroness said. Is she seriously suggesting that we should have a debate about this treaty in which we do not quote from Prime Ministers, leaders of Europe and Brussels? The only conceivable explanation I can have for her suggesting that is because so many of them have said things which are in direct contradiction to the Government's line.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

The noble Lord is completely and utterly wrong in that. The week before last, during the Recess, I spent three days in Brussels talking to a variety of people and having many conversations about the treaty. Obviously I have had the opportunity to obtain information through our Foreign and Commonwealth Office and my fellow Ministers about the views of many others. My point was meant to be more substantial than the one for which noble Lord has given me credit.

I do not believe that it will necessarily help our colleagues and other noble Lords who are looking at this debate and looking at the substance of the treaty if all that happens is that we read out quotes or parts of quotes from a variety of different leaders who are not here to explain the context of what they said or, indeed, what happened next. If other noble Lords choose to do that, it will be fine. I was merely saying that, for my part, in looking at the questions that are to be raised in this Committee stage of the debate—in delving through, at the request of the noble Lord's Front Bench, a line-by-line examination—I feel it much more important that those who have scrutinised the treaty as it stands now are best placed to be quoted in terms of what is being suggested within it. If the noble Lord, Lord Forsyth, wishes me to revert to my 50 pages of quotes, I shall be very happy to do so, but I am not sure that noble Lords will find us trading quotes any more helpful than listening to noble Lords debate the issues from their knowledge and background. That is the point I wish to make.

As I said, I intend for today's purposes to focus on what is in this group of amendments. That is not to shy away from the broader discussions that have been raised. We were in danger of moving into a second Second Reading debate, but there will be many opportunities to discuss the issues. One can see from the amendments that have been tabled that there will be many opportunities to look at the issues about which noble Lords are very concerned. I expect that on one of our days in Committee there will be a particular focus on the question of a referendum. The noble Lord, Lord Blackwell, has already tabled amendments, for example, and there may well be others by now. This is a consequence of the last clause in the Bill, where the commencement date will give us an opportunity to debate the issue.

I am not moving away from that but I am not prepared to turn it into a Second Reading debate. Noble Lords who did not hear what I said at Second Reading are very welcome to read it; it was an extraordinary debate of 12 and three-quarter hours. Today I want to begin the process of dissection; of looking at the individual issues that have been raised. This is notwithstanding the strength of feeling—which I absolutely understand—of noble Lords who wish to raise other issues as well.

In this group of amendments—I am grateful to all noble Lords who have talked to me about groupings and so on, and we will continue that dialogue, too—we are challenging what we saw in the 1972 Act, which is about the primacy of European Union law. When we gave effect to that in 1972, it was already well established. It was something that those involved at the time recognised was important, in order to ensure that we had uniform application of the operation of the single market. If we undid that underpinning point about primacy from 1972, we would fundamentally and radically change our relationship with Europe; indeed, we would change the way that Europe operated.

Parliament, of course, remains sovereign. It can choose to repeal the 1972 Act and the application of the primacy of European Union law. There may be noble Lords who wish it would do that, but the consequence, in my view, is that that would have to go hand in hand with leaving the European Union. The noble Lord, Lord Pearson of Rannoch, agrees with me on that, and indeed may agree that some noble Lords would wish to see that happen. Let us be clear that that would indeed be the logical outcome of moving away from the current position.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP 5:30 pm, 22nd April 2008

I hope that the Minister did not misunderstand me. I was not saying that if we were to have a referendum on this treaty and for any reason we were to reject it, that would lead to the United Kingdom leaving the European Union. When we come to the debate on the referendum, my arguments will be precisely the opposite: we would stay in the European Union, and we would be stuck in it for a very long time.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

The noble Lord was not saying anything; he was nodding. By that, I thought he was agreeing with what I said—that if you move away from the 1972 Act and the primacy of European Union law, the logical conclusion would then be to leave the European Union. I am deliberately talking not about the referendum but only about the amendments as they stand.

The Lisbon treaty does not alter anything in that area. When we come on, as I hope we will, to look more closely at what is proposed for the role of national parliaments, we will see that that role is strengthened. Noble Lords of all persuasions should welcome that because it gives parliaments a direct say in EU law-making for the very first time. I have no doubt that some noble Lords will argue that they wish to see more, or perhaps less, of that and they will want to understand what it actually means. There is a lot to do, particularly in talking to our European Union Select Committee about how we make that a proper reality in a way that both Houses of Parliament would wish. None the less, that measure is there, and I hope we will have good and interesting debates on it.

Photo of Lord Owen Lord Owen Crossbench

The Minister said that we would be doing this for the first time, but that is not the case. The European Assemblies Act 1978 made it clear that control would be by primary legislation in this House. The proposal from the Government is merely a single vote in both Houses.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

The noble Lord and I may be talking at slightly cross purposes. I am suggesting that, within the Lisbon treaty, the European Union for the first time is making it clear that it wishes to see direct involvement from national parliaments. I think the noble Lord is referring to what happened in 1978 from the UK perspective of its relationship with the European Union. In that case, neither of us is wrong, but I am saying that from the EU's perspective it is the first time that the EU has offered this. When it was in Brussels it was clear that this was an important part of current thinking about how, if the treaty is ratified, it could be made a reality when it is implemented.

I shall say something briefly about each of the specific amendments in turn. What we have done in Clause 1 is standard practice. Other noble Lords, with far greater experience than I, have talked about specific experience of putting together the beginnings of a Bill. We have defined the treaty in standard, neutral terms. I will not repeat many of the arguments that have been made by noble Lords about the purpose of Amendment No. 2. On one hand, it is argued that the wording would signify the reality; on the other, one could argue that the wording would be there in order to ensure that we raised the issue of the constitution in such a manner that it would lead to a referendum. There are different views on that. None the less, we believe that the wording is unnecessary and, indeed, inappropriate. We on the government Benches believe that the treaty of Lisbon does not amend or alter our current constitutional arrangements with the European Union and will not have any fundamental implications for the constitutional position of Parliament.

I turn to the Constitution Committee report, on the basis of what I have already said about those I shall quote. On the impact of the Lisbon treaty on the European constitution, it says:

"the Lisbon treaty would make no alteration to the current relationship between the principles of primacy of European law and parliamentary sovereignty", as I, too, have said—in fact, it strengthens the role of national parliaments.

When I look through that important report, it is difficult to find anything about which there are serious concerns. There are interesting points that the Government must respond to, and we aim to respond as quickly as possible so that those responses can form part of the debates we have in your Lordships' House. However, when the committee looked at fundamental rights, accession to the EU, the European Convention on Human Rights, citizenship and competencies, it concluded that there were no significant implications for the UK constitution. That conclusion comes from an important committee, and I am sorry that the noble Lord, Lord Goodlad, is not in his place. I hope that noble Lords who have not yet had the chance to look at the report will do so. It raises questions for the Government, of course, but it is interesting in terms of that important principle.

Amendment No. 125 would undermine the application of the principles of primacy and direct effect. As I have said, they are long-established principles that were there before we joined the community; principles that are fundamental, I argue, for the effective and uniform application of laws across all EU member states, and that remain unchanged by the Lisbon treaty in any way. I have already indicated that it is for Parliament to decide if it wishes to repeal the Act. By passing the Act, Parliament, not the EU or the European Court of Justice, decided to accept the obligations of European Union membership—or, as it was then, EEC membership—for the United Kingdom. We have continued to exercise our sovereignty in passing the legislation necessary to implement every amending treaty. Parliament remains free to repeal the treaty, but let us be clear what that would mean—it would mean leaving the European Union.

Some noble Lords have indicated that they remember being part of the discussions and debates in 1972. I am going to quote the then Solicitor-General, now the noble and learned Lord, Lord Howe of Aberavon, who unfortunately is not in his place. I do not think he will mind me repeating what he said then:

"It would make a nonsense of the necessity for Community law to have the same effect in every member State if the United Kingdom, any more than any other member State, could choose by national law to override what it did not like. The principle of Community law having precedence throughout the Community is one that operates for the mutual benefit of all member States".—[Hansard, Commons, 13/6/72; col. 1317.]

I quote the noble Lord because I could not conceivably have put it any better. His words from 1972 echo through the decades, describing precisely why it is important to ensure, if you have an agreement and you implement the law, that it is implemented in the same way throughout the Community.

Amendment No. 126 from the noble Lords, Lord Willoughby de Broke, Lord Stoddart and Lord Pearson of Rannoch, adds a further sentence—

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative

When the Minister says that Community law must be implemented in the same way in every state within the European Union, how does that apply under the arrangements the Government are defending whereby the protocol relating to the Charter of Fundamental Rights would apparently shield non-UK citizens who are resident in this country? They would presumably find that they were not subject to the Charter of Fundamental Rights in the same way that they would be in their own country.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

The Charter of Fundamental Rights does not create new laws; it does not say that there is a justiciable reality for people in this country that is different for residents or citizens. With luck, we will have a debate later today that will take us into the whole question of the Charter of Fundamental Rights, the purpose of what we have done with the charter and what it does and does not do. There is no contradiction in what I have said regarding the implementation of EU law, but we will discuss that in greater detail later.

