European Union Bill

My Lords, I shall also speak to Amendment 39B. These are probing amendments. We are not saying they are perfectly drafted but they are an attempt, as always from this side of the House, to be helpful to the Government. They are an attempt to substitute a parliamentary process for the Government’s attempt to define in the Bill every single circumstance and change of rule to which their referendum lock would apply. Instead of trying to define all the circumstances in the Bill, these amendments propose a parliamentary process by which the issues would be determined on a case-by-case basis. They represent a new subsection (4) to Clause 6. We put forward two options, which I will explain in a moment. The basic difficulty with the Government’s approach to this Bill is that it requires an extraordinarily long list of issues to be codified in legislation that are subject to the so-called referendum lock. Heinz talked about its 57 varieties. This Bill has 56 varieties, we count, of referendum lock. These are not just major new treaties. It has become clear in our consideration of the Bill that a lot of changes within existing treaties would be subject to this lock. The Bill allows Ministers but not Parliament some very limited discretion to decide that the referendum lock does not apply in limited circumstances that we have debated in our earlier sessions: the exemption clause under which Ministers can decide that the matter does not affect Britain or is simply a codification of existing treaties; and the significance clause, which is very narrowly applied to paragraphs (i) and (j) of Clause 4(1). A better form of exercising discretion and judging whether a referendum is required would be to put the matter in the hands of Parliament and not in the hands of the Government. In these amendments we sketch out two possible ways of doing this. Amendment 39A suggests the establishment of, "““a joint committee of both Houses””." This was proposed in roughly similar terms by the Opposition in the other place. Amendment 39B, which the noble Lord, Lord Triesman, and I think is a more interesting amendment, proposes the establishment of ““an independent review committee””, which would advise Parliament on what matters it regarded as requiring a referendum. We can all envisage what the composition of such an independent review committee would be. It would definitely contain constitutional lawyers, judges and constitutional experts such as the noble Lords, Lord Norton of Louth and Lord Hennessy of Nympsfield—they are plentiful in our House. It might contain a business person, a trade unionist, a representative of civil society and people from the nations and regions of Britain. Its purpose would be to advise Parliament on whether, in the particular circumstances that arise, a referendum would be a proportionate way of dealing with the issue in question. It would be given criteria such as whether it was a significant issue, an urgent issue that had to be dealt with in a short period, or a issue of national interest that required to be carried through swiftly. These issues would be discussed by the independent review committee, which would advise both Houses of Parliament on whether a referendum was justified. This idea is in keeping with the spirit of the Lords Constitution Committee’s recommendations in its report on referenda. It stated that referenda should be confined to fundamental constitutional issues, but acknowledged the difficulty of defining in a full list what those issues were. At the end of its list of recommendations, the committee stated: "““This is not a definitive list of fundamental constitutional issues, nor is it intended to be””." It seems that it is a very difficult thing to decide in advance. Therefore, it is right that there should be some kind of parliamentary mechanism that would decide what issues are of fundamental constitutional importance. On the question of how we do this, and the detailed set-up of a committee on such a process, we on this side of the House do not have a dogmatic view. However, we would seriously like the Government to consider this point as an alternative to the incredible complexity of putting in the Bill all the different varieties of referendum lock. That is the logic of our amendment. In my remaining time, I will say why this is a better way for the House to proceed. In the debate about whether referenda are required, a judgment should be made about proportionality. Is the issue really of fundamental constitutional significance, or is it a relatively minor issue that does not justify a referendum? The value of the judgment on proportionality was brought home to me when I listened to the very thoughtful reply that the noble Lord, Lord Howell of Guildford, gave at the end of last week's debate. I will try to summarise the Minister's argument without traducing him. He said that it was all very well for us on this side of the House and on the Cross Benches and other parts of the House to say that we were in favour of a referendum on the euro, but why then should we not have a referendum on common European defence, on participation in the office of a public prosecutor or on border controls? These issues, he argued, were as significant as whether Britain should join the euro. There is a point here of fundamental importance. The reason why we have to have a referendum on the euro is that one is either in it or out of it; it is a fundamental choice about whether one joins or not. However, issues such as a common European defence are much more subtle and require a judgment about proportionality. I do not want to criticise the Minister, for whom I have the greatest respect. However, in his argument on a common European defence policy, he stated: "““Allow me to elaborate on some of my remarks. A decision on whether to join a common EU defence is fundamental, as it could result in a common EU army””.—[Official Report, 9/5/11; col. 759.]" That is a total straw man in the debate about a European defence. Certainly it would be a fundamental constitutional issue if we were to set up European military forces. However, if one thinks about the realistic development of European defence in the next 10 or 20 years, we are talking about better rules for the harmonisation of defence procurement, which is a very practical matter. Does something like defence procurement really require a referendum? In the parlous state of our defence budget—we have heard today about how the Government are planning further cuts in defence—a practical man or woman would say, ““We have to have more practical co-operation in Europe on defence procurement””. Do we really think that this is an issue on which the British people think they should be voting in a referendum rather than that the people they chose to represent them in Parliament should decide? The same sort of argument about proportionality can be applied to other aspects of this Bill, such as the public prosecutor. We heard a lot from the Minister about how it is a fundamental issue in how we organise our legal system, but is it really? For instance, if it were limited purely to tackling financial fraud in the EU, surely this would be just practical common sense. In terms of proportionality, it is not a matter that would require a referendum, and nor would changes in Schengen. As a result of what is happening in north Africa, we may have to take steps towards much stronger rules on asylum, but is that something that fundamentally challenges our border controls? We need to make judgments about the proportionality of what is proposed, and in our opinion that can be usually done only by a parliamentary committee, ideally an independent committee, that looks at these matters.