Brexit and the EU Budget (EUC Report)

Baroness Falkner of Margravine Excerpts

Thursday 6th April 2017 Lords Chamber

Moved by

[Baroness Falkner of Margravine]

That this House takes note of the Report from the European Union Committee Brexit and the EU budget (15th Report, HL Paper 125).

[Baroness Falkner of Margravine (LD)]

My Lords, I am delighted to introduce the EU Committee report, Brexit and the EU Budget. I thank all members of the committee, which, along with the other sub-committees, has worked at an extraordinary pace since the referendum to examine all the significant areas of policy that will be impacted by Brexit. I benefit in my chairmanship from an extraordinary level of expertise and talent in the membership of the committee—even by the standards of this House.

We will be losing one member in the next rotation, my noble friend—I was disconcerted because I thought he was behind me—Lord Shutt. It has been a real pleasure to work with him, and I know that he will bring the same level of wisdom and expertise to the next committee that he serves on. On behalf of the committee I express our sadness at losing him.

We are also very ably served by our clerk, John Turner, and our new policy analyst, Dr Holly Snaith, who both produced as good an example of work as any in this House. I know how important our reports are to the policy community in Brussels, and this one is no exception. I understand that it has been carefully examined across capitals.

I am also very grateful that we were able to secure a debate on this topic so soon. As noble Lords will be aware, the issue is highly contentious and, as the Tusk draft guidelines that were issued last Friday indicate, is going to feature as a significant factor in the early negotiations now that Article 50 has been triggered. The guidelines say:

“A single financial settlement should ensure that the Union and the United Kingdom both respect the obligations undertaken before the date of withdrawal. The settlement should cover all legal and budgetary commitments as well as liabilities, including contingent liabilities”.


So this debate is timely.

Our inquiry was undertaken in December and January, and we heard evidence from academics and legal experts. We also visited Brussels to hear from a range of MEPs and prominent think-tankers. We are enormously grateful to all those who contributed to the inquiry. The UK’s possible exit bill from the EU has received a significant amount of attention in the press and elsewhere. In the autumn of 2016, reports started to emerge in the Financial Times, for example, that the UK would face a bill of €20 billion. Shortly after, the FT reported the figure as €60 billion—an unprecedented level of inflation—and further speculation in Brussels suggested that this was the figure the EU actually had in mind. We wanted to investigate the factors behind these numbers and, if possible, determine what the United Kingdom might need to pay.

Noble Lords will be aware that the most newsworthy finding of our report was that, legally, the UK would not be obliged to pay anything at all. This has been seized upon by those who do not believe in honouring their obligations, but it is clear that they have not read our report in full. We considered this matter very carefully before coming to that conclusion, having received differing opinions from our legal witnesses. However, having looked closely at the matter with the assistance of the EU Committee’s then legal adviser, Mr Paul Hardy—to whom I personally extend our thanks, as he has since moved on from the House of Lords—we decided to put that advice into the report itself so that all could see the analysis behind our judgment. We concluded that the effect of Article 50 was that all EU law ceased to apply to the UK at the moment of departure unless the withdrawal agreement provided otherwise. This means that all legal obligations resulting from budgetary commitments made while the UK was still a member state would also cease to apply.

We heard evidence that Article 70 of the Vienna Convention on the Law of Treaties might provide a legal basis for an enforceable claim against the UK—and enforceability goes to the heart of the argument. The convention states:

“Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty … Releases the parties from any obligation further to perform the treaty”,


but that it:

“Does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”.


On that reading, this appears to mean that the United Kingdom would have a legal obligation to pay its dues—but the key words are:

“Unless the treaty otherwise provides”.


Article 50 of the Treaty on European Union provides a mechanism for a member state to leave the EU without an agreement and with the effect that all EU law ceases to apply to the member state. Article 50 is unqualified by any condition about ongoing liabilities, and from this we concluded that the UK’s budgetary liabilities would cease in the absence of any withdrawal agreement, as there is no institution to enforce obligations when EU treaties fall.

I am aware that other legal opinions are circulating in Europe—a fact alluded to by the Chancellor in his interview on the “Today” programme on 29 March. On 21 March, there were press reports of a leaked EU document suggesting that the matter would be taken to the International Court of Justice if the UK refused to pay. The EU may go down this route, although we concluded that international law is slow to litigate and hard to enforce. We also noted that Article 344 of the Treaty on the Functioning of the European Union prohibits EU member states from submitting the legal interpretation of the EU treaties to a court other than the Court of Justice of the European Union. I note that the European Council’s draft negotiating guidelines propose establishing an arbitration body to rule on the interpretation of the withdrawal agreement, taking into account the particular status of the CJEU. This would, of course, come into being only if a deal was struck.

We explored the legal position because we wanted to determine the lowest amount the UK might be required to pay as a means of sketching out the parameters of the forthcoming negotiations. I was rather surprised to find that the answer was zero, in terms of the legal position, but I want to be clear that the committee did not recommend that the UK should refuse to pay anything. This legal situation would apply only if it proved impossible to reach a deal, in the sense that the EU’s claim would be unenforceable. The committee hoped that a deal would be reached and acknowledged that this would be impossible without settlement of the budget issue.

Politically, if not legally, the UK has signed up to certain areas of EU expenditure which may persist for some years after Brexit. It will be a matter for negotiation how much any payment proves to be, but the political and moral obligations on the United Kingdom will have to be taken account as part of the process, not least because good will will be essential to achieving a workable withdrawal agreement and a co-operative future relationship.

The Prime Minister, in her letter triggering Article 50 and her Statement to the House of Commons, said that she would pursue a “deep and special partnership” between the United Kingdom and the EU, taking in both economic and security co-operation, and that:

“We will need to discuss how we determine a fair settlement of the UK’s rights and obligations as a departing member state, in accordance with the law and in the spirit of the United Kingdom’s continuing partnership with the EU”.


So far, we do not know what the Government consider to be a fair settlement, and no doubt that will emerge in the negotiations. Rumours that they have calculated a bill of £20 billion have recently been reported, but at this stage that is mere speculation.

The point is that this is a negotiation and the final bill could be calculated in any number of ways. We tried to explore some of the ways a bill could be constructed. It was possible to arrive at wildly differing figures depending on how one calculated the UK’s share of the EU budget, whether one included settlement of the so-called reste à liquider, or RAL, amounts, and whether one included payments in respect of accrued pension rights—which itself would differ depending on whether it was calculated according to the number of UK nationals working for the EU at the moment or in receipt of a pension, or by using a standard percentage. There is also the issue of EU assets and whether the UK is liable to receive a portion of their value.

