European Union Bill

My Lords, perhaps it is for me to try to put this amendment back in its box, from which it seems to be rapidly escaping into fascinating issues such as reform of the House of Lords. I am not sure whether that is immediately germane to this amendment, which does not involve any transfer of powers or competencies to the European Union as far as I can see from the debate. I shall, if I may, abandon that and return to the amendment which the noble Lord, Lord Liddle, moved with fiery eloquence. He was frank enough to admit that the purpose of the amendment was an attempt to say, I think his phrase was, the same thing in a different way. I shall try to avoid giving the same answer in a different way, but I am afraid that the answer I am going to give will not please him very much. Anyway, I will do my best. The amendment seeks to extend the scope of the significance condition beyond the two types of transfer of power identified by Clause 4(1)(i) and Clause 4(1)(j). We had a similar amendment, did we not, in Committee? I explained at that stage that the significance condition as drafted applies only where there may be a proposal for treaty change under the simplified revision procedure which would result in a transfer of power—I shall come to the competence issue in a moment—from the UK to the EU, as defined by the criteria in Clause 4(1)(i) and Clause 4(1)(j), namely treaty changes which seek to impose or extend a requirement obligation or sanction on the UK. It is only then that an assessment by the Minister is required as to its significance. As I said at the time, the significance condition is applied deliberately to such a limited range of proposals in order to establish a transparent and un-fuzzy, un-grey, unequivocal set of criteria, for Parliament as well as for the people, for which a referendum will be required under the Bill. We agree that a minor proposal concerning administrative procedure need not constitute a transfer of power or competence. Therefore, it would be disproportionate to have a referendum before the UK could agree. The whole tableau of suggestions that referenda would be applied to these minor matters that I have described simply does not arise. We also want to ensure that the amount of latitude for Ministers is limited to maintain consistency. That is a deliberate purpose of the Bill. However, the amendment would go the other way. It would involve the extension of the significance condition, which is of concern to the Government and is not in line with our purposes. I should make it absolutely clear that there would be no value in extending the significance condition to the criteria that are in Clause 4(1)(a) to (h). Those are the paragraphs that come before the two to which it does apply. Each of these criteria relates to a transfer of competence. At the beginning of the Committee stage, the noble Lord, Lord Kerr, pointed out accurately that measures under the simplified revision procedure cannot be used to extend the EU’s competence; Article 48(6) of the Treaty on European Union specifically stipulates that. Therefore, to extend the significance condition, as suggested by these amendments would create a sort of loophole through which you could drive a coach and horses. Transfers of competence and questions of whether to give up UK vetos or emergency brakes in such very sensitive areas as tax, social policy, justice and home affairs—not at all trivial areas—will be left once again to the discretion of Ministers. They will determine whether the British people should be consulted. Therein lies the problem that we are all trying to address, and which has led to so much distrust and the feeling that Ministers will not necessarily be able to say no, which noble Lords on the Benches opposite urged as being the simple answer. Why do the Government not just say no? There is not sufficient confidence that that will happen because it has not happened in the past. Any move now to extend the significance clauses in the way suggested would leave the British people with very little confidence that the Bill will prevent a repetition of the past, when powers and competences were transferred to the European Union without people being given the say that they were promised. The noble Lord, Lord Empey, said in Committee: "““Disillusionment has crept in because over a prolonged period of years Governments of different persuasions have made promises on these matters which they simply have not kept””.—[Official Report, 26/4/11; col. 72.]" That is where the difficulty has arisen. That is the problem that we are addressing with the aim of strengthening public support for the Union, which is not strong, particularly at a time when the Union faces difficulties. I hope no one is suggesting that there are no such difficulties; they are being faced. The system, our commitment to it and our membership need public support. We must overcome that disillusionment. Without the parliamentary and referendum locks—both of which are in the Bill, as we know—that we seek to include, we could condone so-called competence creep. It is possible; we have at least to ask whether it could be condoned through the simplified provision procedure, even though, technically, the TEU rules that out. I certainly do not suggest that the EU has tried or will try to smuggle transfers of competence past member states. However, while the Union is grounded in law and must operate within the express limitations of the treaties, we must remain vigilant to any proposal under Article 48(6) that might be aimed at doing just that. That is why we have arranged and crafted the Bill to ensure that Parliament will have a full and effective role in overseeing and interrogating the judgment of Ministers, and in assessing whether a transfer of competence may be taking place under a particular proposal. That is a clear message sent by the Bill—that the people and Parliament will have their say on specific treaty changes and measures—and it is a more effective route to a more open and accountable relationship between the UK, its peoples and the European Union. In Committee, the Government were accused of cynicism by some noble Lords for including the areas that we have in the automatic referendum lock. I suggest that the referendum lock that is easy for Ministers to pick and dismantle would itself lead to an increase in public scepticism that decisions taken in their name at the EU level are made without their consultation or consent. The amendment would deliver exactly this state of affairs. It would replace the clarity and certainty of the Bill with obfuscation and opacity. The Government intend to bring the UK’s relations with the EU into the light. We can only do that if we are prepared to move away from these grey areas that are constantly being sought by these various amendments and defend our actions clearly to this House and to the people. The noble Lord, Lord Liddle, had some further remarks on a theme that has run through many of these discussions; namely that somehow the Bill would weaken our hand in the European Union, marginalise us and prevent Ministers from dealing with certain situations that lay ahead. The Bill will have no impact on the UK’s ability to play an active leading role in negotiating and shaping the legislation agreed in the European Union out of the provisions of the existing treaties. The day-to-day business of the EU is not within the scope of the Bill. The effect on our negotiating hand for changes is not in question. We can, and will, still continue to participate and negotiate in any treaty change or use of the passerelle without hindrance. Any proposition to the contrary is not founded on the facts or practice. I return to the remarks that I quoted and which the noble Lord, Lord Kerr, elaborated on. The European Scrutiny Committee asked our very distinguished permanent rep in 2003-07, Sir John Grant, how he might have operated had the Bill been in place. He replied that, "““since by definition the Council’s working groups and the Council of Ministers worked within the competence of the EU and as there could be no negotiations on legislation where there was no competence, the Bill, which concerns itself with competence or changes in voting procedure, would have made no difference””." Here we have the voice of reality, of the practitioner, speaking against the theories, extravaganzas and possibilities that remain ill defined and do not coincide with the way that the European Union works. The whole proposition that there must be add-ons of power, additional treaties, an abandonment of vetoes and transfers of power to the European Union is a vague future pattern that simply does not fit with the reality of how the European Union is developing and is tackling all sorts of issues. No doubt there will be crises ahead. Of course there are crises. However, there are competences to deal with the crises. There are all sorts of operations and patterns that can be developed to meet these things. The noble Lord talked about Jean-Claude Trichet talking about the day after tomorrow and the possibility of a finance minister emerging—a sort of grand treasurer of the European Union. The idea that such things are possible, that propositions on such major and central issues of our sovereign control of our finances could be brought forward without the consultation of the British people, is absolutely incredible. I hope that these matters do not come forward. However, if they did, they would raise very important issues that would excite considerable public comment and attention and deal most intimately with out national interests and plans. We would have to start thinking about that which the noble Lord, Lord Liddle, talks about. This thinking ought to lead rapidly to ways in which we could deal with these issues in a co-operative and practical way. However, if it came about that there was an overwhelming demand and conviction that there should be a new treaty throughout the whole European Union, it would certainly have to be put to the people. The idea that it would not be put to the people is absolutely incredible.