18:44 - Division on Motion B1 - Ayes: 210 / Noes: 244 - Motion B1 disagreed.
20:21 - Division on Motion D1 - Ayes: 148 / Noes: 215 - Motion D1 disagreed.
Lord Howell of Guildford
My Lords, I hesitate to enter again into the whole great debate on referendums, which really moves us away from the issues of the European Union Bill. My noble friend Lady Williams has again put forward some strong arguments. These are matters that have been debated over the years. When we come to a Bill of this nature, the issues are similar to when one comes to legislation about local elections or elections to the European Parliament. Indeed, I believe there is even a parliamentary election on record in this country where the vote has been below 40 per cent but no one has suggested it should be invalid.
I suspect this debate will continue, but it is the view of the Government that in these circumstances such a threshold would create a charter for the abstentionists. It would be extremely attractive to those who were anxious not to vote and to promote the desire not to vote. It would undermine the whole purpose lying behind the structure of the Bill, which is to check the haemorrhaging of confidence and popular support for the European Union’s development and to reinforce the case for the European Union’s development. That is why I am a little sad to hear those who have dedicated their lives and efforts to promoting an effective and fit for purpose European Union not supporting it. However, I understand the alternative views and I leave the matter there.
Lord Hannay of Chiswick
I am grateful to the noble Lord for giving way, but it is a pity that he has to caricature what the original amendment said. It did not suggest that a vote with a turnout under 40 per cent would be invalid. It suggested that it would be advisory and not mandatory—that is completely different. Frankly, some of the arguments that were adduced about the level of participation in the European Parliament elections are not transposable whatever to the area we are currently discussing, which is a national referendum.
Lord Howell of Guildford
Perhaps I should have hesitated longer before speaking because we are opening up the whole issue again. The invalidity I am applying is that the referendum would then become advisory, whereas the whole requirement and central thrust of the Bill is that the referendum is mandatory on Governments, not on Parliaments—you cannot be mandatory on Parliaments. That is what I intended to say, so I am sorry if I did not convey it accurately. We have had the debate, so I beg to press the Motion.
Lord Lamont of Lerwick
That question was raised by the noble Lord, Lord Taverne, earlier in the debate. The answer is: just as they vote in elections. They have to decide on five or six issues in an election. In the past, there were referendums in other countries on treaties in which they had to decide on a series of questions raised by those treaties. I repeat my point that where a veto exists, it is not necessarily just at Britain's insistence but because other countries, too, wanted it.
Thirdly, I think we will have referendums only where a British Minister agrees with the proposition that will be put to the people of this country, and where the Government believe that they can win the referendum. For that reason, and with great respect, I do not agree with the point made by the noble Lord, Lord Hannay, that our flexibility in negotiations will be impeded because a certain area is covered by the possibility of a referendum being held on it. If a Minister wishes to argue in favour of something, presumably he is confident that he can sell it to the public. If he cannot sell it to the public, and they are going to disagree with it, perhaps he should think carefully about whether it should be advanced at all. Therefore, although I agree with the general proposition that we do not want to go down the road of having a massive extension of plebiscitary democracy, I do not think that that will be the consequence of the Bill. That assertion has been repeated many times, but the argument is not convincing and I urge my noble friend to support the Government on this.
Lord Howell of Guildford
My Lords, I hope that I will be forgiven if I say that I have a faint feeling of having been here before—and forgiven also for not responding to every strongly held view and argument put forward in this debate that was put forward again and again in the past. The Government and I regard some of these arguments as deeply flawed and consider that they do not understand or come to grips with the realities of political life today, either here or in the rest of the European Union. I will also deal briefly, as is the custom, with the Motion—it is not the custom to make long second speeches on a Motion—and with the amendment moved by the noble Lord, Lord Liddle, which goes very much further than anything standing against the Government’s Motion that the amendments be resisted.
On the decisions involved in Clause 6, none is in the grey or insignificant category. They are all there for very strongly established reasons that are largely supported by many other countries. Many vetoes are maintained because the signatories to the Lisbon treaty did not want them to go into the QMV category. They are there because their use could only ever provide for a transfer of competence and power from the UK to the European Union—for reasons that we have explained from this Dispatch Box and that many of my noble friends have explained again and again—and so should be subject to the referendum requirement.