Photo of Lord Blackwell Lord Blackwell Conservative

Perhaps I may clarify what the noble Baroness the Lord President is saying. My Amendment No. 125 refers solely to the new powers created by the treaty of Lisbon. If she is not prepared to accept it, is she saying that we are giving the European Union the power to decide whether laws and actions of the UK Government are compatible with the new objectives that are built into the treaty by the treaty of Lisbon—that of a social market economy, for example? Is that the import of what she is saying, because that change is introduced by this treaty?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

I am not saying that. We are a part of the European Union. The noble Lord described it as if it were something over there. I am saying that when a decision is made by 27 member states to move forward on a proposition, and when that proposition comes to be implemented across them, the European Union law that applies to that has primacy. It does affect what we do in our own domestic legislation per se, except where the EU legislation covers subject matter where we have agreed that it should. We will look at that in greater detail. The noble Lord's amendment would take away what we accepted in 1972—I have already quoted the noble and learned Lord, Lord Howe of Aberavon, speaking at that time—namely, that if one is going to belong to a group of countries collaborating on aspects of economic or other policy, where one agrees to work in a particular way, that law must apply. That is the difference between what the noble Lord proposes—we would in effect take away what we agreed in 1972—and the current position.

Noble Lords have tabled an additional amendment, the purpose of which would be the same. We are a member of the European Union; we derive practical benefit from it; and we are bound to implement the law. That position has served us well over the decades and, for these purposes, will serve us into the future. I hope that the noble Lord will feel able to withdraw his amendment on that basis.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

I thank the noble Baroness the Lord President for setting out frankly and openly her view of how we should proceed with the amendments and how we should develop the debate as we go along. I shall form a good—I was going to say unholy—alliance with her in avoiding quotation fatigue, which would bear us all down. In fact, I shall adopt the approach of the Japanese towards their finest treasures and antiquities, which is to bring out one a month and to admire it. So, during the debates, I shall bring out one superb quotation each time to underline our devastatingly strong case on these matters.

The noble Baroness broke her own truce by quoting the excellent report of the European Union Committee.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

I did not. I would hate for the noble Lord to think that I immediately broke my truce. What I think I indicated—I ask noble Lords to nod if that is what they thought I had said—is that I would quote only Members of your Lordships' House or of another place and the three committees: the Constitution Committee, the European Union Committee in this place and the European Scrutiny Committee elsewhere.

Noble Lords:

Hear, hear!

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

If your Lordships settle for that bargain, I shall do so as well. I shall quote from the excellent report of the House of Lords Constitution Committee. It states in its conclusion, which is in heavy black type, that part of the TFEU treaty will,

"inevitably have constitutional implications. In practice, much will depend on how the Government choose to exercise the opt-ins they have negotiatedWe conclude that the importance of how the opt-ins and opt-outs are used is such that Parliament must be fully involved in their use".

It also quotes with approval one of its witnesses, who, talking about the changes to the TFEU, said that the reform clearly implied "fundamental constitutional change". Those statements are in black and white, so the noble Lord, Lord Tomlinson, is quite wrong in saying that none of the reports from your Lordships' House supports us or that their conclusions are the opposite of what we are saying: they are right in line with what we are saying. They are right in line with the fact that there is a constitutional significance which merits a change in the wording about constitutional arrangements in the terms which we have set out. That is a matter on which we will probably not agree, but at least let us have the facts either side aligned; they cannot be gainsaid.

Of course the amendment was intended to be a rather narrow point; we were trying simply to bring home the observation, or the improvement, to make the Bill rather more honest goods, and state more clearly what it is about. Inevitably, the debate went wider. Neither I nor the noble Baroness can control how a debate goes—thank goodness—in your Lordships' House, and we wandered off into wider things. I very much agree with the noble Lords, Lord Williamson and Lord Willoughby, who both reminded us not to become too loaded with jargon and insider's talk. To many people, the very word "constitution"—I think that the noble Lord, Lord Lester, was on to the same point—is strange. For many people, it refers to body-building exercises at a health club on a Friday evening or, for some, a doctor's term in a medical remedy. So we have to be very careful to adopt the right language in our debates. However, we were making a narrow point. Some speakers chose to go very much wider, and we drifted off into the referendum issue, which we shall debate later. I listened with great interest to the noble Lord, Lord Kinnock—his very voice brought back memories of past battles—who asked where we stop with referenda. I shall simply leave him with the question whether he put that question to the former Prime Minister, Tony Blair. If so, what was the answer? I shall be fascinated to learn at some stage what it was, because it was the former Prime Minister who recommended a referendum.

Photo of Lord Kinnock Lord Kinnock Labour 5:45 pm, 22nd April 2008

I can make the response immediately. On his terms, we agreed to differ. I am irreducibly against robbing Parliament of the responsibility; he was disposed to take a different view on what he then regarded to be a constitution. His view has since been repaired in accord with the great change that has taken place in the document that will partially determine the way in which the EU conducts itself.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

Nothing that the noble Lord says surprises me in the very slightest degree. I am sure that views have evolved and changed in every direction, sometimes at a bewildering speed which is quite hard to follow.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

Does the noble Lord agree that no referendum can take away the right of parliamentary decision? We are a parliamentary democracy. The idea of a referendum is to advise Parliament. Parliament should perhaps think very carefully before rejecting that advice, but referenda do not undermine the principle of parliamentary democracy.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

I do not want to enter that debate now, but it is probably correct that referenda, as the previous Prime Minister, Mr Blair, obviously believed at the time, are in certain circumstances justified in giving the people a say before Parliament reaches its final conclusion. There is a lot in what the noble Lord said.

The noble Baroness the Lord President began her speech with a major point about the primacy of EU law. It is correct that it was not in the Rome treaty; it evolved from the diktats and judgments of the European Court over the years, and was then given a boost by our own European Communities legislation when we joined the Community in 1972. This Bill and this treaty extend the powers of the ECJ enormously because of the collapse of the third pillar. Suddenly, they extend over a very wide area.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

Would the noble Lord like to reconsider his use of the word "diktat"? The European Court of Justice has been there since Ted Heath onwards. Has he always thought of it as giving diktats?

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

The noble Lord is quite right—it is the wrong word. It slipped out. I should not have used the word diktat; I meant "judgment". I tried to correct myself, but not quickly enough for the noble Lord, who is very sharp on these matters. But the point is that there is a big extension of the area—

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

Surely a judgment against which there is no appeal is a diktat.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

Another very relevant point. Perhaps the right word that we are groping for is "ruling". What I am trying to get to is that the outcome of the rulings of the European Court of Justice and the powers of that court, which now extend over a very wide range of bodies, as they never did before, with its powers to impose large fines and many other penalties, are vastly extended with the collapse of the third pillar.

I shall not go into the points that the noble Baroness raised about national parliaments. There is room for a very wide debate about whether in practice there is any enlargement of the role of national parliaments at all under this treaty. I know that the intention was there but whether it works in practice is something that we shall discuss at another time.

The noble Lord, Lord Lester, implied that I was in favour of a constitutional court. I am not. I was merely saying that other countries had those courts and that as we did not have one it was all the more vital that we underpinned our systems of parliamentary accountability to uphold our constitution in the most effective ways.

The core of the issue that we have been debating is the "previous treaties" issue, embodied in the interventions of the noble Lord, Lord Hannay, and the noble Baroness, Lady Symons, who raised—as has often been raised before—the question why. Why are we worried about this now and why are we trying to amend this treaty? Why are we critical of many aspects of it and why has the party for which I am speaking argued in favour of a referendum when we did not do any such thing for previous treaties? I gave one answer—the straw theory, as the noble Lord, Lord Hannay, put it. Of course, it does not have to be a straw by itself; it can be one in a very large bundle, as it is in this case and as the noble Lord, Lord Harrison, perhaps recognised. One more very large bundle is the thing that can sink the poor, wretched camel.

There are other substantial arguments, and the noble Lord, Lord Owen, reminded us of a very good one—namely, that after the Maastricht treaty an election was held. There was a general election. Are we being offered now another general election on this issue? If so, I think that my party would be quite happy to proceed.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

Is the noble Lord seriously suggesting that the 1992 election was held on the issue of Maastricht?

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

I am saying that the people had an opportunity at a general election to discuss and debate it very fully. Also, as my noble friend Lord Lamont reminded us, a referendum was on offer on the euro, although luckily, so far, it has not come to that. Later on we will want to know whether we can be sure that this Government, if they are still in office—which I do not think that they will be—will offer a referendum on the euro again.

It was a narrow point that we were trying to debate this afternoon. We are simply arguing that the Bill should be honestly described. The noble Lord, Lord Anderson, made much of the point that the other people of Europe do not agree with us—and I am not sure that he is right about that either. In fact, the latest independent poll from Open Europe found that 75 per cent of all people in the EU want a referendum on any new treaty that gives more powers to the EU. It also found that in the UK 83 per cent would want such a vote to be held. The majority in all 27 countries would want a referendum. So we are not quite as isolated as he makes out.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

With respect, that was not the point that I was making. Since the change of policy towards the European Union by the Conservatives, there are no natural bedfellows within the European Union, as evidenced by the problems of the European People's Party in the European Party.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

The noble Lord makes the wonderful universal error of confusing Governments and elite groups with the people of Europe, who, as we found with the last treaty, suddenly took rather a different view to that of their Governments. That is a very deep point and one that we will come back to again—whether we are talking about the Europe that elites want or the one that the people want. I think that they are very different.

