European Union Bill

My Lords, I am, as I have said, in danger of repeating myself in these long debates. As I said in Committee, however, it would be completely unprecedented to bring a sunset clause into this kind of legislation, which has constitutional implications and addresses constitutional developments of a kind which have already gone on in the past. The noble Lord, Lord Triesman, in his eloquent summing-up from his side, talked about profound constitutional change. For many people that has already recurred. That is the problem. That is where we are. That is where the disconnect begins. That is where people feel that great changes have taken place but that Governments have not give them adequate assurance that they were in their interests. It is to give people in this modern age of changed patterns of democracy—still a very democratic age, still a very powerful parliamentary age—a say in profound constitutional change that we are putting forward this Bill and seeking to construct something for the longer term. A sunset clause, I have no hesitation in saying, would terminate that say. It would seriously undermine our attempt to reconnect the British people with the European Union and with the whole European project as it evolves. It would weaken the whole momentum that we all want to see maintained—and I have been involved in European Union affairs probably as long as anybody in this House—in order to have a healthy European Union that has the popular support and consent in the 21st century which at the present it evidently and dangerously lacks. We need to focus on that point again and again unless we want this trend to grow worse. The view has been expressed again and again, in this amendment and in previous discussions, that the Bill is an attempt to bind future Parliaments. I have to say again—I am not just saying this as a debating point—that that is simply not so. It is not just an exaggeration, it is a canard. It is a well established constitutional principle—to which we have rarely adhered over some say 200, some say 300 years—that no Parliament can bind its successor. It will always be open to future Parliaments to repeal some of the provisions of a Bill, including this Bill, through primary legislation, just as it is possible for this Parliament to seek to repeal or disapply any existing legislation which may well have been painfully and sincerely built up by previous Administrations. In fact this Administration, the coalition, have inherited many aspirations and some excellent work from the 13 years of the previous Labour Government. It has been done. We did not at the time sit over there and say, ““You mustn’t pass these laws because although we like them it would be binding future Parliaments””. That is absurd. I will return in a little while in more detail to the non-validity of the whole line of thought that somehow there is a binding of future Parliaments in the Bill. If the Bill were to have disastrous effects on the UK’s relations with the European Union and tie our Ministers’ hands—all of which effects also are canards because they simply do not begin to match with the reality, which is of course that Ministers will be absolutely free to negotiate, deal and involve ourselves in the many articles under the enormous competencies at present available to the European Union—there is a remedy: the Bill can be amended or repealed. In fact, the Government resisted amendments in the other place that would have entrenched the provisions of the Bill and made repeal more difficult. So although we hope that the provisions of the Bill will become an enduring part of the UK’s constitutional framework—that is a perfect, sincere, legitimate and well founded aim and ambition—we did not think it right to single this Act out to be entrenched. However, we do think that it is right that any repeals or amendments should have to go through the same rigorous process as the original Bill. We do not think it right that the powers that the Bill gives to the people and to Parliament should just be snatched back or taken away in a cavalier fashion by minor arrangements. In other words, amending or repealing parts of the Bill should be done through a further Act of Parliament, which is the usual approach for primary legislation. I make that point at the beginning because we have seen common misconceptions run through Committee day after day, and they are not founded on fact, reality, present practice or past experience. Another misconception repeated today—I was bold enough to intervene when the noble Lord, Lord Richard, was speaking about it—is that the Bill will not apply until the next Parliament. I do not understand how that idea has crept into the debate and gets repeated and repeated, because it is simply not the case. Within three months of the Bill coming into force, as I hope it will, we will use its provisions to make a statement on whether the recent European Union treaty change to Article 136 constitutes a transfer or power competence. As we think that it does not, we will then introduce a Bill to ratify that change. Without the EU Bill, none of that would happen. The noble Lord, Lord Triesman, is right: that will not trigger a referendum because of the items under Clause 4(4). However, the Bill will certainly operate and apply in this Parliament to a treaty change that goes through the necessary procedures in this Parliament. It is true that we do not expect to hold a referendum under the Bill during this Parliament, because the coalition Government have said that that they will not agree to any treaty or passerelle that could transfer competence or power from the UK to the EU in this Parliament. However, the existence of the Bill is still a binding force. It is binding on this Government and their actions and views. What I have stated is a political view and an intention of the coalition. It is not the will of Parliament or some entrenched and deep unavoidable force. It is the will