It is difficult to accept that any of the decisions in Clause 6 would not be significant in constitutional or economic terms. Those who say that it stretches their imagination to understand the significance of the measures listed in Clause 6, or Schedule 1, which springs from it, surprise me. Surely a decision on whether to give up our vetoes on, for instance, the multiannual financial framework, border controls or joining the single currency—I refer now to the amendment of the noble Lords, Lord Liddle and Lord Triesman, not to the main one that accepts them—would all fall, under Amendment 13B, into the bracket of something that had to be judged according to whether or not it was significant. This is a completely unnecessary process. Clearly they are of the most profound significance.
I know that the shadow Minister for Europe said on Monday that he considered other items in Clause 6 to be not so important. He exempted the important three—border controls, the European currency and one other—but dismissed the others as paperclips and minutiae. We do not accept that analysis. We firmly believe that the other issues are also of great significance and, when understood in terms of their impact on jobs, work and the processes by which our law system operates, certainly could be subjects of conversation in the pub in Burton-on-Trent, where the noble Lord, Lord Lea, has been listening to conversations.
On the European public prosecutor, I know that it is regarded by some of my noble friends, and by some noble Lords opposite, as not being of constitutional or economic significance. However, it is because it involves affording a supranational body the ability to prosecute citizens of this country within the scope of its own criminal justice system in respect of alleged crimes affecting the EU's financial interests. Someone must decide what that financial interest is and whether the crime has been committed. Is that a paperclip or minutiae issue?
What about the vetoes listed in Schedule 1? Why are they not significant when they all relate—that is why they are there—to the red lines adopted by successive Governments, fought for very hard by the previous Government and sustained by this Government, covering foreign affairs, security and defence policy, economic and tax policy, including issues of the EU's budget, which all of us admit is a red-hot issue, social security, employment policy, justice and home affairs policy, and citizenship and elections? Are these all minutiae, paperclip decisions and things that are never discussed in any pub? I have to ask where some of my noble friends, and some noble Lords, have been if they think that these matters are of no significance, because they include not only domestic issues, where after all Parliament can make and unmake laws, but transfers of power, sovereignty and competence that would almost certainly be irrevocable—in fact, they would be irrevocable.
The amendment before us would, for instance, allow the British Government to relinquish their veto over decisions relating to the multiannual financial framework without first getting the consent of the British people. That is a hugely important decision that Members in the other place were particularly concerned with, and rightly so. The Minister for Europe rightly pointed out that the forthcoming decision on that framework will in effect set budgetary decisions and ceilings for the next five to seven years of the EU's life and development. Are these minutiae, paperclip decisions or matters that people will not understand? I ask my noble friends and noble Lords who think that these matters are insignificant to think again. Their significance is obvious.
It is vital that these matters remain subject to unanimity and that whichever British Government are in office—this matter should be above party—continue to have the right of veto. Similar views are taken in almost every other country in the European Union. We all know what happens when one gets casual about the veto and lets it go. This was the case in the surrender of the veto on Article 122 of the TFEU, which opened the way to fearsome, huge and titanic new financial commitments to the funding of Europe in its present financial difficulties.
The amendment before us would reduce precisely the clarity that we all seek. It would also risk the possibility of judicial review on a decision by the Minister not to consider one of these clear-cut decisions to be significant. The so-called pragmatic flexibility that the noble Lord, Lord Liddle, keeps reminding us about and seeks could well be impeded by his own amendment. He would end up in a quagmire of pragmatic flexibility of his own making. It was too much of this pragmatic flexibility approach in the past that caused antagonism—the turn-off, if you like, of popular support for the European Union and for Ministers’ actions. The ministerial discretion that some of my noble friends and noble Lords call for has become the ministerial indiscretion and undermining of trust and support for the European Union that we are trying to correct.
Lord Goodhart
Would my noble friend accept that it is impossible for a court to make decisions on what is done in the Houses of Parliament? If the Minister declares, therefore, that he believes something to be—or not to be—a matter of importance, it is not a matter that could then go to the courts. It would be settled by the House itself.
Lord Howell of Guildford
Ministerial decisions are open to judicial review. That is not a matter that we discussed much in Committee or one that we would necessarily want to see operate very fully in this or any other area of ministerial decisions on any aspect of policy. However, judicial review is there and ministerial decisions can be challenged.
The House of Commons has twice approved the scope and operation of Clause 6 following a clear exposition from the shadow Europe minister and his views on party policy on Amendments 6 to 13.
I do not want to take further time meeting the marginalisation argument. Frankly, it is a chestnut, as there is absolutely no impact on Ministers’ discretion and flexibility merely because they have sanctions behind them. Most European member states’ Ministers have sanctions of various sorts lying behind them on the decisions that they reach.