The question of constitutional significance is at the centre of our amendment. As we have been reminded, Mr Straw, the previous Foreign Secretary—now, I think, he is the Lord Chancellor—said that if it was a question of a Foreign Secretary or President being introduced, that would be constitutional. This Bill does that. Someone else said that if there was a vast increase in ECJ powers that affected individual citizens, that would be constitutional—and this Bill does that. In a way, I rather admire those who have spoken in opposition to the amendment this afternoon, because I think that they are on the defensive. They are besieged in the Alamo fort and are fighting very hard by simply denying the facts and the truth, which everyone else in the wider world recognises. Every commentator and most national leaders throughout Europe know perfectly well what we are talking about.

Other issues were raised in the debate. The "Ode to Joy" has words by Friedrich Schiller and music by Beethoven. I have nothing to add, except that it is a wonderful sound. We can all enjoy it without the benefit of elaborate new centralising laws and treaties. We do not need a law to listen to Beethoven, thank you very much.

So we have come to the conclusion that it would be extremely wise to add these words now. As the noble Lord, Lord Alton, very wisely reminded us, there is a very great danger of isolating ourselves by our refined language and ideas from the deepest and best feelings of the British people and the people of Europe. That is an issue to which we will return. In the mean time, having noted the depth of feeling and the strength of our argument, which I think has swept right over the protestations and defence of the Government and the silent, or nearly silent, Liberal Democrat party, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 1 agreed to.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

moved Amendment No. 4:

After Clause 1, insert the following new Clause—

"Treaty of Lisbon: clarifying arrangements

(1) The Prime Minister shall, within no more than six months of the passage of this Act, lay before both Houses of Parliament a statement, detailing—

(a) those elements of the constitutional arrangements in the Treaty of Lisbon that required further negotiation and clarification;(b) any other Articles or elements of the Treaty of Lisbon that required further negotiation and clarification, subsequent to 13th December 2007;(c) what draft proposals he, or any other Minister of the Crown, has agreed with other EU members in relation to matters included in paragraphs (a) and (b) above;(d) what aspects of the arrangements envisaged in the Treaty are still not agreed and remain to be resolved in negotiation within the EU.

(2) In preparing such a statement, the Prime Minister shall have particular regard to—

(a) the powers and duties of the President of the European Council;(b) the detailed role of the President of the European Council and his relation to the Heads of Government of the nation holding the rotating presidency of the EU;(c) the powers and duties of the EU High Representative;(d) the detailed role of the EU High Representative and his relation to the Secretary of State."

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

Noble Lords will forgive me if I catch my breath after the last debate.

Our concern here is with the issues left over from the treaty negotiations, which still remain to be resolved, and how on earth they should be handled by our Houses of Parliament. We have learnt recently from a presidency document that an immediate range of issues is to be decided, such as the salary and role of the proposed EU president—and we will have many more amendments later on the foreign policy aspects of that matter; on the powers of the new Foreign Minister and his diplomatic service; on how those things fit together with a rotating presidency system; on the development of defence co-operation, which is a crucial matter; on the new powers to be handed to the European Police Force, Europol, and the prosecution service, Eurojust; and many other matters as well.

In the words of the Economist, dozens of questions are left unanswered by the treaty and many of them will give rise to fresh debates in future about the whole shape and nature of the Union. A misunderstanding needs to be cleared up in Ministers' minds about the whole nature of the European process. The EU is not, and never has been, a fixed arrangement with nicely delineated powers about who does what. Relationships are in perpetual flux. There is no single treaty that can settle matters for all time, as some enthusiasts seem to yearn for. One hears people say, "This will be the final settlement" and, "This will be the ultimate solution for Europe". That is the language of fantasy because that will never happen. I think that that explains why President Sarkozy is already talking about future integration and a working party that he wants to get started about the next stages in the integration and formation of the Europe that he wants to see.

Aside from that, the EU project—before it the EC project and before that the EEC project—has always proceeded by informal understandings and quiet arrangements. Some have condemned these as being by stealth; others have said they are simply moving around the political obstacles that would otherwise have stood in the way. Anyone who has read a very interesting book by Keith Middlemas—his brilliant book subtitled The Informal Politics of the European Union—will know that is what has happened, is happening and will continue to happen. That is the way the European system is going forward. We want it to go forward. in ways that are different from the centralisers and the old guard collectivists who still dominate the thinking of many people outside—and many of your Lordships, I fear—and on the left in European politics.

Parliament really should know what the new president's powers are and what his position is. There is to be a new Foreign Affairs Council as well as a General Affairs Council. It is very hard to see how that will work out. Will the new president sit on both councils? Will he chair both? Will he share a chair, which would be rather uncomfortable, with the rotating head of government president every six months? If the General Affairs Council is no longer to look at world affairs, what will the heads of government do when they meet if all the foreign policy and world issues are left to the new Foreign Affairs Council? Who will broker and help to resolve the endless differences between member states on external issues—not on all issues but on a great many—and on the EU's role in the world, which makes so dangerous the reliance on the EU partners to voice and promote our own interests? These are crucial questions for our own affairs, which we must have clarified.

We need proper parliamentary accountability in all this. We want to ensure from the start that Parliament is told and given a proper chance to debate and approve or reject what is likely to happen, and, indeed, what has been already agreed to by the treaties that Parliament has been asked to sign up to.

We have tabled amendments as proposed by the Lords Constitution Committee. We agree with its view and it agrees with ours. They would ensure that all the opt-in and opt-out activities, whether under previous treaties—I emphasise that—or under this one, are put to Parliament by the Government for approval. This is the first of a series of proposed changes aimed at maintaining and enhancing parliamentary accountability over what is being done in our name. They do not change the treaty but they control part of its impact, or should do so. Therefore, the Government should, frankly, accept them. Indeed, I have written here "So should the Liberal Democrats", to which I just have to add, "some hope". I beg to move.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

The noble Lord made a number of important points. It is absolutely correct for him to say that there are a number of blurry edges and unanswered questions. He very properly mentioned a number of them, including the salary, the role of the proposed EU president and of the External Action Service, and defence co-operation.

The noble Lord's argument for a six-monthly report is rather overtaken by the important points he made that the relationships are in any event in a state of perpetual flux. He talked about the informal politics of the European Union. I am sure that he would agree that in any constitution there is no settled position, like the final struggle in the great "Internationale". There is no final struggle. All constitutions are by nature dynamic; none are in fact static. We may be interested in parliamentary accountability, but that will not be done in one six-monthly report—it will be a continuous process. That is the important point about this. There will be constant modifications. We will be part of the debate which leads to those modifications. We are part of the European Union. We do not have bilateral relations with the European Union; it is part of ourselves.

Much of the development will depend on matters such as the personalities of the individuals who are there, the external matters that confront Europe and the challenges we face—for example, matters in the External Action Service, such as the pressures on our own budget in terms of the foreign diplomatic service and the extent to which we want to co-operate. That important point has been made in earlier debates by the noble Lord, Lord Wallace. There will be continuous modification. It is therefore impossible to reach an end-point.

It is important that we ensure an active role for national parliaments. I have acknowledged that there are questions about how the proposed role will work out in practice. In conclusion, the key fact is that we must ensure parliamentary accountability. There is a moving target and therefore there should be a continuous form of accountability.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Home Affairs

I preface my remarks on the amendment with a few remarks about how we conduct ourselves in Committee. We are in Committee. I hope that we will now be able to make progress in Committee style. The noble Lord, Lord Forsyth, is not in his place, but I think that he should have carefully read and absorbed the words of Standing Order 33 about asperity of speech. I felt that he was not only making a Second Reading speech in Committee, but raising the level of passion beyond what we should be doing when attempting to follow the words of the noble Lord, Lord Howell, and examining the Bill—that is what he said, but it has to be the treaty and its implications—line by line.

Perhaps I should also say a little about the intentions of these Benches. We strongly support continuing scrutiny of our engagement in the European Union. That is what this Parliament should be doing and what this Chamber has been doing rather well, and I hope will continue to do. We are very happy with the detailed work which committees of this House have conducted in examining the implications of this treaty. That is a little different from what we do, sometimes rather more messily, on the Floor of the Chamber.

I feel that the amendments are very unconservative. Conservatism, as I learnt about it, is about practice and pragmatism but accepting that politics flows; it is not about theories, structures and absolutes. It seems to me that the noble Lord, Lord Howell, is asking us to know exactly where we will end up before we have started. He says that what we need from this is proper parliamentary scrutiny. However, I refer him to the very wise words that he used when we discussed the previous amendment, when he said that he knew the intention was there but whether it worked in practice was another matter. I agree strongly with that remark, which he made about parliamentary scrutiny, but it is also true of how these new procedures will work. We do not yet know how the President of the European Council will operate. I think this is a better procedure for an EU of 27, moving from a situation in which for six months the Prime Minister of Malta will chair the European Council and then the Prime Minister of wherever else it may be will chair it.

This is a useful improvement for an enlarged European Union. The United Kingdom is in favour of the enlargement of the European Union and that has implications. Part of the argument for this treaty is precisely to deal with a European Union which has grown in the last decade from 15 to 25 to 27, and some of the adjustments are to allow for that. But how these various new adjustments will work in practice depends on who is appointed and how well they work with others. We do not yet know that. We have to avoid the politics of "stop the world, I want to get off" in this. Britain is involved in the European Union. Through our officials and sometimes through our Ministers, we play an active role in shaping the European Union. I very much hope that we will continue to do so. When this treaty is ratified, I trust that our Government—getting over their great hang-up about what Rupert Murdoch wants us to do—will play a very active role in shaping where we go from here. I hope that the Conservative Opposition will not spend too much time bumping along behind, trying to pull them back at every stage, so that we can continue to have active scrutiny and an open and honest debate at last about Britain's engagement in the European Union. For those reasons these Benches do not support these amendments.