One further factor in determining any bill would be whether the UK agrees to make contributions to the EU budget under the current multiannual financial framework until it comes to its natural close at the end of 2020. Doing this would reduce uncertainty in the rest of the EU over how it is to fund its spending plans for the 21 months following Brexit. Taking this position may help to secure a transitional arrangement—the implementation agreement, as the Government call it—and the cost, although running to billions, it is likely to be offset by commitments the Government have already made to guarantee EU-derived funding domestically following Brexit. So it would be substantially lower than the headline figure might suggest if that were the case. It is an option that requires serious thought.

Let me conclude with a final thought. This process on which we have embarked—disentangling ourselves from a relationship of nearly 45 years —will be watched around the world, not just in the EU. The measure of the UK’s reputation as a future partner in deals around the world will be dependent on how it behaves in ending this relationship. This country’s culture is synonymous with the concepts of fairness and honour. Having grown up in in a former colony, I was raised in the knowledge that an Englishman’s word is his bond. No amount of legal posturing could convince future partners who do deals with us that we would be reliable partners if we left the EU table without paying our due bill. I believe that the Government understand this and intend to fulfil their obligations through the difficult negotiations ahead. I wish them well. I beg to move.

--- Later in debate ---

[Baroness Falkner of Margravine]

My Lords, I start by thanking all noble Lords who have spoken in this debate. It has been extremely valuable and we will of course reflect on all the comments that have been made. I particularly thank the members of the committee who have spoken. As my noble friend Lord Shutt pointed out, a debate on the last day of term seems to be the fate of European Union Sub-Committee A, but as a committee we felt that we should take this date as offered, because this is one of the topics that will be addressed at an early stage and it is important to hear all sides of opinion in this House. What a debate it has been and what opinions we have heard. I will go through some of the substantive points and believe that I should address them as this is a debate.

I start with the noble Lord, Lord Davies of Stamford, whose presence on our committee we still miss, and I was delighted that he was able to find the time to speak. I need to address early on an issue which he raised and which it is of fundamental importance to get on the record. I refer to the rights of EU citizens who are working for EU institutions today. The noble Lord inferred that they would be fired at the end of the United Kingdom’s departure from the EU, and I thought it would be useful for the House to reassure them—in case they pick up Hansard—by reading Mr Juncker’s email to staff of 24 June, which particularly addresses this issue. He said:

“I know many of you are concerned about your future after this vote … you are Union officials. You left your national hats at the door when you joined this institution and that door is not closing on you now … our staff regulations will be read and applied in a European spirit”.


So not only do the United Kingdom Government stand by EU citizens, as I understand it, but the European Commission does, too, and that is an important clarification.

The noble Lord, Lord Davies, also led us through an exposé of the origins of jurisprudence which was worthy, if I may say so, of a university seminar. I tend to prefer the science of economics to the discipline of law, and I suggest that the established finding of behavioural economics, which borrows heavily from psychology, might apply here in terms of “confirmation bias”. Confirmation bias, as is defined,

“occurs when people filter out potentially useful facts and opinions that don’t coincide with their preconceived notions”.

The noble Lord, Lord Davies, also said that no one is suggesting that we will have liabilities after departure. We caveat our report by referring, as the noble Lord, Lord Tunnicliffe, said, not just to what will happen when we leave. After we leave there will be ongoing commitments, which is why the legal advice is significant. We know—and the report spells out—that there is a rule called n+3, whereby the expenditure continues for three further years after the end of the MFF period. I think it was the noble Lord, Lord Butler, who reminded the House of the comments of the German Finance Minister, Wolfgang Schäuble, who thinks that the liabilities could continue till 2030.Therefore, in that sense, this legal advice is absolutely pivotal.

My noble friend Lord Thomas of Gresford joined the noble Lord, Lord Davies of Stamford, on the overarching obligations of the Vienna Convention on the Law of Treaties. I refer noble Lords to page 60 of our report, which takes us back to the intentions of the drafters of the Vienna convention in 1966—the UN’s International Law Commission—which explained the thinking behind what it said in Article 70(1) of the convention. That article contains the words “unless the treaty” in question “otherwise provides”. The commission says:

“Clearly, any such conditions provided for in the treaty or agreed upon by the parties must prevail, and the opening words of paragraph 1 of the article”—


which are, “unless the treaty” in question “otherwise provides”—

“(which are also made applicable to paragraph 2) so provide”.

Therefore, the Vienna convention rules itself out where there are other provisions in treaties.

The committee cannot be faulted for the fact that the treaty in question might not have provisions in it about how to go about an orderly withdrawal, the obligations and liabilities and so on. I suggest that the House, which has debated Article 50, might perhaps think about how it was so carelessly drafted as to leave out these important caveats. I understand from my conversations in Brussels that there is much gnashing of teeth among Commission lawyers about the manner in which Article 50 was drafted.

Let me turn to another point made by my noble friend Lord Thomas of Gresford. He gave the example of an EU project in Wales where the money might, on the whim of someone, be used for a purpose other than that for which it was provided. I agree that that would palpably be illegal. However, I also agree that the receipt of this funding would take place while the EU treaties are extant. Once we have left the European Union, the treaties do not apply. Therefore, neither does the justiciability of the CJEU, unless a withdrawal agreement decided to accept that as a condition.

I turn now to the noble Lord, Lord Hannay of Chiswick. I agree completely with his advice on the manner of negotiations and how one’s perceptions can be confounded as one goes deeper into the negotiation. However, he disagreed specifically with paragraph 135, and said that the committee should not have accepted the legal opinion. Perhaps he thought that we had taken only a single legal opinion into account. We did not. All the lawyers we spoke to knew the EU institutions well. We tested each opinion given by a lawyer and, as time went on and we had a subsequent opinion, we wrote back to the original lawyers asking them to give their opinion again in the light of what we had heard.

I am being encouraged to move on, and I will—I am coming to my final comment.

We exercised our collective judgment and came to our views based on how we saw the evidence. However, the noble Lord, Lord Hannay, suggested that I was somehow tiptoeing around some of these issues. Let me give him some advice: when confronted with counterintuitive situations, I find it better to tiptoe around new evidence rather than dismiss it through confirmation bias.

In conclusion, there is only one way to test whether our judgments in this report have been right or wrong, and that is through a court of law. We have heard from the Minister and from all sides of the House that we will not be going there; that we want an orderly exit and a deep and lasting relationship with our nearest partners, and that is what we should all be seeking to achieve, not least the Government, who speak in our name. I hope the report will be seen as perhaps an important milestone in making us all much more competent in dealing with the pitfalls that lie before us. I hope it will be taken in the best spirit of EU Select Committee reports, which perform such a valuable service to the House and beyond.

Motion agreed.

European Union Subsidiarity Assessment: Electoral Law of the EU (EUC Report)

Baroness Falkner of Margravine Excerpts

Thursday 4th February 2016 Lords Chamber

[Lord Boswell of Aynho]

My Lords, we are now, as it were, in the Chamber and we need to take the argument as it goes. However, for the avoidance of doubt—I hope this reassures the chair of the sub-committee—if any noble Lord is minded to take the temperature of the House, I am very much inclined to defend the sub-committee’s recommendation. I put that on the record.

