§ Baroness Chalker of Wallasey
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Chalker of Wallasey.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Bruce of Donington moved Amendment No. 393:
After Clause 1, insert the following new clause:
Regulations and Directives: prior approval by Parliament
(". Her Majesty's Government shall not give approval in the Council of Ministers to any Regulation or Directive of the European Community, the European Union or the European. Central Bank under the Treaty on European Union unless the same shall first have been fully debated and approved by both Houses of Parliament.").
§ The noble Lord said: My Lords, the noble Baroness, Lady Chalker, will be aware, because I notified her office this morning, of the purpose of the debate. Although ostensibly it is covered by the amendments named, it is to obtain from the Government a precise account, a precise definition of our present position and the position (on the assumption that the Maastricht Treaty is ratified) 809 under the Luxembourg compromise. Hitherto, the compromise has been assumed to have afforded some protection to the United Kingdom where vital national interests are at stake.
§ There are quite a number of people for whom this is of little concern. Others in our country view with equanimity the passing of powers away from the Westminster Parliament to the European Community. Many take that view and it is quite understandable.
§ However, a number of noble Lords in this House and people outside it have from time to time been uneasy about the passage of power from the British Parliament to the Community. That has been accomplished not only through the original Treaty of Rome and as it emerged following the renegotiation in 1975, but also through the Single European Act and the treaty we are now considering. I believe the Committee will agree that to some extent they have derived some small comfort and reassurance from the statements that have been made from time to time by successive governments, who have sought to reassure them. But notwithstanding the treaties that have been concluded and the documents that have been signed, in the last resort if vital national interests are affected they can be taken care of. If the Committee will bear with me for a moment, I shall give some examples of the kind of reassurances that have been given, and I believe probably accepted by the British public to whom the observations were addressed.
In the committee report Cmnd. 4715 in 1972 (some 20 years ago) the then government said:
On the question where a government considers that vital national interests are involved it is established that the decision should be unanimous".
That was also reinforced at the time of the famous referendum of 1975, when the Government issued to the populace at large some explanatory memoranda explaining to them what the treaty meant in an endeavour to obtain public support for a continuation of the United Kingdom within the then Common Market. Fact No. 2 of the document stated:
No important new policy can be decided in Brussels or anywhere else without the consent of a British Minister answerable to a British Government".
That seems quite explicit enough.
Members of the Committee may recall the time when my noble friend Lord Stoddart and myself, speaking from the Front Bench on behalf of the Labour Party, sought to battle quite extensively against some of the provisions of the Single European Act. My noble friend and myself, and many others, once again raised the question of what the fallback position was. The noble Baroness, Lady Young, said:
The Luxembourg Compromise is not, and never has been, a provision of the European Community treaties. It is a political understanding based on the so-called Luxembourg accords of 28th and 29th January 1966, and, as the noble Lord, Lord Bruce, quoted from the letter that I sent him, I went into some detail on this point".—[0fficiu/ Report, 17/10/86; col. 1084.]
The noble Baroness went on to define what the Luxembourg compromise then was and said that the member states declared that:
Where in the case of decisions which may be taken by a majority vote on a proposal of the Commission very important interests of one or more partners are at stake,
members of the Council will endeavour within a reasonable time to reach solutions which can be adopted by all the members of the Council while respecting their mutual interests and those of the Community in accordance with Article 2 of the treaty".—[Official Report, 17/10/86; col. 1084.]
The noble Baroness went on to say that the French delegation considered that:
Where very important interests are at stake the discussion must be continued until unanimous agreement is reached".
It is that French declaration which constitutes the basis of the Luxembourg Compromise".—[Col. 1084.]
The noble Baroness went a little further than that. She was anxious to assist in the matter and she fortified her opinion by saying:
That the Luxembourg compromise is unaffected by the Single European Act is not just the view of the United Kingdom. Our view was supported in a recent survey of the Single European Act by an independent and prominent law firm specialising in Community law which said:
'The continued resort to the Luxembourg Compromise is in no way prohibited even in the new areas open to majority voting'.
It is also borne out by a statement issued by a French Government spokesman in September  when he said:
'The Council of Ministers will be able to decide by qualified majority more frequently than at present without in any way bringing into question the ability of a member state to invoke the Luxembourg Compromise when a question of vital interest is concerned".—[Official Report, 17/10/86; col. 1085.]