Photo of Lord Blackwell Lord Blackwell Conservative

I support these important amendments. As a member of your Lordships' Select Committee on the European Union I was fortunate enough to discuss some of these issues when we visited Brussels. As other noble Lords said, it is clear that there is huge uncertainty and work still to be done on turning some of the institutional arrangements that are described in this treaty in very outline form into practical and settled arrangements. That matters, because the way in which those institutional arrangements develop has a profound impact on the way in which Europe will operate and the kind of constitutional settlement that it puts in place.

I want to dwell in particular on the relationship between the various presidents. We should remember that three presidencies will be concurrent in Europe: the new term-elected President of the European Council and the existing President of the European Commission, and there will still be the rotating presidency of the Council of Ministers. What is not at all clear is how those three concurrent presidencies will interact. One model would maintain that the national presidency—the rotating six-monthly presidency —should still be the predominant presidency as it represents the member states, and that the others should be the servants of the nation states with the president of the Council merely orchestrating the agenda as a kind of chairman of committees and the President of the Commission continuing to manage the legislature. Another view states that what we are creating here is more like the tiers of a presidential state where the president of the Council, who is elected for a longer term, acts like the President of France or the President of the US with a Cabinet around him and sets the agenda, and that the President of the Commission becomes in effect a First Minister or Prime Minister as the head of the Executive, in the same way as the Prime Minister of France relates to the President of France. In that model the rotating national presidency is merely there to arrange the venue and clean the floors.

How this turns out is a matter of substantial importance in the model of Europe that we are building. It is no accident that it is not clear, because there are differing views on what model different members of the European Union and different members within each delegation might want, as was made clear in the Select Committee's discussions. It is fundamentally significant that this House knows whether what is envisaged is indeed a French-type model of a president of Europe and a Prime Minister, with the rotating presidency kicked into the sidelines, because it has an impact on the constitutional settlement that we have just been discussing. In saying that this amendment does not go far enough, my reservation is that I think we ought to have this settled before the House and the country are asked to agree to this treaty. That ought to be one of the things we consider as we go through this debate. We should as a minimum ask for a report-back six months later to ensure that we have clarity on this.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

The noble Lord talks of the matter being settled, but does he agree that much will depend on the personalities who appear? For example, if the President of the Commission were a Delors and the other president were a former Prime Minister of Luxembourg—I have great respect for Luxembourg—there would be a certain dynamic between those two and the situation could be reversed. So how can it be settled? How can we know ultimately what that relationship will be?

Photo of Lord Blackwell Lord Blackwell Conservative

The noble Lord's intervention illustrates exactly the danger of not having it settled. The relationship between the President of France and the Prime Minister of France does not depend on which individual is elected to which office. Those offices are settled. If we have a Europe where the individuals who take those places can land-grab and turn the European Union constitution to their advantage, that is a very dangerous constitution for us to sign up to.

Photo of Lord Owen Lord Owen Crossbench 6:15 pm, 22nd April 2008

I seek clarification. I am afraid that I am not up to date with the procedures, but a report on European affairs used to be made to Parliament every six months. It seems to me that that vehicle would incorporate all this. More than most previous ones, this treaty has a very large area of important unclarified material. It is perfectly possible to take the view which has been argued, particularly by the noble Lord who served a very useful purpose as chairman of the foreign policy Select Committee in the House of Commons. However, you cannot narrow these things down; they are matters of practice.

This is a view with which I have a good deal of sympathy but, when looking at amendments to this legislation, the real problem, apart from these general well-meaning reports back to Parliament, is how to clarify the actual meaning of these words. This relates to a later amendment that I have tabled.

When she replied at Second Reading, the noble Baroness was very clear that there was no problem with the commitment to allow the European Court of Justice to adopt a new role in the European Council. In my view that is quite a big step and we cannot change it. But there is also a commitment in the legislation that the European Court of Justice will not involve itself in foreign affairs. However, the President of the European Council is definitely involved in foreign policy. The noble Baroness has the best of intentions as regards these commitments but I assume she means that, when dealing with foreign affairs, the President of the European Council will not be subject to the European Court of Justice and that will still be an area in which he will effectively be exempt. These wordings are very important. I hope that the Minister will put on record exactly the limitations on the European Court of Justice. In listening to the earlier debate, this is the issue that worries many people; the capacity of the European Court of Justice to expand the role of the European Union powers beyond that which the House of Commons and the House of Lords at various times under different Governments have fought to be the limits.

It is therefore really the main focus of parliamentary scrutiny and debate to set limits. I am sure that the honourable gentleman agrees—sorry, I mean the noble Lord; I am used to the other place, and seeing the same face makes it even harder—that it is important if we can to nail down these areas, and I particularly draw attention to the European Court of Justice. I ask the noble Baroness in preparing for these debates if she could be as precise as possible about the Government's understanding of the role of the European Court of Justice and where it is constrained and where it is not constrained. That would be very helpful.

Photo of Lord Tomlinson Lord Tomlinson Labour

I am very grateful to the noble Lord, Lord Owen, because he raised some interesting questions; but they are so interesting that they would not be covered by the amendment. The amendment is headed:

"Treaty of Lisbon: clarifying arrangements", but it does not clarify most of the important questions that were just raised by the noble Lord, Lord Owen. We have just agreed that Clause 1—a very simple clause of three lines—should stand part of the Bill, and we now have "clarifying arrangements" adding a further 21 lines after Clause 1, the total effect of which is to create more confusion, because those lines will raise more questions than they answer.

The situation is very clear—that we as Parliament hold our Ministers to account when they come back from Council meetings, and we will have the opportunity to ask every one of the questions that are listed in the so-called clarifying arrangements, plus any others that we have the ingenuity to think up. The amendment is unhelpful, and I will not support it.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

The noble Lord, Lord Tomlinson, has just epitomised the project of European Union; it is all right if we ask these questions when Ministers have come back from Council meetings after matters have been decided and there is nothing that this Parliament can do about it. That is one of the central complaints of the growing number of people in this country who do not want to continue with this project.

This is a very good amendment, except that I am afraid that, like the noble Lord, Lord Tomlinson, it shuts the stable door after the horse has bolted. It is not helpful to have a report in six months' time detailing these matters. We want the answer to all these questions before your Lordships reach a decision on the referendum and before the people are invited to vote on a referendum, if we reach that happy conclusion.

When the noble Baroness replies, could she answer some of the rumours, doubts and questions that are surrounding the Eurosceptic community in this country? One of those important rumours is that quite a lot of initiatives have already been agreed, or nearly agreed, and they have been put in the drawer of the Council in Brussels and hidden away from the people, particularly the British and the Irish people, who will have a referendum on this new treaty, until the treaty has gone through. Is there any truth in that?

Also, has an understanding or agreement been reached that no fewer than 10,000 British troops will in due course be committed to the new European army with its independent command centre in Brussels? It would be very good to have that completely denied. If not, have any troops been agreed?

Another interesting suggestion—

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Home Affairs

That is an interesting statement. Could the noble Lord, before we discuss the CFSP and defence dimension, provide noble Lords with the exact source of the statement that he has just made?

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

Of course. At the moment, I was merely posing a question. When we come to that, I will be happy to provide the noble Lord with my source.

Another rumour is going around of borderless healthcare. Has that been agreed and put in the drawer? Is there any prospect of this treaty leading to that? The first of those suggestions is something of an anathema to what the noble Lord, Lord Wallace, would call the right wing in this country. The second suggestion of borderless healthcare, where we could all wander over the health systems of Europe checking in as we wished to avoid the appalling state of the National Health Service in this country, might appeal to this country's middle classes, but I understand it is fiercely opposed by the trade unions.

The other question that I wish to put to the noble Baroness is on tax. Indirect tax is covered by the treaties of Rome, but direct tax is not covered in the present treaties as they stand. That has not stopped the Court invading corporation tax or reaching over 120 judgments in favour of national companies—

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

I just want to help the noble Lord. I can give the source; it is the Open Europe briefings. I have them all, and they include the point about the contribution of 10,000 troops. It is completely untrue, but it is in that briefing.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

At the moment, I cannot remember whether that was my sole source, but I will come back to it. That rings a bell. We would like to know, more than that, what further arrangements there are for military integration and the advance of the French dream in that area.

I think I was dealing with tax. Indirect tax is in the treaties; direct tax is not. I think I was saying that the Court has already invaded corporation tax to the detriment of national exchequers and to the benefit of finance directors and shareholders of international companies. I gather that Mr Barroso has been in Ireland recently, assuring the Irish that they need not worry that this treaty will lead to any change in their tax system, which has done so much to improve the state of their economy.

Those are the sort of specific questions that we would like answered now. I put it to the mover of the amendment that it would be very helpful to have the answers to all these questions before we vote on a referendum and before the people vote on it. While I am on the subject of the noble Baroness answering questions, I was remiss when she finished her answer to the previous amendment in not pressing her on the legal status of the flag and the anthem, what areas of our national life Brussels cannot negotiate on and—most importantly, and I hope a question that finds sympathy with other noble Lords—an index to the treaty of Lisbon.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat

Perhaps I can help to answer one of the questions that has been asked about the powers of the European Court of Justice over common foreign and security policy. I draw noble Lords' attention to Article 275 of the Treaty on the Functioning of the European Union. It states:

"The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to Acts adopted on the basis of those provisions".