of the Government. As we know—perhaps I should not add this point—it is possible for the will of the most determined Government suddenly to go into little U-turns and reverses from time to time. It has happened to us all. The Bill provides for the promise that we have made, and for that promise to be tested. I hope that we can stand up to the test. It provides an additional safeguard of a referendum should the Government fail to keep their promises. In short, it is complete nonsense to assert—and for some reason people I admire very much in this House have kept asserting—that the Bill somehow does not apply to the present Government and the present Parliament. Of course it applies. It will apply from the moment it reaches the statute book. I also point out that the same noble Lords are coming at the Bill from two opposing directions, which makes defending and promoting the Bill a little confusing for those of us standing in my position. On the one hand, we have had the heavy criticism that it could lay us open to frequent and trivial referenda. The more that one examines how the whole system of Brussels works—works today and has worked in the past, as many noble Lords know very well—the more obvious it is that that will not happen. Yet in the same breath we are criticised for saying that we do not expect there to be a referendum in the next four years. Both those propositions simply cannot be true. Noble Lords raised the concern that we are setting a precedent for the extensive use of referendums in areas to which they are not suited. First, I do not think that it will be extensive. I will come to the point about the seriousness of the issues to which various items in Clause 6 and Schedule 1 relate, but we are certainly not the first British Government to devolve power to the British people to decide on important issues. Just think back to the Scottish and Welsh devolution referendums at the end of the 20th century, or those for regional assemblies. We would not be alone among member states in having requirements for referendums on EU matters; one has only to look to Denmark, Ireland or the Netherlands for examples. Indeed, I am advised that only five member states of the present 27 have never held a referendum on an EU matter. The sunset clause proposed would set a thoroughly undesirable precedent. It is perfectly true that sunset clauses have been used, for example, where the policy is time-limited, as some of my noble friends said and the noble Lord, Lord Risby, pointed out, as is the case with the Public Bodies Bill, or where there is a need for parliamentary supervision of short-term emergency measures such as those relating to counterterrorism, as was pointed out by some of my noble friends. However, sunset clauses have not been used to limit the applicability of legislation on a long-term policy. It would be completely the wrong message to provide for a means to consult the British people on important issues only to use an obscure technical device to remove that provision before it could be used. In this case we are not talking about a sunset clause to limit the powers of the Executive—the high and mighty Government—which should, after a while, be removed again. We are talking about a sunset clause to limit powers that have been given to the people: powers that have been devolved from the central authorities, with Parliament fully involved all the way along. Another canard in all this is that Parliament is not involved in any of these arrangements and the referenda processes where they do occur. Clearly the proposition in this case that a sunset clause would limit the powers of Government is upside down: it would limit the powers handed over to the people. The noble Lord, Lord Grenfell, rightly said that, in this case, it really is different. There is a huge difference. The difference is that we would be seeking to limit and take away powers that had been devolved from the central authorities and from the state instead of using the sunset powers that we normally have to limit the powers of the state for certain purposes over a certain length of time. If I sound a shade negative to your Lordships, one aspect on which I would like to strike a more positive note is that I welcome very much the acknowledgement put most eloquently by my noble friend Lady Williams but echoed by others that there now seems to be general acceptance of the provision for a referendum lock on key constitutional issues. There is also consensus on the provisions in Part 1 giving Parliament greater control, which is very good. That is certainly an advance. I suppose that one is left with a little puzzle. If this is now accepted as the right way forward, why would we want a sunset clause or legislation to question all those principles? The only difference that remains between us—and it is getting narrower—is what those fundamental issues of constitutional significance are. The Bill is complex, as I recognised the other evening when answering the noble Lord, Lord Rowlands. It sets out a whole range of what look like small issues but are in fact the wires sticking out of the six big, red-line issues that are of fundamental constitutional importance. Some of your Lordships have found difficulty in grasping that and yet here they are before me. Under my hand are the six great issues of foreign and defence policy, justice and home affairs, citizenship and elections, rights of membership and enlargement, social security and employment policy, and economic and tax policy. Successive Governments, both before and after the Lisbon treaty, have said that these matters must be ones of great significance to our country and that we do not intend to see any further transfer of power or competence in these areas—or, if we do, we have to put a very good case to the people and they should have a say. The proposed new clause goes the other way. It risks disconnecting the British people from important decisions being taken in their name. It