European Union Bill

My Lords, I fear that that is a good example of taking part of an argument, which I wish to develop much more fully, and giving it a particular boost. That is just one of a whole series of reasons why there will not be referenda over trivia and over small issues, which will come out separately, and why these matters simply will not arise. I could straight away give a long list of other reasons why it will never happen. Where there is no transfer of power or competence anyway, there will not be a referendum. There are plenty of powers already, as the noble Lord, Lord Liddle, has said. Where it does not apply to the UK, there will be not be a referendum; as with the current treaty change going through. Where there are accession treaties, there will be no referendum—not in this country anyway. Where there is codification under existing competencies there will be no referendum. Where there are significant tests—we have yet to debate that in full—there will be no referendum. So there are five other reasons, as well as the question of the package, why we will look at these things in a mature and rounded way. It is really quite pointless citing one issue and trying to project it to be the explanation of the whole situation. When you look at the whole situation it is perfectly clear that there will not be a whole series of tiny referenda on complicated issues that people will not want to vote for. That applies to almost everything that has been mentioned in this debate, including—I would love to dilate on it but it is probably out of order—the whole question of the European public prosecutor’s office, on which the noble Lord, Lord Goodhart, is a great expert. We are going to debate that in Clause 6. Certainly it is one of many issues that may well come up, but the chances of it coming up as a separate issue as part of a treaty change, to which the Government would then agree and that other nations would all agree to, are very remote indeed—in fact, I would say, non-existent. At this stage, it might be worth going over some of the essential points from the lengthy debate we had at the start of the Committee stage on the role of Article 48(6) of the Treaty on European Union and the rationale for Clause 3, which I mentioned in an exchange with the noble Lord, Lord Kerr, a little while back. There are two types of treaty change. This does not seem to be totally understood. I will try my best to remind your Lordships what they are. There is the ordinary pattern which requires an intergovernmental conference and the simplified type of treaty change which does not require an IGC. Both of them result in an amendment to the treaty and so both should be treated in the same way. It is not right as the noble Lord, Lord Liddle, said in the earlier debates that the whole point of the passerelle is to dispense with the paraphernalia of treaty change. It is not true. It has the same elaborate systems of treaty change through the simplified revision procedure as does the ordinary revision procedure. People simply will not understand that because one method of treaty change is being used a referendum would be required yet if the same treaty changes—in this case dealing with powers rather than competencies—were being proposed and agreed under the other type of treaty change, then it would not be required. It is just that kind of incoherent approach which will go against the Bill’s aims—they may be disputed by noble Lords opposite but they are our aims—of regaining some of the trust of the British electorate and seeking to reconnect them. It would leave people completely baffled—it would certainly leave many of the experts baffled—and not enlightened at all. Several of your Lordships wanted to ascertain what we mean by transfer of power and wanted us to give examples. Again, if I did not give enough examples at Second Reading or earlier in the Committee stage, I will try to do so now. There was confusion over the term ““power”” relative to ““competence””. As I tried to make clear at Second Reading and during the previous debate, ““competence”” is a term set out in the EU treaties, but ““power”” clearly is not. That is why we have set out in Clause 4(1) what we mean for the purposes of the Bill by the transfer of power. I want to elaborate on that. The first would be a move to qualified majority voting in those areas set out in Schedule 1 to the Bill which are currently decided by unanimity, consensus, or common accord. It is a long list in that schedule, I agree, but that is what the schedule is about. For example, the removal of the veto on legislation proposed under Article 77(3) of the Treaty on the Functioning of the European Union relating to passports and identity documents where potentially a piece of legislation could lead to the introduction of an EU-wide identity card scheme or a common European passport. The second would be any proposal to amend or remove one or more of the emergency brake provisions of the treaties, which we will look at in much more detail when we come to Amendment 21.The third would be if a treaty amendment conferred a new or extended power on an EU institution or body to impose a requirement or obligation on the UK, or removed any limitation on such a power. That indeed would be a transfer of power. The fourth would be if an EU institution or body were conferred with, or empowered with, a new or extended power to impose sanctions on the UK. It is the last two transfers of power covered in Clause 4(1)(i) and Clause 4(1)(j) which are subject to the significance condition, to which I will come. Some of your Lordships expressed the view that the giving up of the veto was not a transfer of power. That is a good point. We disagree with it. We believe it clearly is and is seen as such in public debate and in public concerns. Giving up a veto would remove the UK’s powers to block legislation in sensitive areas and has done so in the past. To be clear, we are not proposing a referendum before the UK can agree to legislation based on articles in Schedule 1. We are proposing a referendum before the UK can agree to a treaty change giving up its right to veto such legislation. That is where a transfer of power would take place. Perhaps we should also be clear that there is no consensus or appetite in the EU to remove these vetoes, and this Government would not agree if there was. We also made clear that we were confident that this would not lead to referenda on trivial issues, a matter to which I have already