I add for the sake of completeness:

"However, the Court shall have jurisdiction to monitor compliance with Article 40 of the treaty on European Union"—

I think that is the one that says that what is done under CFSP should not impinge on Community competence—

"and to rule on proceedings ... reviewing the legality of decisions providing for restrictive measures".

I think that that refers to the rules on the blacklisting of terrorist organisations, where the Court of Justice does have competence, which it is increasingly exercising. That very restricted competence in the second pillar of the CFSP for judicial review by the Court of Justice is spelt out in Article 275 and is very limited.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP 6:30 pm, 22nd April 2008

I am most grateful to the noble Baroness. We will come back to this on Amendment No. 14.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

Like the noble Lords, Lord Blackwell and Lord Pearson, I am a bit concerned that the questions in this amendment are being asked after the horse has bolted, so to speak. Surely these are all questions that need answers before we agree to ratify the treaty. Once the treaty is ratified, they can do just as they damn well like. I say to the noble Lord, Lord Howell, that the questions are superb. They have been very well thought out. They need to be asked, and they need to be answered—but before the treaty passes from this House. I hope we can get some of the answers.

I should like to put one or two other questions to the Leader of the House because many serious rumours are circulating and they worry people, not only Euro-sceptics but others as well. One of them is that there is a move for the amalgamation of the posts of President of the European Commission and president of the Council. The Leader of the House is shaking her head, but that is one of the rumours and it is a very strong rumour indeed. If such a post were to be created, it would be a very powerful post indeed. Therefore, if the noble Baroness can give us an assurance that there is no truth in the rumour and that the British Government would oppose and veto it if it were ever brought forward, it would be extremely helpful.

Photo of Lord Tomlinson Lord Tomlinson Labour

If the noble Lord looks at Article 1(18) of the treaty he will find it clear that the President of the European Council must not be President of the European Commission. That is explicit. It is clearly laid down and is there for anyone to read. There is total clarity.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

We read all sorts of things and we know that sometimes they do not mean exactly what they say. If I can obtain an absolute assurance, not only for me but for many other people as well, that there is no truth in this rumour, it would be helpful for our further debates.

Then we come to the question of the powers and trappings of the presidency. I mentioned to the Leader of the House—who was very kind to see some of us yesterday—that a lot of suggestions were going around that the post will be made very powerful and that the president will have a plane, a staff of 36, a fleet of limousines and a palace. That seems to me to going over the top. She said that that was rubbish, and I took her word that this was mere rumour mongering by people opposed to the whole concept. I can assure noble Lords that it was not me who sent the rumours around. But this morning, lo and behold, when I looked at the EUobserver, I found that the European Parliament itself is concerned about it. This is what was said:

"'The treaty is very clear about the duties [of the president],' the head of the parliament's budget committee, Reimer Boege, told EUobserver, noting that it says the person can have an administrative role, 'but not take over an executive function.'".

That is very good, and fortunately—as far that report is concerned—the European Parliament can control the purse strings. I should therefore like to know whether Her Majesty's Government agree with the European Parliament, or at least with the head of the budget committee, that the role is administrative and will not be executive, and whether Her Majesty's Government will see to it that that situation remains. If they do not, the post of president will grow and grow until it supersedes and overrides the Heads of State or Government in the nation states.

I hope the noble Baroness will be able to give assurances on the matters I have raised. They are current; they are circulating; and they need to be put in proper and truthful context.

Photo of Lord Waddington Lord Waddington Conservative

This amendment highlights a highly unsatisfactory situation. I could not possibly vote for it, for some of the reasons that have already been advanced, for instance by the noble Lord, Lord Tomlinson. All the amendment does is highlight some of the most unsatisfactory aspects of the agreement signed up to by our Prime Minister without giving any hint of a solution to the problem that has arisen as a result of his signature. The amendment does not for one moment, for instance, provide for Parliament's agreement to changes that may occur after the treaty has been ratified. It cannot and it does not.

The real question, therefore, is why did the Prime Minister sign up to the deal without agreement being reached on all the matters listed in subsection (2) of the proposed new clause? Why on earth did he sign up to an agreement without,

"the powers and duties of the"— new-style—

"President of the European Council" being properly defined? Surely that is a matter of the most immense importance.

If you are going to have a semi-permanent President of the European Council, it is inevitable that the balance of power between the President of the Commission and the President of the European Council will change from the situation as it is at present. I quite understand those who say that, as a result, certain changes in the powers of the president will have to come about. But for goodness' sake, we are supposed to be giving our approval to an agreement. If we are asked to sign up to an agreement that leaves all of these important matters undefined, it is a pretty ridiculous state of affairs.

Why on earth should we be asked to ratify a treaty without being told what is,

"the detailed role of the President of the European Council"?

What is his,

"relation to the Heads of Government of the nation holding the rotating presidency of the EU"?

Goodness me, why on earth should we ratify this treaty without even being told what will be,

"the powers and duties of the EU High Representative"?

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

Is the noble Lord not asking in fact for a constitution? Looking at the President of the United States, the President of France or the president of any of the countries where these various rumours or mirages may be built up, you see that they have a constitution. There is also the high representative, and therefore there will be an evolving role. However, is not what the noble Lord asks for the complete opposite of normal Conservative philosophy, as the noble Lord, Lord Wallace of Saltaire, said? It is moving us to demand something rather like a treaty signed in Philadelphia in 1787.

Photo of Lord Waddington Lord Waddington Conservative

I do not want a constitution but even less do I want half a constitution. If we are to have thrust on us all these constitutional changes of great importance, we should obviously know what they really mean. That is the answer to the noble Lord's question, and we should certainly be told what the powers and duties of the EU high representative are to be. If we are not to be told that, I am blessed if I can see why we should be asked to ratify this treaty. It seems odd in the extreme that we should be asked to ratify a treaty which leaves all these very important matters entirely undecided.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

Again, we have had a very interesting and important debate. I begin where the noble Lord, Lord Waddington, ended. I think that close study of the treaty will demonstrate that these questions are not left unanswered in the way that he implied. I know that, like me, the noble Lord had a late night last night but I hope that he will be able to go back through the proposals in the treaty and see that some of the detail is more coloured-in than he indicated.

In our deliberations on this group of amendments, I think we all agree that it is very important to continue the current scrutiny and, as the noble Lord, Lord Grenfell, says in his report from the European Union Committee, to consider how best to take forward some of the proposals in the treaty—particularly, as I indicated earlier, in relation to the role of Parliament. As the noble Lord, Lord Owen, suggested, we have a system for reporting back to Parliament. It takes place after every European Council meeting, although I accept that doing so after the event is not necessarily what noble Lords are seeking. There is correspondence with the committees before every Council of Ministers meeting and there is a six-monthly White Paper, to which I think the noble Lord, Lord Owen, referred, on forthcoming developments in the European Union, normally looking ahead to the next presidency. Of course, all forward-looking work programmes—the five-year programme and annual work programme from the Commission and so on—are deposited so that they can be scrutinised. Speaking from experience, I can say that Ministers are regularly invited to appear before Select Committees and sub-committees in order to describe and discuss particular points of interest of aspects of negotiations that are under way. Those discussions—again, I speak from personal experience—do not last for minutes but for hours as we take great note of, and scrutinise, the issues that are currently before the individual councils. I pay tribute to the members of the committee whom I have appeared before.

I take issue with a proposition underpinning the amendments which suggests that there are articles that require further negotiation. That is not the case. No articles in the treaty of Lisbon require further negotiation. I have already indicated that I spent three days in Brussels during the recess, when I discussed with the head of the Council's Legal Service, Jean-Claude Piris, the Secretary-General of the Commission, Catherine Day, and others their views on the treaty and on the future. What was striking about these discussions was that not only did these people think that the treaty addresses far better some of the questions that have reasonably been raised about how to ensure that the European Union delivers for its citizens but they also believed that it sets a proper and, they would argue, lasting institutional framework. There was no appetite at all for further treaty negotiations.

I turn to the specific points that have been raised. I am grateful to the noble Baroness, Lady Ludford, who, as a Member of the European Parliament, has great experience of the European Court of Justice. I agree with the noble Lord, Lord Owen, that this is a very important issue, and later we will be able to have much chunkier discussions about the ECJ. I know that there will be a lot of interest in aspects of foreign policy, about which the noble Lord, Lord Owen, is particularly concerned, and justice and home affairs issues with the collapse of Pillar 3, and there will be an opportunity to discuss the opt-ins for the UK more fully. Perhaps I may write to the noble Lord, Lord Owen, between now and the next Committee sitting, with a copy placed in the Library for all noble Lords who have participated in the debate, setting out what I consider to be the role of the European Court of Justice. I do not suggest that in order to evade debate—far from it—but to provide a backdrop to the discussion which the noble Lord, Lord Owen, in particular, and others can use as a template in taking our discussions further. I should be very happy to do that if it would be helpful. I see several noble Lords nodding, so I shall ensure that it is done.

I realise that I did not answer the point raised by the noble Lord, Lord Blackwell, about the two articles that are different. The evidence that I have is from Essex University, which talks about 35 differences between the two treaties. I do not have the documentation in front of me and so I propose to share it with the noble Lord and take it from there. I am conscious that he was very specific about articles and I have been very specific about differences.