However, let us take that as past. I add two other points. We have a Motion for a reasoned opinion. We have good reasons for asking for that. Indeed, we made it clear in the report we prepared some years ago for your Lordships’ House on the role of national parliaments—that has already been touched on in relation to the current European negotiations—that a reasoned opinion deserves a reasoned response. In entering a reasoned opinion we seek to enter a dialogue with, and gain an explanation from, the European Parliament, not with the purpose of subverting this move but of getting it into the right order with the right conclusion—no more and no less than that.

That leads me to my final point. When we debated this matter in the Select Committee, I was concerned to make it clear to its members that I would not like it to be seen as an oblique or indirect attack on the European Parliament itself. Some people in these Chambers seek to downplay the role of the European Parliament and even, occasionally, to question its legitimacy. I do not share that view. My view of parliamentary sovereignty is that it is better to have two levels of application and scrutiny than only one. I think that we have a joint and complementary role. I would not claim any great virtue in it but I have laboured long and hard to try to dispel any illusion that we are in any sense at war with Members of the European Parliament and its leadership. This is, I hope, a friendly discussion about procedure and a slightly more substantive one about the levels at which we take this argument forward. It is not a declaration of war or an attempt to create difficulty. I very much commend our report to the House.

[Baroness Falkner of Margravine (LD)]

My Lords, I had not planned to speak in this debate but the intervention of the noble Lord, Lord Davies of Stamford, provoked me to add my tuppence worth. I should clarify to the House that I speak in my capacity as the chairman of another sub-committee of the EU Select Committee—the sub-committee on financial affairs. It is true that the noble Lord, Lord Davies of Stamford, holds original, interesting and enormously important views, from which certainly my sub-committee benefits every week—week in and week out—and we are very grateful for his presence there.

I, too, was not present when this matter was discussed and when I saw it on the Order Paper I took it upon myself to find out what it was about. I came to the view that—as the noble Baroness, Lady Kennedy of The Shaws, and the chairman of the EU Select Committee, the noble Lord, Lord Boswell, have said—it was not a provocative gesture but the utilisation of a mechanism that has been hard fought for by this Parliament. This mechanism should improve dialogue and make us co-operate better, because it is an early warning system. It allows us to say, “Hang on, there is an issue here and we need to discuss it”.

I am slightly disappointed that the noble Lord, Lord Davies of Stamford, did not suggest to me that he had opinions on this. I would, of course, have fed them into discussions with the noble Lord, Lord Boswell. Speaking only for myself, but as a member of the EU Select Committee, I absolutely support the noble Baroness, Lady Kennedy of The Shaws.

[Baroness Neuberger (CB)]

My Lords, I speak as a member of the EU sub-committee on justice. I, too, pay tribute to our chairman, the noble Baroness, Lady Kennedy of The Shaws, and to our advisers, who have been brilliant. There is very little to add to what has been said but I want to say something about why we felt this was so important.

One argument worth adding is an emotional one. A degree of irritation was felt at the report coming out just before Christmas at a time when parliaments were going in to recess around Europe and there was not time to respond. We have heard that both Dutch Houses did not get it, as far as we can see. We did get it but with very short notice, hence the rush to bring it to your Lordships’ House. So I think there is a degree of irritation.

This is a procedural issue. Like the noble Baroness, Lady Kennedy, I am rather sympathetic to the report—at least to the matters within on gender equality. I think that that is great but it is not the point we were looking at. It is important to emphasise that we all felt that at a time when there is considerable criticism of the European Parliament and of European institutions more generally, it would have been better—hence this iterative process we hope to engage in—had they stuck to their procedures so that we could stick to ours. We were unanimous on this and I think that for all of us that was the strong argument. Therefore, I think that this should be supported.

Chilcot Inquiry

Baroness Falkner of Margravine Excerpts

Thursday 22nd October 2015 Lords Chamber

[Baroness Falkner of Margravine (LD)]

My Lords, I too thank the noble and learned Lord, Lord Morris, for initiating the debate. It is important for us to realise that this inquiry is crucial to the family and friends of those who lost their lives in Iraq, who must feel very badly treated in this sorry affair. To them it must feel that the decision to lay down the lives of their loved ones must have been taken in weeks or perhaps months, yet the analysis of why those decisions were taken—the basis of their understanding why it appears that this was embarked on almost with such carelessness—is still incomplete 12 years after the commencement of that war.

I start by making it clear that I have the greatest respect for the noble and learned Lord, Lord Morris of Aberavon, but I do not agree with discharging the inquiry at this point. It would be invidious because the report would be published incomplete—we all want a full and thorough account of what happened. Also, in any event, it would not come out very shortly because security clearances would have to be obtained before publication.

Before I go any further in my analysis of the failings of the inquiry, I should say that we have been talking about what led to the Iraq war. I bring to the House one other fact that my noble friend Lady Williams, in her extraordinary recall of how hard the Liberal Democrats worked at the time to influence the outcome of that decision, pointed out to me: that Liberal Democrat spokespeople in both Houses repeatedly pressed for UNMOVIC—the team of UN inspectors—to be given full authority by the UN to inspect Iraq for any evidence of weapons of mass destruction. Focusing on getting rid of such weapons would have been more effective and cost far less in lives and destruction than an invasion.

The British Government’s own dossier, published on 24 September 2002, stated that the inspectors had achieved a great deal in Iraq. The leader of the Iraq inspectors, Hans Blix, pleaded for more time to complete the inspection of all the suspect sites, but the US Government were not in any mood to concede this. So we lost an opportunity at that point, and it was clear that that particular US Government did not really want evidence or inspection; they just wanted to proceed to war—and it might now appear that that is what they had been promised by their ally, the United Kingdom.

Coming back to the Chilcot inquiry, it is worth noting that Sir John Chilcot has announced that he will write to the Prime Minister on 3 November with the timeline. I do not know to what extent the fact that the noble and learned Lord, Lord Morris, had tabled his Question to be debated today led to Sir John deciding to do that. I suspect that the Question was on the Order Paper before the decision was taken to set a date to publish the timeline.

In this sorry affair there have been big issues of judgment. The inquiry was announced on 15 June 2009. In this House on that day, as is recorded in the Hansard report, I said that given the very wide scope of the inquiry it should be in two parts—the first looking at the events that led up to the war, and the second looking at the conduct of the war. The response of the then Leader of the House, the noble Baroness, Lady Royall, was that:

“It is up to the committee how it structures its work”.—[Official Report, 15/6/09; col. 866.]

Three days later, the Public Administration Committee also recommended the same thing—a two-part inquiry into the decision to go to war, and another on the conduct of the war. The Labour Government again stated that it was up to the inquiry to decide what it wanted to do. So the question has to arise: given how very wide the scope was—everybody who has spoken has commented on that aspect—and that that was known from the outset, why did the inquiry decide to do its work as a single comprehensive exercise? Ultimately, that is a matter of judgment.