So far the Government have been pretty unequivocal about the matter. My noble friend Lord Stoddart and I ventured to express some doubts about it at the time, and on our joint behalf I said:
I am satisfied that in the final analysis the veto is no longer effective".—[Col. 1085.]
Regrettably, as I shall seek to show presently, we were quite right. Nonetheless, when the same question was asked, the noble Baroness, in the course of the Second Reading debate which took place in this House recently, was able to say without equivocation that our position under the Luxembourg compromise was in no way affected by this Bill.
We now come into an area of dissent. According to the noble Lord, Lord Cockfield—who I am sorry to say does not seem to be in his place this afternoon —in the debate that took place on 24th June last, a quite different view was expressed. He referred to events that took place while he, at the same time as the noble Baroness, Lady Young, was there, was himself in the Cabinet and ought to have known what was happening. The noble Lord said:
When my noble friend Lady Thatcher was Prime Minister (Mr. Peter Walker was Minister of Agriculture and I also was a member of the Cabinet), she tried to veto a grossly excessive price increase. I hate to use the modern popular phrase, but she was told to get lost; and that is exactly what happened". —[Official Report, 24/6/93; col. 486.]
The noble Lord went on to say, in regard to Germany,
On the next occasion it was Chancellor Kohl of Germany who decided to veto a cut in the subsidy for cereals. My noble friend Lady Thatcher decided that she would not try to exercise a veto to prevent Chancellor Kohl stopping a reduction in the cost of the CAP. So what happened on two occasions, admittedly separated by two or three years, was that my noble friend Lady Thatcher, who after all is just as formidable a character as the noble Lord, Lord Bruce"—
Oh dear, oh dear, oh dear!—
on the first occasion was forced to quit the field and on the second occasion decided not to stand and fight".—[Official Report, 24/6/93; col. 486.]
The Committee will recall that I intervened in the debate at that stage to remind the noble Lord, Lord Cock field, of what actually happened in May 1982, which he acknowledged was probably the occasion to which he referred. What do we find? I ventured to remind noble Lords at that time—17th October 1986—of the events that took place in 1982, to which the noble Lord, Lord Cockfield, referred. I said:
There can be no doubt that we tried to exercise our veto in 1982 at a time when the right honourable gentleman Mr. Peter Walker was Minister of Agriculture…I quote from his account given to another place on exactly what transpired. This occurs at col. 352 of Hansard of 19th May 1982".—[Official Report, 17/10/86; col. 1082.]
Mr. Walker said:
Together with Denmark and Greece we strongly protested when the Presidency, encouraged by the Commission, announced that for the first time since 1966 the principle of obtaining unanimity where a very important national interest had been invoked was to be violated and that a decision was to be taken in accordance with the treaty arrangements for majority voting…I placed it on record that I considered that the conduct of the Presidency of the Commission and the member States which had joined in this procedure had created a very sad and damaging day in the Community's history and that the Council had quite unjustifiably chosen to depart from the established working practices based on the agreement reached in 1966".—[Official Report, Commons; 19/5/82, col. 352.]
§ I have a very simple question to ask the Minister. What is the present position? It is no good telling me or the Committee that the position is unchanged or unaffected or producing such Foreign Office and Civil Service jargon as may be fed in for the purpose of delivering it to this Chamber. I want to know the actual position. It can be one of two things. Either the British Government, if they consider that a vital national interest is at stake, can invoke the Luxembourg compromise, or the other governments participating in the meetings can override Britain's concept of its national interest and, on the basis of what they consider to be Britain's national interest, fail to assent to the application of the Luxembourg compromise.
§ A straight answer can be given to that question. Either we as a government—it is immaterial which political party is in government—can veto any proposal put forward under Maastricht or any of the treaties (we have that right if we consider our national interests are at stake) or our veto can be overridden. It is no good saying that the position is unaffected or is at it was before if that earlier position itself was unambiguous or contrary to the interests of the United Kingdom. The matter is very simple. If it can now be defined, there is some measure of reassurance. If it he true that this Government, or any succeeding government, on reviewing some of the asinine proposals that come from the Commission (supported by the other member states when it suits them, which in monetary terms it very often does) have the power to veto and that veto is effective, many of our anxieties will have disappeared.
§ The Liberal Benches will not be moved in a similar way because a sack of potatoes tied together, with the Treaty of Rome around it, is sufficient. I am talking now of the ordinary general public and some Members of the Committee whose misgivings over some of the provisions of the Maastricht Treaty may 812 have been alleviated and who may have thought that after all, if vital national interests were concerned, we could retain our sovereign independence in the matter. If that is the case, we can all be reassured. I should rejoice. I do not relish continuing this very detailed argument over what I consider to be a worthless piece of paper anyway. I beg to move.