The plebiscitary democracy issue, frankly, belongs to the pre-internet age, before the web and the internet system. We see all around the world the wider public’s insistence on having a say where major issues about the transfers of power and competence away from their sovereign control are involved. That is exactly what would happen here. The idea that there would be 56 different referenda coming along is pure fantasy and does not relate to the actual way in which these issues would arise. There would be no great frequency of referenda; this is not the pattern for the future. It will not be the result of this Bill and it certainly would not be the outcome of the way in which the European Union has operated, is operating, or is likely to operate in the future. It is not in the interests of the 27—maybe soon 28—members to proceed in that way.
I think that the noble Lord would be wise to accept the Motion and the view taken in the other place. He would be wise to reject the amendment and therefore I ask him to withdraw it and accept the Motion so ably moved by my noble friend.
Lord Liddle
My Lords, we have had a full debate, and I do not want to take up the time of the House. I just want to make one comment on what the Minister has said. As you know, I believe in the noble Lord’s integrity in putting this Bill forward. I do not believe he is putting it forward for anti-European reasons. I do not think that that is what he thinks, but the truth is that the list of referendum locks contained in this Bill far exceed any reasonable person’s definition of issues of fundamental constitutional significance. On that basis, I would like to test the opinion of the House.
Lord Wallace of Tankerness
That this House do agree to Commons Amendments 14A and 14B to Lords Amendment 14.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, we have had a number of interesting debates on Clause 18 at every stage in your Lordships' House and in the other place. We have heard from those who sought to ensure that the clause was more than declaratory and from those who expressed concern that Clause 18 might somehow affect our obligations as a member state. As my noble friends Lord Howell and Lord Wallace of Saltaire have said, and I have made clear, that is not the case. I hope we have assured your Lordships' House very effectively that this clause is declaratory and is intended to be declaratory. It underlines the existing legal position and confirms how directly effective and directly applicable European Union law takes effect in the United Kingdom, no more and no less. It will certainly not change in any way the constructive activist/pragmatist approach that this Government have and will continue to pursue in our engagement with our European Union partners on the priorities that matter to the people of this country.
Although the clause is declaratory, we believe it serves an important and valuable purpose. I echo the words of my noble and learned friend Lord Mackay of Clashfern who said on Report:
“It is important that this declaratory measure should be made because of the theory sometimes propounded that Community law in the United Kingdom derives from the treaty alone by virtue of the European Union legal order. I believe that it is right that we should make it plain at this juncture that that is not so”.—[Official Report, 15/6/11; col. 790.]
I welcome the acceptance by your Lordships’ House and the other place of the principle underlying Clause 18. What we have before us, as we did on Report, is the question as to how we apply that clause and whether the 1972 Act should be the only Act which is to be covered by Clause 18. In this, I fully recognise the reasoning behind the approval which your Lordships gave to the amendment on Report.
The aim in doing so was quite rightly to make the clause as specific and clear as possible, an aim which is wholeheartedly one which one could support. But, as I have already said, I recognise the concerns expressed by noble Lords that Clause 18 should make more specific reference to the European Communities Act 1972. When we debated this on Report, I made it clear that the reason we could not accept the amendment was because we were of the firm belief that a number of other Acts of Parliament also give effect to directly effective and directly applicable European Union law independently of the 1972 Act. Therefore, to accept a provision that referenced the 1972 Act alone would be to accept a change in the existing legal position, which could go beyond what we had always intended.
Although the European Communities Act 1972 is the principal means by which directly effective and directly applicable EU law takes effect in the United Kingdom, the amendment agreed by your Lordships’ House could have created a significant risk that the courts might interpret the clause as restricting the ability of the other Acts of Parliament to incorporate directly applicable or directly effective EU law into our United Kingdom law.
The amendment accepted by your Lordships’ House also removed the phrase, “It is only” from the clause. This wording is intended to make it explicit that it is only by virtue of Acts of Parliament that directly effective and directly applicable EU law takes effect in the United Kingdom. Removing this reference leaves open the possibility of arguments to be made that directly effective and directly applicable EU law could enter into United Kingdom law by other means, which undermines the very rationale behind the clause.
Nevertheless, we have reflected on the amendment and the Government have demonstrated already that we wish to listen to arguments put forward by noble Lords. When there are grounds for a change to be made, we are prepared to make the change. In doing so, I wish to put on record our gratitude to my noble and learned friend Lord Mackay of Clashfern, with whom we have discussed in depth possible alternatives to his amendment to ensure that any amendment in lieu addresses his concerns sufficiently.