removes the certainty that the Bill provides and leaves an unstable foundation for building a better relationship between the people and the European Union. I will say a word in detail about sunset clauses and legislation because that is what the amendment is about and we must focus precisely on its provisions. I repeat that a sunset clause in this legislation would be an undesirable precedent. We have used sunset clauses elsewhere in legislation, for example where the policy objective is time-limited—as is the case, as I have already said, with the Public Bodies Bill—or where there is need for parliamentary supervision of short-term emergency measures. However, they have not in principle been used to limit the applicability of legislation on long-term policy and certainly not for Acts which limit rather than expand governmental powers. That is an extraordinary inversion of the past use of sunset clauses. Prior sunset clauses have generally been for cases where power has been given to the Executive to act on a given issue for a given period of time. The contrast with what is proposed in the Bill is glaring. The Bill seeks to devolve power from the Executive to Parliament and the British people. The amendment would take that power away and in effect give it back to the Executive. That is the big difference. If your Lordships want happily to validate the taking away of power at a certain point in the future from the people then let the amendment go forward on that basis, but it seems a profound rejection of the whole spirit of this age in which we seek to devolve power to the people and not take it from them. We are all aware in your Lordships’ House that we have set out a new approach to reducing regulation by requiring some form of sunset provision for all new regulation where there is a net burden or cost to business. That is in order to reduce the regulatory burden that unnecessarily halts growth, reduce the overall volume of regulation, help improve the quality of design and so on, and ultimately reduce the cost of regulation on business and society. None of these aims will be fulfilled by including a sunset provision of any type in this legislation. Moreover, it has previously been claimed that, where there is a proposal for legislation that would address short-term or specific policy aims, there should be a sunset provision included in that legislation so that it expires once the aim has been fulfilled. That was part of the argument given in favour of the sunset clause put by this House into the Fixed-term Parliaments Bill last month, and was part of the rationale for the inclusion of a review clause in the Prevention of Terrorism Act six years ago. Those things make excellent sense. The Bill is not being proposed to address a short-term issue. That is not what we are doing. The erosion of trust between the people of this country and the people who serve them and make decisions on their behalf on whether to transfer further powers or competence to the European Union means that we need to do something now. What we do should become part of an enduring, constitutional framework so that the British people can have their rightful say on the issues where they want one. The noble Lord, Lord Triesman, touched on this—that the matter ought to ride above political parties. It is in the interests of the established structure of this Government that we can develop a pattern and framework of this kind. I find this extraordinary, though I can see some people’s motives here. I suspect that some of those motives run very deeply and sincerely into issues about our whole attitude to the European Union. The general proposition that we should provide this kind of lasting framework, and not one that you simply knock out with a sunset clause, ought to be supported by all political parties and indeed by those of independent mind who play a key part in the legislature and work of both this House and Parliament generally. It is our firm intention that the provisions of the Bill should become an enduring part of our constitutional framework. That is not a new proposition. Other areas of policy have been established successfully on a long-term basis. I gave the example in Committee of privatisation. A previous Government of whom I was a member established the privatisation provisions in the hope that they would endure—they have done. That was not binding a future Parliament but setting out a new pattern of industrial structure and accountability in this country which endured. I do not remember anyone in the successor Government under Mr Blair saying that they had been bound in some wicked way by the previous Tory Government. It has always been open to Parliament to repeal or disapply the relevant legislation. There are lots of other examples. The national curriculum was set up more than 20 years ago and the essence of it remains in place today. There was the devolution of Scotland, Wales and Northern Ireland, approved by a previous Parliament. The Governments of whom I was a member did not feel bound by that. Then there is the European Communities Act itself. In short, the amendment would be going back to the old ways. It would take power to the centre again, back to the central authorities and to ministerial discretion. The principle behind it seems to be that we had better not put these matters to a referendum, or not for long, because people might be wrong. I am reminded of Bertolt Brecht’s sardonic remark that when the government and the people disagree the answer is to change the people. That is the implication behind those who seem to shy away all the time from sharing parliamentary power with the people through appropriate referenda at the appropriate points. That attitude belongs to the 20th century. The Bill belongs to the 21st century and those who support the amendment tonight are looking backwards, not forwards. They should withdraw the amendment, which damages the Bill to the point of destruction.