When Sir John gave evidence to the Foreign Affairs Committee in the other place on 4 February 2015, he admitted that he was not consulted on the scope of the inquiry; the noble and learned Lord, Lord Morris, said that in his opening remarks. In other words, Sir John was given the absolute thinnest of job descriptions: perhaps an analogy would be the kind of initial job advert that we see in newspapers. Rather than asking for a detailed job description with a detailed specification, and arguing the case for a different kind of inquiry or a different timeline—or different staff, more resources or whatever—he accepted the job in 10 minutes flat; frankly, I felt embarrassed reading that part of his evidence.

It therefore seems a fair criticism to ask why, once he had agreed to do the job, he did not take the opportunity to consider the recommendation that he proceed down a different course. Never mind the fact that I made that recommendation; it was also made by a serious committee in the other place, the Public Administration Committee. Sir John said in his evidence that the inquiry took evidence from 150 witnesses and saw thousands of documents. One is tempted to suggest that he might have foreseen that.

My second point is about the delays. Looking at the sequencing of events, it is clear that there was some kind of stand-off between the Cabinet Secretary and the inquiry team, which lasted for a while. Sir John is not ready to criticise the Cabinet Secretary for delay; none the less it took from July 2012 to January 2015 to reach an agreement on publishing the Blair-Bush correspondence. It is perhaps worth noting that Messrs Blair and Campbell, and Jonathan Powell, had been able to publish their reports of these conversations without hindrance.

I am running out of time, so let me conclude with this: the noble Lord, Lord Finkelstein, has put up a spirited defence about how long it takes to measure the march of history, by telling the House how long it takes to write a biography. I say to him that his colleague Charles Moore has written volume 2 of Margaret Thatcher’s biography, which I am reading at the moment, with great aplomb, in an extremely short time.

I want to pick up the issue of our continuing intervention in the Middle East. Let us go back to the August 2013 vote on not intervening in Syria. We as a country cannot, and should not, make a decision on that until we know of our hand in setting that region ablaze in the first instance. That is the least we owe the country.

EU: Balance of Competences Review

Baroness Falkner of Margravine Excerpts

Wednesday 11th March 2015 Lords Chamber

Asked by

[Baroness Falkner of Margravine]

To ask Her Majesty’s Government, on completion of the European Union balance of competences review, how they will use the information gleaned.

[Baroness Falkner of Margravine (LD)]

My Lords, I declare that I am on the advisory board of British Influence; a British member of the Anglo-German Conference, Koenigswinter; and a member of the advisory group of Demos, the think tank. I bring in the latter as I will comment on its evidence.

Before I begin my substantive remarks on this balance of competences review, I commend the Minister for the role that he has played both in the Cabinet Office and with the FCO Minister, David Lidington, in delivering the 32 papers. The House is truly in their debt. I should also note that the European Select Committee of this House—I am delighted to see that the chairman is here in his normal place—is conducting an inquiry into this exercise and I look forward to its report, which I understand will be published shortly.

In July 2012, in the Command Paper setting out the parameters of this review, William Hague said:

“Now is the right time to take a critical and constructive look at exactly which competences lie with the EU, which lie with the UK, and whether it works in our national interest”.

This Command Paper was the product of the coalition agreement, which pledged to examine the balance of the EU’s existing competences. As William Hague went on to say:

“It will ensure that our national debate is grounded in knowledge of the facts and will be a vital aid for policy making in Government”.

This has been a marathon. In fact, given that a marathon is 26 miles, the publication of 32 papers has overtaken that finish line by some distance. When the most contentious paper was delayed—that dealing with the free movement of persons—ostensibly due to coalition squabbles over its content, many wondered whether the exercise would and could be completed successfully, given that impartiality was to be a benchmark. But again, this coalition Government have confounded the sceptics in producing papers that are balanced, fact-based and widely contributed to, setting out clearly where the wins, the draws and the losses lie for the United Kingdom as a single state when the EU negotiates with and legislates for 28.

It is fair to say that after the initial incredulity in the media about quite how balanced the papers were, they have elicited so little publicity that one fears they might just quietly end up on a shelf. But this lack of media attention does not detract from their merit. I predict that, when and if a referendum gets under way, they may well get a bit of a dusting down.

Nevertheless, one objective of the review bears examination: the question of how many partners from other EU member states and EU institutions engaged with this exercise. I know that the EU committees of this House have a multiplier effect in terms of our scrutiny, but noting our reports is a different matter from that of actively participating in a shared analysis of common problems. A lack of engagement could signal how out in the cold the UK has been from the rest of the Union. So I hope the Minister will be able to tell the House which other member states and institutions contributed to the analysis of these reports.

However, the overarching question has to be about where we go from here. The White Paper stated:

“A final decision will be taken closer to the time on how best to draw together the analysis produced during the review in the light of the EU’s rapidly changing situation”.

With my noble friend Lady Ludford, who has extensive experience on the EU end of this relationship and now leads on EU matters in this House, I attended the evidence session that the EU Committee of this House conducted yesterday with the Minister for Europe, Mr Lidington. He was asked where we go from here and, unsurprisingly given that the election is a few weeks away, he was non-committal. It is clear that this was conducted between two parties with very different views of the UK’s role in the EU, and could have turned into a far more partisan exercise than it did. However, I did get the impression from yesterday’s session that there would be a little selective emphasis on the analysis, should the Conservatives win the next election and move towards their referendum.

What if Labour wins the election? We know that it has ruled out an in/out referendum. But, given that it has taken the Government some 42 years after the UK joined the European Economic Community to carry out such a thorough exercise, one would hope that if Labour were in power, it would not leave these reports to gather dust but would actively use the analysis to guide its policy-making. It is notable that the treaties of Amsterdam, Nice and Lisbon took place on its watch without it undertaking any such exercise to inform themselves about the British people. I hope that the noble Baroness, Lady Morgan, will commit in her reply to build on that work.

What could be the useful purpose in practical terms? One way to build evidence would be to have a dedicated website hosted by the FCO or the Cabinet Office, which would be updated periodically as directives, regulations and case law developed. That could be accompanied by a refreshment of the analysis every now and then when the pace of change merits a different emphasis or conclusion.

We know that there is now a residue of EU expertise built up in each government department. Without very much additional cost, those roles could be maintained to keep a watching brief on changes. In other words, it could be possible to hardwire an area of EU analysis into each functional department.

I am aware that Liverpool University’s European law unit is undertaking detailed work on the methodology and statistical analysis of the evidence. That is important, as the data contained in the report are already at risk of being outdated, given that the research started in 2012. Liverpool has suggested a synoptic review of the reports, which is sensible, but I go further and suggest that they are periodically refreshed.