The Government subsequently proposed amendments to your Lordships’ amendment in the other place, which we believe achieve these two objectives. These amendments are before us today. It may help your Lordships if I set out how the clause will read if these two amendments are added:
“Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act”.
As I have indicated, we are particularly grateful for the engagement of my noble and learned friend and for his advice. My understanding is that he is content with the amendments to his original change.
I am also pleased to note that the other place voted overwhelmingly in favour of the government amendments by 485 votes to 22. These amendments were supported by the Opposition, with the shadow Minister for Europe calling them,
“a modest improvement to what was suggested by the Lords”.—[Official Report, Commons, 11/7/11; col. 98.]
I therefore beg to move that this House acknowledges the considerable support of the other House for these two amendments to the amendment that was proposed by this House. I ask your Lordships to support these amendments today. I beg to move.
Lord Mackay of Clashfern
My Lords, as the one who took the main argument on Clause 18 on Report with an amendment which was carried by quite a reasonable majority in your Lordships’ House, I am happy to assure your Lordships that this debate need not be anything like as long as the previous one because I am entirely happy with the proposed amendments and the resulting Clause 18.
The amendments restrict the matter to directly applicable and directly effective EU law. We are not concerned with other Acts which introduce EU law directly—for example, where it uses a particular provision of EU law to make law in this country. We do not need to concern ourselves with that. Originally, in an attempt to meet with the Government, I drafted an amendment which covered that as well as this. But I understand that it is now agreed that we just need to deal with directly effective and directly applicable EU law.
I am not 110 per cent convinced that there are other Acts which do this but, using the suggestion of my noble friend Lord Flight of the belt and braces, there is no harm in adding this because the 1972 Act is now specifically referred to. There is no doubt in my mind that it is the key to this aspect of EU law in this country. I hope that your Lordships will accept these amendments and my gratitude to the Government for their acceptance of the principle of the amendment which was accepted here, and for defending me from various allegations that were made in the other place about my motivation.
Lord Hannay of Chiswick
My Lords, I express gratitude to the noble and learned Lord, Lord Mackay of Clashfern, for his work on the previous amendment Will the Minister confirm the Explanatory Notes that were made when the original Clause 18 was put forward and confirm that the Government stand by these Explanatory Notes now? For the avoidance of all misunderstanding, the Printed Paper Office handed to me yesterday a copy of the Explanatory Notes. I shall make two references. My first is:
“This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The principle of the primacy of EU law was established in the jurisprudence of the European Court of Justice before the accession of the United Kingdom to the European Communities”.
The second reference is:
“Thus this clause is declaratory of the existing legal position. The rights and obligations assumed by the UK on becoming a member of the EU remain intact. Similarly, it does not alter the competences of the devolved legislatures or the functions of the Ministers in the devolved administrations as conferred by the relevant UK Act of Parliament”.
It would be very helpful if the noble and learned Lord could confirm that those Explanatory Notes, only as Explanatory Notes, remain as they were originally applied to a different Clause 18 from the one that this House is about to accept.
Lord Wallace of Tankerness
My Lords, I thank my noble and learned friend Lord Mackay of Clashfern, my noble friend Lord Lester of Herne Hill and the noble Lord, Lord Hannay, for the support that has been given to these amendments. With regard to the Explanatory Notes, I can confirm to the noble Lord and the House that, as is customary, the Government will review the Explanatory Notes in their entirety. The notes on this clause will be considered as part of the exercise and we expect that there will have to be some consequential change to reflect the new wording of the clause. But that apart we have reviewed the Explanatory Notes in the light of proposed changes and consider that the notes, as drafted, accurately reflect the purpose and effect of Clause 18. I hope that that gives the reassurance that the noble Lord is seeking. In the belt-and-braces spirit which my noble and learned friend mentioned, I hope that the House will support these amendments.
Lord Howell of Guildford
That this House do not insist on its Amendment 15 to which the Commons have disagreed for their Reason 15A.
Lord Howell of Guildford
This is the issue of the sunset clause. I believe there is another amendment to be moved which is related but with a slightly different emphasis. We debated this proposition at considerable length throughout your Lordships’ consideration of the legislation. We know there are a number of sunset clauses in a number of pieces of legislation, for the most part for specific operational reasons. The Lords has expressed concern over the granting of new extraordinary powers for the Executive, such as in response to the firefighters’ dispute eight years ago. In all these sorts of cases, Parliament has sought to ensure that these powers were retained for only as long as was necessary.