Photo of Lord Blackwell Lord Blackwell Conservative 6:45 pm, 22nd April 2008

I am very grateful to the noble Baroness. That would be very helpful.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

It could be circulated.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

That would be even better. The noble Lord, Lord Pearson, asked specifically about an index. I wonder whether he has seen the comparative table of the treaties. I know that it is not an index as such but I found it incredibly helpful, and I draw noble Lords' attention to the fact that it is in the Printed Paper Office. It goes through each of the articles and relates them to the previous treaties, although it does not do what I think the noble Lord was after. Article 26 refers to the ECJ and Article 27 refers to the Council, and so on. We do not have an index of that kind—at least, if we do, I have never seen one—but I hope that it will deal with some of the issues that noble Lords have.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

I was aware of the document to which the noble Baroness refers but I was simply asking for an index such as that printed in the British Management Data Foundation's analysis of the treaty of Lisbon. That index runs to several pages. Under A one can look up, for example, administrative co-operation, advisory bodies, agricultural and animal welfare. Everything covered by the treaties is in this index and that is what we need, with a page number and an article number relating to the new treaty of Lisbon. I am sure that in the noble Baroness's department there are many people who could run that up overnight. It would be enormously helpful to your Lordships.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

In those famous words, "I shall see what I can do", but I am not sure about running it up overnight. That sounds like an interesting proposition, but the noble Lord makes a point of sorts. I shall come on to that document in a moment because it relates to something else that I want to mention. The flying of flags is covered by regulation in this country under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. In response to a specific question asked by the noble Lord, for the avoidance of doubt, neither the European Union flag nor the anthem have any legal status in the UK or in the rest of the European Union.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

They do not lack status in the United Kingdom. I am aware of the legislation that the United Kingdom passed to allow the flag to be flown here in parity with national flags and so on. I also asked where that legislation is rooted in European legislation. Is this just one of those areas that are part of the doctrine of the occupied field that the European Union went into, inventing a flag and flying it? It has been withdrawn from the constitutional treaty of Lisbon. As I understand it, 16 countries have signed a document saying that they want it to be their official flag. What is its legal position? Does it have a legal basis? The same questions apply to Beethoven's "Ode to Joy".

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

It does not have a legal status. That's it—it does not have a legal status, full stop.

The noble Lord, Lord Stoddart, asked me a question. I was waiting for someone to ask me about the private jet, lots of staff and so on. When I was in Brussels this was running as a news story, that there had been a discussion on a Tuesday evening, I think, where a jet and lots of other wonderful things had theoretically been discussed. Our permanent representative there—our ambassador, if I may call him that—was at the dinner and there was no discussion of that kind. There has been no suggestion of a private jet, no proposals or discussions about the residence and the salary and no formal discussions about the precision of that job, though obviously there have been informal discussions on the respective responsibilities of the different people defined within the treaty—for example, the President of the Commission, the high representative, the rotating presidency and the President of the European Council, which are exactly the issues raised by Members of the Committee here. As I indicated, the briefing about the 10,000 troops is not true. As we go through the line-by-line scrutiny, issues such as defence and other matters will be raised, and I have no doubt that the noble Lord will have an opportunity to have any myths exploded or, who knows, any clarification or confirmation that may be appropriate.

There has also been confusion about whether the president of the Council and the high representative could be a merged job. I hope that the noble Lord, Lord Stoddart, is reassured about that—that that is not allowed under the treaty. A specific reference says that if you hold office for the Commission you cannot hold any other office. I think the problem goes back to the glorious blue book. I must again thank the noble Lords, Lord Pearson, Lord Willoughby de Broke and Lord Stoddart, for presenting me with a copy of the book. On page 36 of the opening section, under "President of the European Council", it states:

"A clause in the earlier drafts of the Treaty specifically excluded the President of the Commission from becoming the President of the European Council. However, this clause has been removed ... and there is nothing in the text of the Treaty", of Lisbon,

"to prevent the President of the Commission also becoming the President to the European Council".

That is not true; they have it wrong in the book. I hope that the person who wrote it, whom I have met, will get in touch and have it corrected. It is absolutely clear in the treaty—with luck I shall find the right bit—that if you hold a Commission role you cannot hold another role. So the vice-president of the Commission, who is also the high representative, cannot become president of the Council; the president of the Commission cannot become president of the Council; and the president of the Commission cannot become the vice-president of the Commission, because you cannot hold two roles.

Photo of Lord Willoughby de Broke Lord Willoughby de Broke UKIP

This is a self-amending treaty under the passerelle arrangements, which we will discuss later. Is it not conceivable that the Council could vote by unanimity to make this a matter for qualified majority voting? Therefore, there could be a double-hatter.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

The UK Government do not agree with double-hatting or allowing two of those three positions to be put together. A change would therefore require the UK to do something that it does not want to do. In theory one could make a decision to go from unanimity to QMV and therefore arrive at another conclusion. I lose the plot here a little. I have worried about why noble Lords think that the two jobs could be together, but I think it is just the way that the provision reads. I make no slur on it, but it is the way that it reads.

Photo of Lord Owen Lord Owen Crossbench

One of the reasons why this has caused concern is that the Dutch Government—on exactly the same wording as is currently in the treaty, it has not changed—have told their parliament that they believe it would be possible to double-hat the president of the Council and the president of the Commission. I will be very happy to give the noble Baroness the reference to that. The Dutch are international lawyers of some distinction. I welcome the British Government's position and I think that their judgment is correct. I am worried about the reference to the ECJ and a creative interpretation of the power.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

I have the consolidated text before me. If I look at the Treaty on the European Union and go to Article 17(5)—this is for the connoisseurs—and then go to Article 244 in the Treaty on the Functioning of the European Union, I see that Article 245 says:

"The members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not".

It is pretty clear to me.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

It continues:

"Members of the Commission shall neither seek nor take instructions from any government or from any other body".

That is Article 118, which seems to add substance to the initial article mentioned, Article 219(8).

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

I am very grateful to my noble friend. As far as we and our lawyers are concerned, it is very clear. I cannot speak for the Dutch Government and their interpretation.

Photo of Lord Waddington Lord Waddington Conservative

I do not have the page before me, but in the EU Committee report which we debated at the same time as Second Reading there was a reference to a Commission official saying that double-hatting was not an issue at present, but that it might well become a live issue in the near future. I seem to remember that that was said in the report.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

I will have to check whether an official said that. I am going, first, on the conclusions of the committee, regardless of what evidence was put before it—and there was much and varied evidence; secondly, on what is in the treaty and the consolidated text which tells me what it would look like if this is ratified; and, thirdly, on how the legal interpretation will be taken forward. I am keen to make progress, if I may.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

I say on the basis of a lot of experience that you do not have to believe every word that a Commission official says.

Photo of Lord Blackwell Lord Blackwell Conservative

According to the passage that the Minister read out, the high commissioner for foreign affairs is, as I understand it, a member of the Commission, but is also double-hatting as the high representative. How is that different from the president of the Commission also being the president of the Council? Why does it work for one but not for the other?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

It does not really work for one. The proposal is that we have a high representative who becomes the vice-president of the Commission with very specific functions. That is a defined role within the treaty which is vested in one person. I was being asked whether one could then take the other roles and combine them into one person and one role. The answer which is given in the treaty is that—for good reasons, with which I am sure the Committee would agree—a member of the Commission cannot take on both roles. It is not possible. Noble Lords were specifically concerned that we would end up with an amalgam of these positions. Noble Lords quite reasonably fear that it would be a very powerful figure who would do a huge variety of things. I argue that it would probably be an impossible job in any event. But it is not possible under the treaty.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

Any future double-hatting would require a specific amendment to the treaty that is agreed by all national Governments.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat

As I am, as the Minister pointed out, an MEP, I should have declared an interest. One safeguard against double-hatting is the right of the European Parliament to elect the president of the Commission. I can never see the European Parliament agreeing to double-hatting.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

Perhaps I may make a suggestion. It seems to me that there are so many different types of double-hatting. It has been obvious on the Foreign Affairs, Defence and Development Policy Sub-Committee that many jobs around the world require some double-hatting. As there are special cases such as Kosovo, Macedonia and so on, we need double-hatting. The president of the Commission and the President of the Council of Ministers could be described as double-hatting in the same sense as other kinds of double-hatting. Perhaps we need a note about the different types of double-hatting, because we are talking about all sorts of things at once and it is not helpful.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

I think I am grateful to my noble friend. The issue he raises is absolutely right. In a sense, we are discussing a concept which means different things to different people. The principle behind the concerns on this issue is the amalgamation in one person of all of these different responsibilities. I hope that I have at least in part laid this to rest, by reference back to the treaty. I hope noble Lords will take the chance to look at that.

Photo of Lord Owen Lord Owen Crossbench

On page 58 of its third report of Session 2007-08, on foreign policy aspects of the Lisbon treaty, the House of Commons Foreign Affairs Committee states that,

"it is regrettable that the Lisbon Treaty does not state explicitly that the new European Council President may not simultaneously hold any other office".

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

Indeed, and that rather goes back to what is in this as well, which is why I went back to the treaty and the consolidated text. The wording in the treaty on the functioning of the European Union is what I read out, and which was supplemented by my noble friend Lord Anderson. The wording of the treaty is in fact what we can go back to. I fear that there has been a lot of discussion about something that can be proven by simply going back to the treaty, which is explicit. Nothing I have read has moved me from that opinion, but if noble Lords can prove differently, that could change.