I turn to the substance of some of the reports—although, in the limited time, I shall have to be very brief. The report on foreign affairs was one of the early reports and is therefore somewhat dated. However, its evidence suggests that the creation of the External Action Service has understandably been challenging—as has been particularly experienced in the division of the responsibilities assigned to the high representative, who is as well the VP of the Commission. Some years on, the notable success of the high representative’s role in the E3+3 talks in Iran and the transition in Burma show that, when the EU has a clear focus, the sum can be greater than its parts. I should pay tribute to the noble Baroness, Lady Ashton, in that role. However, the real test will come here in Europe itself, where any divisions over Russia could have a disastrous impact on not only EU security but EU cohesion overall. A further point of potential disunity will be China, where we have seen selective attempts by the Chinese to play on bilateral relations to the cost of common EU rules, particularly in the area of competition policy.

I have a word or two to say on enlargement. The report commented on the use of conditionality after accession. It has been instructive to see that the co-operation and verification mechanism has been used for Bulgaria and Romania, because they did not conform to the Copenhagen criteria, but we have a fairly substantial slide into regression by Hungary and do not seem to be able to do anything about it. I accept that the Commission has been able to use limited infringement proceedings, but it seems rather impotent overall.

One wonders how egregious a state’s diversion from democratic values has to be before Article 7 of the TEU is invoked. That test is:

“a serious and persistent breach by a Member State of the values”,

but there seems little clarity as to whether the Commission can use EU law for a general failure to abide by the Copenhagen criteria.

I turn to a mild criticism by the EU Select Committee on the use of selective evidence in the free movement of persons report. In its letter of 22 October 2014 to the EU Minister, the committee states that,

“there was significant reference ... to evidence by Demos and Open Europe, evidence that was closely aligned with the position of the UK Government”.

As the noble Lord, Lord Boswell, will know, I have the highest regard for the committee, but I respectfully suggest that when there are strongly held views about a subject matter, such as immigration, as opinion polls show that there are in this country, it is not only inevitable but important for a report to reflect that in its analysis. Otherwise, it would not be balanced and would not therefore command public respect as a serious exercise.

Moreover, Demos and its director, David Goodhart, should be taken seriously, as his book, The British Dream, is an important contribution to the debate from the progressive side of the political spectrum. Demos is no tool of the right, I assure him.

Finally, with about 10 days left of this Parliament, this is probably the last time that we will have substantively to discuss EU matters in this House. With one EU Act, two referendum Bills and numerous debates and Statements on the Floor of the House, I thank my noble friend Lord Wallace of Saltaire for his regard, courtesy and good humour over five years, when he has covered such a wide brief with such knowledge and insight. We wish him a happy retirement after the general election.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, it is very good to hear a number of complimentary remarks at the outset of this debate. However, it sounded rather as if I was about to retire from the House and everything else as well. I do not intend to retire yet, thank you. Perhaps, like others, I hope to do so when I reach my 80th birthday—that is a hint to various other people who are not here.

This was a coalition exercise. It was agreed in the coalition agreement, and it was no secret that the two parties disagreed and had different approaches to Europe. This was set up as a means to find some common ground in the detailed evidence as to what stakeholders thought. We agreed that we would not produce policy recommendations at the end, because that would have been difficult—the two parties have widely differing approaches, or at least we do from the right wing of the Conservative Party. We therefore set out to provide an evidence basis for a more informed debate on the European Union. In that respect I think that we have been successful. I pay tribute to my Conservative colleagues in this exercise—David Lidington, who chaired the ministerial Star Chamber throughout, and Mark Hoban and then Mark Harper, who also took part. I thank the good-quality teams from the Foreign Office and the Cabinet Office who supported us throughout.

I say to the noble Baroness, Lady Morgan, that we did not leave publication until the last minute. The reports came out in four groups at six-monthly intervals, so this has been a two-year process. We are grateful that the weight of evidence has grown as we have gone on. Interest among stakeholders has therefore been sustained throughout that two-year period. There were some 2,300 submissions, and we held a whole range of meetings and seminars—across the United Kingdom, in Brussels and elsewhere—with substantial participation from the Community institutions, and other member states and governments.

Sadly, we heard rather little from the Eurosceptic side. I must, as I always do, pay a real compliment to the quality of the evidence produced by Open Europe throughout the whole process. The TaxPayers’ Alliance loyally put in a large amount of evidence, which was not, I think, always as expert as it hoped it would be. I said to one of my Conservative colleagues at one stage, “Why do we not have more evidence from the committed Eurosceptic side?”, to which he replied, “For heaven’s sake, William, these people are not really interested in evidence. It’s belief; it’s faith; it’s prejudice”.

[Baroness Falkner of Margravine]

My noble friend will, of course, be aware that the noble Lord, Lord Pearson of Rannoch, was meant to speak in this debate, but then decided he was not going to. I made the effort to go through almost all the reports, including the parts on those people’s pet subjects—agriculture, the budget, fisheries and so on. Does my noble friend agree that they did not contribute a shred of evidence on the issues that they continue to go on about in this House and outside?

[Lord Wallace of Saltaire]

That is exactly the point. We have heard the noble Lord, Lord Pearson of Rannoch, being, it seems to me, cavalier with the evidence on many occasions in this House in recent years. I am sorry that he is not here, but I am not entirely surprised that he is not prepared to stand up and argue the evidence carefully with others when a lot of careful evidence is in place.

Following the slightly partisan speech by the noble Baroness, Lady Morgan, I can tell her that one of my roles as this process went on was to keep the Labour leadership informed of what we were doing and encourage them to engage. I have to say that most of my interlocutors in the Labour Party were hiding in the long grass themselves. I welcome the Labour Party’s final commitment to the importance of staying in the European Union. It has been a certain time coming over the past three years, but it is very good that the Labour position is now clear. We look forward to the Labour Party spelling out its approach in rather more detail.

This exercise provides the basis for a reform agenda. We have the contributions of a wide range of businesses and business organisations, academics and various other bodies. It was interesting to me that the most negative evidence from business came from small business associations few of whose members export—those who therefore, obviously, have the least interest in the European single market. Some seem to have the impression that if we got rid of European regulation we would have no regulation at all, without understanding that we would then need to have national regulation, or to accept other international frameworks for regulation.

We have all learned a great deal from this process. Of the consistent themes that have come out of it, the first was the idea that although we talk about completing the single market, we shall never do that, because the single market changes as we go along. We did not have to worry about a digital single market 20 years ago, whereas now it is one of the central issues with which we are concerned. As new technologies and new services develop, clearly we must continue to move on.

Secondly, the European Union is not just the international body to which we belong and do not want to belong to, it is embedded in an intricate network of international organisations such as the OECD, the Bank for International Settlements and the World Health Organization, of which the European Union is almost a regional organisation. If Britain were to leave the European Union, that network of international organisations would still constrain us. Globalisation means that Britain has to pool a great deal of its sovereignty, and the European Union provides a very good way of sharing that within a relatively transparent and friendly network.