With the Bill there has been a rather different line of argument. There are those who have a general dislike of the Bill, which they are perfectly entitled to have, and there have been arguments put forward in favour of a sunset clause because, it is claimed, this legislation seeks to bind future Parliaments. I repeat what was observed in another place—I perhaps have not comprehended the value of any counterarguments to it—that all legislation by a Government can bind future Governments, and maybe the Government of the day wish it would. All legislation is reversible. The need for additional provisions in the Bill seems weak.
Instead of repeating my arguments, I will simply quote from the European Scrutiny Committee, which put the matter very clearly:
“All Parliaments legislate for the future. Laws passed by one Parliament do not contain a sunset clause at the Dissolution. The real point is whether a government can, in law, make it difficult for a future Parliament to amend or repeal the legislation it has passed; in our view it cannot. Our conclusion therefore is straightforward—that an Act of Parliament applies until it is repealed”.
Again and again there has been the proposition that somehow this type of legislation weakens Parliament, but Parliament remains central to the whole pattern of agreeing by Act of Parliament whether there should be referenda. The argument for the sunset clause is that each Parliament should be given the chance to decide whether its sovereignty has been curtailed by the Bill. We do not accept that case. As the Minister for Europe said in another place:
“The Bill does not substitute the British people for Parliament, for Parliament will continue to have a central and strengthened role”. —[Official Report, Commons, 11/7/11; col. 74.]
Parliament would have the opportunity on each occasion to approve a transfer of competence or power and to approve the holding of a referendum. In contrast this provision would actually reduce the control that Parliament would have on treaty changes and passerelles until the Government of the day decided whether to revive Part 1 of and Schedule 1 to the Bill. It would actually have the counter-effect of that, which I believe is the intention of those who put it forward. In any case, we have a system that is designed precisely to review how all Acts of Parliament are used once they are enacted. The previous Government introduced a system of post-legislative scrutiny. Well done them, because under that the Government of the day are required to publish a memorandum to Parliament on the operation of each Act of Parliament up to five years after the commencement of the Act. This is considered by relevant parliamentary committees, which can decide whether to conduct a detailed examination of that legislation. I ask again: what is the point of this additional proposed provision?
I am happy to repeat the commitment of my friend the Minister for Europe and say that this Government agree that this system is a useful tool that should be exploited and that a future Government must publish a full report on how the Bill has been used within five years of this legislation becoming law. This will result in the clarity and the reflection that colleagues in the other place rightly seek, but without arbitrarily depriving the British people of their say at the end of this Parliament.
This has now been considered by the other place, which has disagreed with your Lordships’ amendment by a very substantial majority of 89 votes. Therefore, it falls to your Lordships’ House to consider whether to insist on the amendment or accept the clear and considered view of the other place; and whether to accept, in the light of what I have said, that this is a necessary amendment or challenge to the Government’s Motion that needs go forward. I personally doubt that it need go forward and I urge your Lordships to let the Motion stand.
Lord Shutt of Greetland
My Lords, I believe that the House is ready to hear the closing speakers. I sense where the House is.
Lord Maclennan of Rogart
My Lords, I had sat down and was perfectly happy to hear the view of the noble Lord, Lord Judd. The House is eager to take a decision.
Lord Stoddart of Swindon
My Lords, this is perfectly out of order. If necessary I will get the House to vote on whether I can speak.
Lord Shutt of Greetland
My Lords, I believe that I heard the voice of the House, and I believe that the House is very clear that it wants to hear the closing speakers.
Lord Stoddart of Swindon
If anyone wishes to challenge me and move that I no longer be heard, let them do so, but I wish to ask a question. If I had been allowed to do so without the very rude interruption of the Whip on the Bench, noble Lords would have saved themselves a lot of time. What I wanted to ask—and I am going to ask it now—is whether, when the amendment states that a future Government “may”, it means “shall”. We often have debates about what “may” and “shall” should mean, and I think it is important that before noble Lords vote, if there is going to be a vote, they know whether they are voting for something that commits the next Government to something or is permissive for the next Government. Now I will sit down and be quiet.
Could I just add that the Whip on the Bench did not intervene on the noble Lord, Lord Maclennan, who widened the debate on this very narrow amendment to the extent of whether we should be in or out? I think I have been extremely badly treated, and I hope that the Whip will apologise.
Lord Shutt of Greetland
My Lords, I would not want to upset the noble Lord. I was taking the view of the House. In this business of a self-regulating House, occasionally we have to use judgment, and it was my judgment that we were ready to conclude this debate, and I believe that is the case.
Lord Stoddart of Swindon
I might say to the noble Lord that he is not entitled to make that judgment.