I shall move to the issues that have been raised in the amendment and perhaps put a little flesh on the bones or, in my new description, colour-in a bit some of the questions raised about the responsibilities of the roles. Amendment No. 4 focuses on the powers and duties of the President of the European Council and the post of the high representative, which are clearly set out in the Lisbon treaty. I shall go through quickly what it says about the role of the full-time president of the European Council, as the noble Lord, Lord Waddington, reasonably wants to know what the job is. The treaty states:

"The President ... shall chair and drive forward its work ... ensure preparation and continuity of the work of the European Council working in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council ... shall endeavour to facilitate cohesion and consensus ... and present a report to the European Parliament after each of the meetings of the European Council".

At that level and capacity the president shall,

"ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative", and,

"shall not hold a national office".

That is the job description.

I accept that the detail on what the person will do on a daily basis is not in the treaty, nor would we expect it to be, but it gives us part of the colouring-in on what the role is meant to be. Noble Lords may not agree with the role but as my noble friend said, while the rotating presidency might be beneficial in many ways, it creates issues of continuity in some of the extremely high level negotiations that take place. We shall talk in more detail later about the role of the president. In discussions with the European Union, President Putin of Russia has met 16 different presidents of the Council because of the changeover, many of whom will have had different priorities because of their status. They are running their own countries as well, so when President Sarkozy becomes president of the Council he will also be running France. That is an arduous additional responsibility for many, and I am delighted that the European Union has decided to move to a much more sensible way of taking the matter forward while ensuring that it is done properly, the person is appointed correctly and that it is for two and a half years, plus two and a half, making a maximum of five years.

Within the text we also have the high representative's role concerning the EU's common foreign and security policy, contributed to by proposals to that policy, but he will carry it out as mandated by the Council. The same applies to common security and defence, and he will preside over the foreign affairs council. Article 94E of the treaty sets out the high representative's role as one of the Commission's vice-presidents and his responsibility for aspects of external relations and for co-ordinating some of the external action. This is meant to be a consolidation and a bringing together of the different aspects of how the European Union operates externally. I am sure that noble Lords will see that that is of huge potential benefit.

Amendment No. 164 specifically looks for clarification on a number of questions around the full-time president's role. Methods of election and terms of office are clear from the Lisbon treaty, which states:

"The European Council shall elect its president by a qualified majority for a term of two and a half years, renewable once".

It is explicit that the president of the European Council,

"shall not hold a national office".

There is no provision regulating previous occupations of candidates but they certainly could not take up that role and currently hold a national office. It is equally clear that the roles of the president of the European Council and high representative cannot be duplicated. It is clear in the text that the president of the European Council should,

"ensure the external representation without prejudice to the powers of the high representative".

Noble Lords have rightly indicated that the high representative brings together the current high representative introduced in Amsterdam and the Commission For External Relations. As I said, it is an important move. The Foreign Affairs Committee in another place concluded that,

"the new post of High Representative of the Union for Foreign Affairs and Security Policy has the potential to give the EU a more streamlined international presence and to contribute to the more coherent development and implementation of external policy. We further conclude that it is clear that the High Representative is there to enact agreed foreign policy".

Those words "enact agreed foreign policy" are very important in the context of the position—executive or administrative. The high representative is not in that context a policy-maker appearing on the stage as it were to represent the 27 nations. It would be an agreed mandate.

The Select Committee on the European Union report on the impact of the treaty similarly concluded that the creation of a high representative foreign affairs and security policy by the president of the Commission represents an important institutional innovation of the Lisbon treaty, which could have significant impacts on the way in which the EU formulates and implements external policy. In the light of evidence the post could bring additional coherence and effectiveness to the EU's external action. The questions relating to the powers and duties of the president and high representative are clearly answered in the treaty and I do not accept the argument that the amendment seeks to put forward.

Amendment No. 155 requests that we lay a report on how the provisions on the high representative and external action service differ from those in the treaty establishing a constitution for Europe. It is not necessary. The Lisbon treaty does not change the mandate for the high representative, including the provision that he be supported by the European external action service drawn from existing foreign policy services of the Council secretariat, the Commission and member state secondees.

The Government supported these reforms as sensible improvements to the structures for implementation and we continue to support them in the Lisbon treaty. We secured the deletion of what we regarded as a misleading title: Union Minister for Foreign Affairs. The new title makes it absolutely clear that the high representative will represent the agreed views of member states. He will not in any sense be a Foreign Minister.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

Will the Minster clarify the position of the high representative in relation to agreed foreign policy matters that may involve the United Nations? Would the high representatives be able to speak at the UN or would that policy be put by one of the permanent representatives to the UN Security Council?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

It will not affect the relationship with the Security Council. As happens now with Mr Solana there are occasions when the EU speaks at the UN. In so doing the high representative could speak only on agreed European Union policy. He could not speak in any other context. He cannot make policy or determine changes in policy. He can speak only when there is an agreed policy. If there is not an agreed policy in which all member states, including the UK are agreed, the high representative could not speak on that policy. It would be for the UN to determine if it wished him to do so. I hope that that is clear.

Obviously the posts have yet to be filled. We have yet to ratify the treaty so there are issues about its implementation. Some preparatory technical discussions have taken place under the Slovenian presidency, which is normal practice in any legislation that I have been involved in. You make the preparations but that should be done only on the basis of not pre-empting decisions that would be reached. When there have been technical issues or developments, details that we have had available have been given to the Select Committees, as we would be expected to do.

I think the real issue behind all this is how we make sure we are kept in touch with what happens next, not in terms of negotiations on a treaty but on implementation, particularly around these rules. My honourable friend Jim Murphy, the Minister for Europe, has today written to the noble Lord, Lord Grenfell. I shall not read out the whole letter—it is hot off the press, and I hope the noble Lord has actually got it—but I will quote from it and will make sure that noble Lords get a copy of it and that a copy is put in Library.

"There are a number of implementation issues to be decided before the Treaty enters into force. Preparatory technical discussions in some areas have already begun under the Slovene Presidency. Whilst it is only sensible to ensure the EU is ready to implement the Treaty - if all countries have ratified - we have made it clear to and agreed with our EU partners that no final decisions can be taken until ratification is confirmed ... I wish to re-affirm to you that the Government will do its utmost to keep both Houses informed, across the full range of Treaty Implementation issues through Ministerial contact before any discussions of implementation issues at European Council and sectoral EU Ministerial meetings".

I shall pass on the full text, which goes into some detail about the kinds of things that are being discussed, and I hope noble Lords will find it of benefit.

As I have indicated, some preparatory work has been carried out by the Council legal service. When I met Jean-Claude Piris, the head of the legal service of the Council, in Brussels, he was clear that it was simply to allow the Lisbon treaty changes to be given effect smoothly and that nothing would be done that would pre-empt ratification.

We will have a chance to debate the issues concerned with the role and function of the external action service later because there are amendments that will enable us to do that.

Photo of Lord Dykes Lord Dykes Spokesperson in the Lords (Europe), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Cap Reform), Environment, Food & Rural Affairs

As the noble Baroness the Leader of the House was enunciating those propositions about the terms and conditions of employment, in a way, of the high representative and the Commission president, I was reflecting on them in the overall context of all the member states and the process of ratification. I believe that eight countries have now ratified the treaty and a bunch of nine countries is to come soon. Then there is, presumably, the Irish referendum and the referendums in the summer and the autumn, finishing with Sweden in November. It is a long process, and it would be quite improper for any specific terms or conditions to be laid down by anybody, whoever it might be, even the Commission or the Council Ministers, in terms of draft conditions on any of those matters until full ratification has occurred.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

The noble Lord is absolutely correct; it would indeed be improper, and we have made that clear. From discussing the issues with some Council officials working on this and with the Commission in Brussels, I can say that there was no suggestion of doing anything like that. On the other hand, as the noble Lord would accept, with a possibility of ratification towards the end of the year and the treaty potentially coming into force at the beginning of next year, there is lots more to do. We will not bring it all in at once, but none the less it is important to work out how the process would take place. We have endeavoured to keep in touch with the Select Committees here on the technical issues, and we will make sure that we continue to do that. As the letter of my honourable friend Jim Murphy indicated, we will make sure that we keep people in touch with that. It does not preclude debates in your Lordships' House or another place on specific issues concerned with it.

Photo of Lord Roper Lord Roper Liberal Democrat

It might help the Committee to know that Sub-Committee C of the European Union Committee is going to be holding a short inquiry on the implementation of the sections of treaty dealing with external action and hopes to be able to bring a report to the House if not before the summer then in time for us to debate it when we come back in the autumn, which is probably when the decisions will be becoming ripe in Brussels.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

I am grateful to the noble Lord. I am sure that that will be replicated in other sub-committees of the Select Committee and in another place.

I shall finish by going a bit further on some of the issues relating to the external action service. The technical discussions relate to the implementation of the provisions in the Lisbon treaty. Article 13a states:

"In fulfilling his mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. The organisation and functioning of the European External Action Service shall be established by a decision of the Council".

The detailed composition of that service will be agreed by the member states by unanimity following the entry into force of the treaty. At Lisbon, member states agreed a declaration that preparatory work should begin as soon as the treaty is signed for the reasons that I have given, but I have already indicated that no big decisions are to be taken.