We also discovered—this was a common theme across many of the reports—that the Commission has often been much too enthusiastic in proposing legislation without being sufficiently concerned about its impact, implementation or enforcement. I am happy to say that that is beginning to change. I hope that we have contributed to that. Impact assessments are the flavour of the year in Brussels, both in the European Parliament and the Commission, and Frans Timmermans and others are very clear that the Commission should be careful about the weight of the new proposals it puts through.

Another common theme concerned the tendency of the Court of Justice of the European Union to support integrationist cases and to pay insufficient attention to subsidiarity and proportionality. I think that is also changing, although I may say that, of the 32 reports, the report on subsidiarity and proportionality is, I suspect, the most widely read in other countries as this is a key topic which many of us do not fully understand the European Union has to take fully on board.

The reports stand by themselves. We did not intend to have policy conclusions; they are to be dug out to inform the debate and to make sure that those who deny the situation as we have found it are properly corrected in debate. We found that the review feeds into the domestic debate, but it is bounded by time. In two or three years’ time, attitudes will be different because the policy priorities will be different. Therefore, I am not sure that we necessarily want to embed all this in stone. However, we hope that it provides a basis for what may or may not be a referendum debate in 2017.

One report—the fisheries report—provided an alternative model that might be used on competence, involving European regulation or less European regulation. Perhaps we might have tried that out in one or two other reports, but the evidence that came in did not support it.

I think that the least anticipated outcome of the review was the rising level of interest and engagement across other member states. It has been very impressive. For example, I am told that the French department of transport is now using the transport report and that it is one of the things new recruits read. There are a whole set of discussions. On various occasions I was detailed to phone Ministers in other Governments and was happily surprised to discover that senior Ministers in other Governments had at least read the summaries of the reports. There have been contributions from a number of other Governments. The French parliament’s Senate committee is now conducting its own review. I could go on at length about how many other Governments have drawn lessons from what they see as a particularly valuable and detailed review of the current state of competences, which feeds into the British Government’s reform agenda.

I stress that the reform agenda is a continuing process. Reform is not something that you start and then finish. As we have operated over the last three years, the fisheries regime has been changed quite substantially. The budget has continued to change in emphasis, with more going to scientific research and less going to agriculture. We are in no doubt that we will continue to press that reform agenda.

The Foreign Secretary has so far visited 24 of the other 27 capitals and he is discussing the UK’s reform ideas and finding a lot of like-minded Governments who have similar approaches to strengthening the role of national Parliaments, making sure that new regulations are entirely justified and investigating the subsidiarity and proportionality issues. They ask: do we need to do this at the European level or can we leave sufficient flexibility at the national level? This has fed into the British debate, the wider European debate and the Commission’s agenda in terms of the need for better consultation, more attention to impact assessment and all of that area.

I am clear that this has been an extremely valuable exercise. I will say in passing to the noble Earl, Lord Dundee, that the relationship between the European Union and the Council of Europe is a matter for another time. The Council of Europe, which includes Russia, is not at the moment in the easiest state to deal with peacekeeping issues and other such matters. The EU itself, for security reasons, is becoming even more valuable for the UK than before.

What we have done, over the last year and more, as these reports have been absorbed in other national capitals, is to make progress on our continuing reform agenda. We look forward to doing that, whoever becomes the next Government—whichever parties form the next Government. I have said to some of my Conservative friends that I expect we might have to be a caretaker Government for some time in May, while the Conservatives and the SNP negotiate.

There is a basis here for an intelligent discussion. We have made an impression, not only on the debate here, on the readiness of Whitehall and on the willingness and expertise of the various business associations that have fed in, but we have also affected the debate in Brussels and around the European Union. That seems to me to be a great success and worth doing in itself. I am very glad that the European Affairs Committee will take this on from here.

Boko Haram

Baroness Falkner of Margravine Excerpts

Tuesday 27th January 2015 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, my noble friend Lady Northover is at the African Union summit this week, and will no doubt be taking part in some of those conversations. We are consulting not only with our North American and Commonwealth colleagues; Niger and Cameroon are directly affected. The French, British and American Governments, in particular, are working with all the countries in that region because Boko Haram, as noble Lords know, does not respect borders.

[Baroness Falkner of Margravine (LD)]

My Lords, does my noble friend agree that, given the pivotal role of the Commonwealth—with two affected countries, Nigeria and Cameroon, being members—it is appalling that the Commonwealth Secretary-General took four months before he responded to the abduction in the first instance; and can the Minister tell the House a little more about what efforts we are taking within the Commonwealth to step up efforts to defeat Boko Haram?

[Lord Wallace of Saltaire]

We are working very closely with Nigeria. I am not fully briefed on how far the rest of the Commonwealth is involved, but we have a training team and an intelligence team working with the Nigerians on coping with the pressure from Boko Haram, which now occupies a substantial chunk of north-eastern Nigeria.

Chilcot Inquiry

Baroness Falkner of Margravine Excerpts

Tuesday 6th January 2015 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, I also wish for an early publication, but we are waiting for the inquiry to submit the report to the Government. The Government have taken the decision, as my honourable friend Rob Wilson and I have both said on previous occasions, that if it is submitted after the end of February it would not be appropriate to publish it until after the election because part of the previous Government’s commitment was that there would be time allowed for substantial consultation on and debate of this enormous report when it is published.

[Baroness Falkner of Margravine (LD)]

My Lords, when the inquiry was announced, some of us took the position that it should be a two-part inquiry: one part into the conduct of the war and one part into the events that led up to the war. Would my noble friend agree that that would have been the better way to deal with it? In other words, we should have produced a report on what led up to the war itself and left in the long grass the business of the conduct of the war. In that event, we would certainly by now have had the answers and the truth that the British people seek.

[Lord Wallace of Saltaire]

My Lords, that might have been wise, but I am afraid that we are being wise a little after the event. We are well under way with this inquiry. Indeed, I hope that we are very close to the finishing line.

Organization for Security and Co-operation in Europe

Baroness Falkner of Margravine Excerpts

Wednesday 10th December 2014 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, at the Basel ministerial meeting of the OSCE last week, Russia was supported only by Belarus in resisting precisely the proposals that the noble Lord has just made.

[Baroness Falkner of Margravine (LD)]

My Lords, my noble friend will be aware that one of the great problems at the moment with the monitoring mission in Ukraine is that it also comprises Russian observers. He will also know that the border by which Russia enters Ukraine is about 100 kilometres long, but only 1 kilometre of that is actually monitored by the OSCE. Would he be able to tell us whether he believes that it is possible to resolve a conflict when one side to a dispute is engaged in assessing whether the other side is playing by the rules or not? That does not seem entirely fair.