referred. As a further safeguard—I mentioned it in the list in replying to the noble Lord, Lord Hannay, a moment ago—we have proposed the significance condition in order to ensure that referendums would not be held on proposed transfers of power when they are on matters of little significance and where a referendum would clearly not be appropriate. I hope that meets at least some of the many observations of those who appear to be convinced that there would be an endless stream of small referenda. We have proposed to limit the extent of the significance condition in Clause 3 only to Clause 4(1)(i) and Clause 4(1)(j), and only in relation to the simplified revision procedure. It is certainly true that the significance test and the significance procedure are limited. This is because under the simplified revision procedure the imposition of a new requirement, or obligation, or sanctions on the UK can be done only within existing competences. The noble Lord, Lord Kerr, was quite right to point that out at the beginning. Under the SRP you cannot transfer competencies but you can without doubt transfer powers. They may be considerable powers and considerable derogations from the authority of this country in very sensitive areas, which would not add to the popularity of the European Union and indeed might not improve their administration at all. The significance condition would mean that the Government of the day would be able to distinguish between significant and trivial changes that might not warrant the need for a referendum, and to explain this publicly and transparently to both Houses of Parliament. A good example would be a proposal to allow an EU agency to impose requirements on a national regulator. Such a requirement might well not be significant if it concerned co-operation between member states in the field of education, such as in sharing statistics on the number of hours of teaching for IT across the EU. It would obviously be inappropriate to have anything like that in a referendum. As your Lordships will recall from our earlier discussions on the simplified revision procedure, one of the constraints of this method of treaty change is that it cannot be used to increase the competences conferred upon the European Union. I am sorry if it sounds as though I am repeating myself, but it cannot be said too often. Now we are providing under this Bill for our Parliament to be given the chance to test that no such increase of competence is taking place, as part of our overall aim, to which we have referred again and again and to which my noble friends have referred in several speeches, of increasing trust and accountability. We will not solve these problems by these measures alone, but we believe that they will make a substantial contribution. If it were found that the simplified revision procedure had inadvertently been used to extend competence, the only option would be to require the treaty amendments to be resubmitted under the ordinary revision procedure. The EU is a creature of law and must act legally and not beyond its powers, so it would not be appropriate to say that, if a proposal for treaty change goes beyond what is permitted under Article 48(6) but the extension of competence is not considered significant, this change can be allowed under Article 48(6). That is why we cannot accept Amendments 17 and 18. Amendment 19 would extend the significance test to decisions under Article 48(6) to give up one or more of the vetoes in Schedule 1, or one or more of the emergency brakes listed in Clause 4. Here, again, we are not convinced of the merits of extending the significance condition to cover these two scenarios. That would go the wrong way. The list of areas where unanimity, consensus or common accord apply in the EU treaties in Schedule 1 is a list of what the Government consider to be areas in which giving up a national veto would be significant enough to require the prior consent of the British people. There are a number of other vetoes in the treaties which the Government consider not to be significant enough to warrant a referendum but where instead Parliament would be required to approve such a move by Act, such as Article 355(6) on the Treaty on the Functioning of the European Union and the EU status of Danish, French or Dutch country or territory, which obviously has few implications for the UK and would not touch us. The Government have already made clear that we consider the addition of a significance condition to be useful to help guard against referendums on trivial issues—a matter that has so concerned your Lordships—but we have also made clear that we consider that the Bill should set out as clearly as possible where a referendum should and should not be required in the future, in whatever form in which it actually came in front of this nation and other member states throughout the European Union. As part of the Government's wider aim to reconnect the British people to the decisions that are being taken by Governments on the EU, we have made it clear that we want to play a perfectly straight bat and set out precisely where a referendum would or would not be needed. A significance condition with a wide scope, for which these amendments push, would do little to achieve this ambition and would even exacerbate the problem by increasing cynicism and inconsistency, as each time a treaty change is proposed the British people would know that it would still be down to the Minister to decide whether he or she, or the Government of which he or she was a member, thinks such a treaty change is significant enough in their view to put to the people. That is precisely the status quo that has led to the sensation of what has been called competence creep but which can also be described as power creep—a feeling that stealth and non-transparency are prevailing—and which has undermined the general public consensus on the virtues and achievements of the European Union of the kind that exists on the virtues and achievements of NATO, of the United Nations and of the other great institutions of the 20th century but that has not been accorded to the European Union. Instead of the clarity and transparency offered by the Bill, the amendments would leave us with the distant and disconnected approach, described by my noble friend Lord Risby and others, that has driven UK approval of these decisions in the past. All the long-standing accusations of decision-making behind closed doors without public consent would therefore still hold true.