It is not a new bureaucracy. It will be drawn together from the Council secretariat, Commission services and member states' representatives structured through secondments. As the Select Committee noted, the creation of an external action service is an important institutional innovation of the Lisbon treaty. The service is intended to provide the high representative and the EU with analysis and support as well as to improve the consistency of the EU's representation in third countries and at international organisations. There will be no detailed discussion on the composition and function and no decision to launch until the treaty is in force and the decision is taken by unanimity. There will be discussions over the next two months. The presidency envisages further discussions, including about the scope of the general affairs council and the foreign affairs council, the list of council configurations and the role of the internal security committee. As I have indicated, we intend to keep Parliament updated on those issues.

I hope that that was a colouring-in exercise about what the functions and roles will be. I found it extremely useful to understand noble Lords' concerns. I do not see the need for the amendments that have been tabled. I hope that noble Lords will accept that the Government's clear intention is to keep the House, and particularly the Select Committees, up to speed with what is happening. I hope that on that basis the noble Lord will feel able to withdraw his amendment.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP 7:15 pm, 22nd April 2008

I hope I have not missed the noble Baroness's reply in her answer, but I think she dismissed the idea of United Kingdom troops being committed to the EU army and for that we are, of course, grateful. I think she said that there is no basis in European law for the European flag or anthem. I am not sure that I heard her this time dismiss the rumour that borderless healthcare is on the way.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

There is a proposal for a directive on healthcare, but it is nothing to do with the Lisbon treaty. If the noble Lord will forgive me, I shall write to him in more detail about it, but it is nothing to do with the treaty. It is a separate proposal that is running its way through Brussels in the usual way.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

There is also the question of whether the treaty could lead to the harmonisation of direct taxes. Finally, I think the noble Baroness said she would write to me about those areas of our national law upon which Brussels—the European Union—cannot act.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

That is an almost philosophical debate, which is why I was going to save it for the next big debate we have, in which the noble Lord will play a leading light. I am sure he will because he has played a leading light in every debate we have had so far. There is an interesting discussion to be had about when the European Union, member states, the Commission and so on put forward proposals for areas to be discussed and deliberated. We have just had a brief discussion about healthcare, and noble Lords will know that there were proposals at the European Council that my right honourable friend the Prime Minister went to last time that we feel particularly concerned about; for example, proposals to do with climate change and international issues. Ten years ago, those issues might well not have been on the agenda at a European Council, but I would argue—and I suspect the noble Lord might agree with me—that they are issues that need to be tackled internationally, not by an individual state. They demonstrate that agendas in Europe change depending upon the issues coming forward, many of which increasingly require international, certainly Europe-wide, responses. It is therefore not a simple question of saying that these are the areas that would never be discussed. Another example is that issues to do with banks and financial institutions have become more prominent of late, but would not necessarily have been on the agenda some years ago.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

The noble Baroness would not put direct tax into that category, would she? Can she assure us that there is nothing in the intention of the European project to extend its influence over direct tax and tax harmonisation?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

I am always hesitant to say anything to the noble Lord when I do not quite know his source. Often in these discussions, a particular issue is bubbling away. Healthcare was a good example. If I had simply stood up and said, "No, we are not doing anything on healthcare", that would have been factually incorrect. It is nothing to do with the treaty, but there is a proposal on healthcare. I know of nothing to do with taxation, but I want to check—which I will in the break—before I say categorically, "Never, no, never", on anything to do with tax; not direct tax, of course, although the noble Lord may be quoting from a source that I have not yet seen.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

I think that it is high time that we gave the noble Baroness a break. The sheer length of her exposition is demonstration of the enormous complexities of what we are dealing with and the vast range of unfinished business that is implied—which, contrary to the assertions of the Prime Minister, will lead to more institutional change, more constitutional change and more treaties, probably in the next few years, certainly within the next five-year period.

I admit that the amendment is extremely limited in scope; and intentionally so. It was simply aimed at opening the door to a variety of issues, which has been opened wider, quite rightly, by some of your Lordships in very interesting comments. I hope that it is not facetious to say that it is possibly better to open doors before you try to go through them. That is what I was seeking to do by moving my amendment. When we open the door, we immediately find a sort of goulash or pot pourri of issues, difficulties and matters to be negotiated here, there and everywhere about where power is going, who is going to hold it over us and how it is to be administered and called to account. All those things are left rather in the air.

Two aspects came out in our debate. One was, frankly, not dealt with in the amendment. As I said, that is the wider question, which will come up again and again. We are moving to a scene in which, with the collapse of the third pillar, a vastly wider range of issues come within the purview of the rulings—apparently, I am not allowed to call them judgments—of the European Court of Justice. We will want to think about the mechanisms by which Ministers can interpret to Parliament the effect that those rulings—which may lie well outside what appears to be delineated in the treaty—will have on our laws, our behaviour, our lifestyle pattern, budget and all the rest. We will need to think very hard about that. That is coming up in later amendments and we must all think about that very carefully.

The point is that the ECJ has become what the noble Lord, Lord Wedderburn, who is not in his seat, has called a creative court. It is a court that does not merely administer or seek to make judgments on existing laws, but seeks to make new laws and to interpret existing laws in wider ways. That is now being spread right across areas of home affairs and justice and may even intrude, despite what the treaty says, into areas of common foreign and security policy. We will have to see, but it is highly likely that it will. Some of our debates will be able to demonstrate that that is a possibility—even by interpreting, or trying to interpret, what we all recognise to be the inaccessible language of the treaty.

That is the broader question that lies ahead. The narrower question, which the amendment directly addresses, is that of the role of the president. That is crucial, because here again there is the matter of where power lies, how it will be administered and with what powers the president will be endowed, as opposed to the head of state rotating president, as opposed to the President of the Commission and as opposed to the High Representative, which is the Foreign Minister with a new name, but with the same powers. All those things need to be sorted out because they affect us very directly. They are not remote issues that are considered boring and can be pushed aside, they directly affect how we live in this country and how we can decide who we hold accountable when things go wrong, or even give credit to when things go right.

The Economist article that I cited earlier states that in the treaty, all the compromises have reduced the definition of the role of the president—the full-time president—to gibberish. That is probably right. Several other commentators, including the eminent and very effective Quentin Peel, in the Financial Times, talks about "another messy compromise" in trying to decide this turf war of who does what between the President of the Commission, the rotating head of state president, and all the rest. There is a lot to be sorted out there and it cannot be just pushed aside by saying, "It is all right; we will sorted out by discussion in the next few months".

I am sure that your Lordships will feel that the time is getting near when we could take a break and have some dinner, but in all this discussion, it seems to be constantly forgotten by Ministers that this is an evolving process and a self-evolving—if that is not too odd a word—Bill and treaty. It contains within itself the power to move on, to carry whole areas out of the national veto field into the qualified majority voting field—sometimes to our benefit, I must concede that; sometimes not at all. But we cannot tell. We do not know how that is going to work. We are taking a step into the dark in the way that we would have done with the previous constitutional treaty, but perhaps not so much as we would have with the Maastricht treaty and previous treaties, although obviously they were highly significant steps forward as well.

One is left feeling that there is a real danger that if we rely on the scrutiny and calling to account that we have had in the past, it will not be enough. We have set in motion a new vehicle that will move faster and will require much more agile supervision if we are to know what is to happen before it hits us and takes us by surprise. There is something deeply unsatisfactory about how our Parliament has, even in the recent past, been able to keep up with European legislative procedures, with the rulings of the court, with the decisions of Ministers in the European Council and with the instruments and regulations of the Commission. Everyone feels that we should do better in this Parliament. Just receiving information, being kept up-to-date and being told to tick the Brussels boxes is not enough. We want a European system that is more flexible, which gives a greater and more progressive role for the nation states—as I said the other day, probably the most progressive idea in the entire concept of European development.

We want to move on from the current position and not see ourselves taken down the road to more centralisation and a reinforcement of the outdated European concepts to which Ministers and the Liberal Democrats seem to cling, under which they cannot see that we are living in entirely new conditions of a networked world in which the old idea of blocs and centralisation are completely out of date. Having said that, of course we will return to these matters.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Home Affairs

I apologise for intervening, but we have a couple of minutes before we break. We on these Benches entirely understand that we are living in a fast-evolving world. That is precisely why we think that things cannot be put down in black and white. What is the noble Lord's conception of politics, both at the national and European level? I think that I heard him say that he wants to see the distant shore and that, unless he does, one step is too much for him—to misquote the hymn that we both used to sing as boys.

The Conservative idea of politics is that it is a messy compromise. I assume that Edmund Burke would have said that international politics is a messier compromise than domestic politics. If that is not the case—if everything has to be sewn up and clarified in black and white—I do not see how we can have a Conservative foreign policy.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

It is a little late in the timing, and certainly in my speech, to branch off into political philosophy. It is also possibly too late to sing the words of "Abide with me", which I think is Hymn No. 354, but not, "one step enough for me". I ask noble Lords to leave all that aside and merely allow me to say that the answers to our concerns, and the understanding about where Europe should be going, are shallow and unsatisfactory in the minds of ministerial and Liberal Democrat spokesmen. A new and much better Europe can be constructed, and we are quite ready to bring forward our ideas about how that should be done. We have the very large support of many wise people throughout modern Europe, which is a quite different place to the one it was 10 years ago with the return of the ex-communist countries, which I visited last week and which have a new liveliness and realism about how much centralisation they want and how much they do not want. I move, I am afraid, beyond the amendment in saying these things, and merely note that we will return to these issues and much greater ones behind them later on in our debates. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee does not begin again before 8.30 pm.

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

House resumed.