[Lord Wallace of Saltaire]

My Lords, Russia is a member of the OSCE, which is one of the advantages of the OSCE. We wish that Russia were a more constructive member of the OSCE and we are very conscious of the heavy constraints under which the Special Monitoring Mission is now being forced to operate.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, we have continuing, active and widespread dialogues with as many of those in positions of authority in Russia as we can. Those dialogues include Moldova and other frozen conflicts: in Azerbaijan, Nagorno-Karabakh, South Ossetia and Abkhazia.

[Baroness Falkner of Margravine]

My Lords, may I press my noble friend a little bit on his last reply to me? Given that Russia is a party to the conflict—in other words, it is conflicted in being part of the monitoring mission—have there been any discussions with the leader of the OSCE mission to ask whether the Russians might stand down from this particular mission while remaining members of the OSCE?

[Lord Wallace of Saltaire]

My Lords, I very much doubt that. Russia is one of the major partners in the OSCE. We wish to retain Russia as a member of the OSCE and therefore we have to work within the very difficult constraints of 57-state membership.

Hong Kong

Baroness Falkner of Margravine Excerpts

Tuesday 25th November 2014 Lords Chamber

Asked by

[Baroness Falkner of Margravine]

To ask Her Majesty’s Government what is their assessment of the impact of recent events in Hong Kong on the prospects for democracy in that region.

[Lord Wallace of Saltaire (LD)]

My Lords, Hong Kong’s future is best served through a transition to universal suffrage in line with the Basic Law that meets the aspirations of the people of Hong Kong. As noted in our repeated statements, we call for rights and freedoms to be respected, and we urge all sides to engage in constructive dialogue and to work to build a consensus that allows a meaningful advance for democracy.

[Baroness Falkner of Margravine (LD)]

My Lords, does my noble friend agree that the pro-democracy protesters in Hong Kong have very genuine concerns about the pushback from the joint declaration of 1984, particularly with regard to judicial independence and elections? He will be aware that the chair of the All-Party Parliamentary China Group has just been denied a visa for China for the mere act of instigating a debate in the other place on the Hong Kong situation. Does my noble friend agree that the actions of the Chinese Government are imperilling Hong Kong’s status and stability, as well as destabilising the whole region?

[Lord Wallace of Saltaire]

My Lords, there were several questions there and I shall try to answer at least two of them. Hong Kong plays a very important part in Britain’s relations with China. It is also one of the most sensitive issues in Britain’s relationship with China. We regret the Chinese Government’s refusal to allow Richard Graham, the chair of the All-Party Parliamentary China Group, to take part in what would have been a very valuable exchange between Members of both Houses of Parliament and their Chinese equivalents, and we have made that clear to the Chinese Government at a very senior level.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, I entirely agree with that. On the whole, the demonstrations in Hong Kong have been handled well and they have continued peacefully. Recently, some of the student leaders of the demonstrations conducted discussions with the executives of Hong Kong on television. There are not that many countries in the world where that would be possible on quite such a peaceful basis. Therefore, there are aspects of the joint declaration and the Basic Law that are very fully observed.

[Baroness Falkner of Margravine]

My Lords, I think I understood my noble friend to say that he believed that the British Government did not feel that judicial independence had been jeopardised through the White Paper. Would he like to tell the House how requiring judges to be patriotic without defining patriotism is upholding judicial independence?

[Lord Wallace of Saltaire]

My Lords, there may be people inside the Chinese Government whose sense of the importance of the distinction between the different aspects of government—legislature, Executive and judiciary—is a little less highly developed than it is in the UK. However, I suspect that in some aspects of British politics, and possibly some newspapers, there are those who would think that judges who could not describe themselves at patriotic were not appropriate judges, even in the UK. I am not at all saying that Her Majesty’s Government are pleased with that.

European Union: Reform

Baroness Falkner of Margravine Excerpts

Tuesday 10th June 2014 Lords Chamber

[Lord Wallace of Saltaire]

I thank the noble Lord for his complimentary response, as usual. I merely emphasise that reform is a process. We are negotiating with other like-minded Governments. I am sure that the noble Lord has seen the reports from the Dutch and Danish Governments on EU reform. As you know, the Prime Minister is in Sweden talking with his Dutch, Swedish and German counterparts today about a reform agenda. We are therefore working with others to change the EU so that it faces in the sort of direction that we need. Of course we are not spelling out exactly what we would want and what we will say no to unless we are given everything we want, because that would lock us into the sort of negotiation that would be one against 27 rather than a collective multilateral negotiation, which is what we need.

[Baroness Falkner of Margravine (LD)]

My Lords, does my noble friend agree that the danger that the noble Lord, Lord Davies, is tempting us into with regard to specifics is the drawing up of wish lists and red lines that would automatically lead to Brexit should they be unfulfilled, and that the more pragmatic approach that my noble friend talks about is to see what the composition of the institutions looks like, to see what happens after May 2015 in this country and then to devise a negotiating strategy in pursuit of those practicalities?

[Lord Wallace of Saltaire]

My Lords, if one looks back to the Prime Minister’s Bloomberg speech, now over a year ago, it is clear that we have already been making progress on reform. We have seen the quite remarkable reform of the common fisheries policy, for which we have been working for years, and a budgetary agreement that for the first time reduces the EU budget in real terms. Reform, I repeat, is a process in which we work with other like-minded Governments, and on which we are already making progress.

Coalition Government: Constitution Committee Report

Baroness Falkner of Margravine Excerpts

Tuesday 13th May 2014 Lords Chamber

[Baroness Falkner of Margravine (LD)]

My Lords, I cannot help but start by thanking our chairman, the noble Baroness, Lady Jay of Paddington, for the service that she has given to the House in chairing the Constitution Committee. Her seniority, her experience and, above all, her effortless charm in keeping us to the disciplines—there are quite strong personalities around the committee—were in play in almost every meeting. We will miss her. It will be very different to serve on the committee without the noble Baroness.

In 2010, I had the honour of being the first Liberal to speak from the government Benches in a new Parliament in the post-war period. The last time the Liberal Party had come into government was in the 1930s. Therefore, it has not been entirely surprising to me that Britain’s constitutional conventions over the past 80 years or so have been formed on the basis of single-party government. We had much material to work on in this inquiry but, as our report points out, the pluralism of party politics that the public have now embraced is a trend that may well continue for some time. Our inquiry therefore had not just to look carefully at the events of the past four years but to anticipate other permutations and formulations that might be thrown up in future.

In my coverage of the report, I want to highlight just a few points. The noble Baroness, Lady Jay, gave a comprehensive view of most of our findings but, particularly in the light of the peroration of the noble Lord, Lord Strathclyde, it is important for me to illustrate and highlight some of the more dramatic moments in our deliberations on this report.

I was a member of the Constitution Committee at the time of its report on the Fixed-term Parliaments Bill. While I heard all the arguments, I continue to be slightly surprised that the idea of a fixed term continues to frustrate constitutionalists in some quarters. If it affects government formation negotiations by making parties look at alternatives to minority government, surely that is a good thing. Minority government is the antithesis of the stability in decision-making that is needed for the economy, business and policy planning; in my own area of work, it is seen as extremely damaging to the conduct of foreign affairs. That is not the reason why the public are opposed to it, but we also know that the public are opposed to repeat elections. I therefore agree with two of our witnesses, the noble Lord, Lord Adonis, and Oliver Letwin, who told us that having fixed-term Parliaments allowed Governments to plan for five years, thereby enabling them to think long term.

I also emphasise the importance that the committee placed on the right versus the duty of an incumbent Prime Minister to remain in office until a successor is identified, particularly as we come up to the 2015 general election. The one observation that I would make in that regard is that, given the language deployed in the media in referring to an incumbent Prime Minister—the noble Baroness, Lady Jay, gave us some of the colourful highlights relating to the previous Prime Minister—it would be extremely helpful if the Cabinet Office undertook to advise the media on the desirability of this expectation and its place in our constitutional framework.

Let me turn to the convention of collective ministerial responsibility. We had a lively discussion with experts, witnesses and among ourselves about this during the inquiry. The report mentions the departures from collective ministerial responsibility as seen in 2013 when the two parties of the coalition voted in opposite Lobbies on an amendment to the Electoral Registration and Administration Bill. That decision was announced by the Deputy Prime Minister some six or seven months earlier as a response to the collapse of the House of Lords Reform Bill, so it did not come entirely as a surprise. I would have thought that, given the self-interest of the Conservative Party in those proposed boundary changes, seven months of reflection on what might happen might have led to the Conservatives reappraising their position on House of Lords reform, but it was not to be and we had a good debate about it.

The committee felt strongly that collective responsibility has served our constitution well and therefore emphasised that breaches of it should be rare and only ever a last resort. Moreover, it went on to recommend that a proper process should be put in place to govern any setting aside of the responsibility, stating:

“Such setting aside should be agreed by the Cabinet as a whole and be in respect of a specific issue”.

While I entirely agree with the recommendations of the committee as set out in paragraphs 77 to 79 where there is single-party government—particularly as collective responsibility was breached in recent memory in quite significant terms by the Labour Government—I do not think that we have been entirely realistic in these recommendations where they apply to coalitions. For example, the duty of the Cabinet as a whole to resolve differences is somewhat difficult when five members of the Cabinet are from one party and nearly 20 are drawn from the other. It is self-evident that the majority can always outvote the minority. My preference would be for the pragmatism of David Laws MP, to whom the noble Lord, Lord Strathclyde, referred, who felt that when agreements are made and subsequently diverted from there are naturally consequences for other agreements.

The noble Lord, Lord Strathclyde, has contested this version of history, so let me put to him that in my view the more fundamental breakdown of collective responsibility was witnessed in the House of Commons debate on the Queen’s Speech in 2013 when one side of the Government—the Conservatives—tabled an amendment on their own Government’s programme. The noble Baroness, Lady Jay, referred to this in her speech. The PM went on to give those Conservative rebels a free vote, although it was evidently not an issue of conscience, and we had the spectacle of junior Ministers voting against their own Government without any consequences. Our report states:

“Dr Stephen Barber … said, that ‘the acquiescence by the Prime Minister to allow ministers to vote “against” provisions in the Queen’s Speech ... is constitutionally more serious’ than the division between coalition partners over the boundary review amendment to the Electoral Registration and Administration Bill. This is because of the role of the Queen’s Speech as a vote of confidence in the Government … previously any minister who declined to support the government on the Queen’s Speech would have been expected to resign”.

In the instance of the Conservative rebellion on the Queen’s Speech, I took the opportunity to ask the Deputy Prime Minister, when on 9 April he came to have his annual evidence session with the committee, how that had transpired. If I recall correctly—I have not seen the transcript yet—the Deputy Prime Minister told the committee that the issue had not been raised in a Cabinet committee and was not even discussed in the quad. Therefore, in terms of a rebellion where the Prime Minister gave the Conservative rebels a free vote, the committee’s recommendation that these sorts of things must be discussed and a resolution must be sought within Cabinet clearly could not have applied, because the issue was not raised in Cabinet.

The last point that I will make about collective responsibility again relates to the noble Lord, Lord Strathclyde, for whom I have the profoundest respect, as he well knows from my interactions with him. The anecdote that he just told on how, but for his intervention, there were not meant to be any Liberal Democrat Ministers in the House of Lords was an example of a little breach of collective responsibility. If that sort of evidence were to come out, I would have expected it to be in the noble Lord’s memoirs, which we would be rushing off to Waterstones to buy. Saying it first in giving evidence to our committee and repeating it in the Chamber of the House stretches collective responsibility, because that discussion clearly took place in Cabinet. I fear that the noble Lord wishes to come back on that.

[Lord Strathclyde]

I shall say two things in my defence. First, I had not been appointed, so there was no collective responsibility issue. Secondly, and perhaps more important—this is something that I did not say but should have said—this was born out of a misunderstanding by the Deputy Prime Minister about how Ministers are appointed in the House of Lords. Given that the Liberal Democrats are so deeply federalised, he assumed that it was an issue that would be solved in the House of Lords, which is perhaps rather a different slant from the one that I gave in the first place.

[Baroness Falkner of Margravine]

I am sure that we all appreciate that clarification. Nevertheless, I am not sure that any of us will not use it to give Mr Clegg a hard ride next time, if there is a next time.

Let me conclude by coming to the role of the Civil Service. I will touch on this issue merely to say that both we and the Institute for Government, in its more extensive study, heard about the difficulties encountered by a junior partner in government, represented by a junior Minister, when commissioning policy advice. I wholeheartedly agree with the committee’s recommendation that Ministers should be able to commission confidential briefings from officials within their departments for the purpose of developing policy for the next Parliament without those briefings being disclosed to Ministers from their coalition partners. If this practice were not formalised, we would be in the invidious position whereby, although the Opposition would have access to Civil Service advice, as would the party that hosted the Secretary of State in the department, the Lib Dems, where they had only a junior Minister, would not have access to policy advice. That cannot be right. I look forward to the Government’s response on that matter and join the noble Baroness, Lady Jay, in expressing disappointment that the Government have not been able to provide a response before the debate today. I can only assume that the Government have failed to come to a collective view on this.

To conclude, it was a fascinating inquiry. Our witnesses were extremely knowledgeable and, particularly the political ones, often passionately engaged with the issues. I hope that the Cabinet Office will take the opportunity to act on the recommendations of this report. In so doing, it will lend clarity in future scenarios, when the public may yet again choose coalition government. The report’s recommendations on collective responsibility stand for single-party government as well, so the report contributes overall to good and accountable government.