The Earl of Onslow moved, as an amendment to Amendment No. 393, Amendment No. 393A:
Line 4, after ("unless") leave out ("the same shall first have been fully debated and approved by both Houses of Parliament") and insert ("such approval is given on the understanding that it is subject to withdrawal within 60 days if Parliament shall so direct').
§ The noble Earl said: The point of this amendment is to achieve supervision of treaties and actions under the treaty by Ministers. We have supervision in the Select Committees and it is admitted that they do very good work. We examine the treaties. But there is no means of retroactively amending a directive or a direction when it has emerged from the Commission. I believe that we should have such a power. It is a very simple but rather vital point. I beg to move.
§ Lord Jay
I reinforce the request that the question of the validity of the so-called Luxembourg compromise should if possible be cleared up once and for all. There was no doubt what it meant in 1966 when President de Gaulle made his famous pronouncement. It meant that if the government cif any member state decided that a matter was cif first-class national interest to that country, the decision overrode anything in the Treaty of Rome. It was not a provision of the Treaty of Rome requiring unanimity. In President de Gaulle's opinion it clearly overrode the whole machinery of the treaty. He expressed that in a rather picturesque and characteristic sentence. He described the Commission of the European Community as "a group of clever and perhaps useful men but not a government". The implication was that governments in the last resort took decisions and that the authorities in Brussels were what Sir Winston Churchill used to refer to as important functionaries. Fonctionnaires is no doubt the correct term. Thatwas the situation in 1966.
At the referendum in 1975, the main theme of the Government's publicity and the arguments of those who wanted a "Yes" vote were that 'we were wholly protected because the Luxembourg compromise allowed the British Government in the last resort to say that, whatever appeared in the Treaty of Rome, on a vital matter of national interest we could not be overridden. Some people, including myself, would. modestly point out that this was in no way included in the treaty and that we therefore felt there was a slight weakness in the validity of the Luxembourg compromise.
A few months ago Mr. Giscard d'Estaing, a former French president, made a speech in which he said that the Luxembourg compromise was no longer in force and had no validity today. Since that lime—only a few weeks ago—Mr. Balladur, the present French Prime Minister, said that the Luxembourg compromise was 813 in force and that the French Government contemplated using it in the matter of the common agricultural policy and the GATT Uruguay Round.
It seems to me profoundly unsatisfactory when we have to learn the truth about this matter from French politicians, however eminent; even more so, if they contradict one another. Much more might be said, but I feel that that is sufficient argument for asking, indeed appealing to, the noble Baroness to tell us exactly what is the validity of that compromise today, legal, political, moral or otherwise, so that we all know where we stand.
§ 3.30 p.m.
§ Lord Boyd-Carpenter
I do not want to enter into the debate on the issue on which my noble friend the Minister will no doubt reply; that is to say, the issue as to the degree of consent that this Parliament has to one of these measures. I simply want to invite the attention of the Committee to the extraordinary nature of the amendments.
Amendment No. 393, in the name of my noble friend Lord Tebbit, which was moved at some length by the noble Lord, Lord Bruce of Donington, says that for an order to be approved,the same shall first have been fully debated and approved by both Houses of Parliament".Equally, the amendment in the name of my noble friend Lord Onslow refers to,the same shall first have been fully debated and approved by both Houses of Parliament".That is the most extraordinary drafting. How anybody is to decide whether or not a matter has been fully debated I do not know. For example, if a matter is debated in another place and in due course a closure is moved, as it often is, would it be argued that the matter had not been fully debated and that therefore the approval which was given was invalid? Indeed, suppose in this Chamber, where we deal with these matters fairly sensibly, your Lordships agreed the Motion without debate or with purely formal debate. Would it be said that it was not fully debated and that therefore the agreement was ineffective?
I therefore leave the Committee with the point that, whatever the Committee's view on the general merits of the issue, the two amendments are badly drafted. They could not possibly be put into our law and will be utterly ineffective.
§ The Earl of Onslow
Perhaps I may be given the opportunity to answer that point. Nobody would he happier than I, if the general principle of debate was conceded, for the amendments to be torn up and for a government representative to write them properly. There is no argument about that. Nobody intends to push the matter to a Division. We are trying to discuss the actual problem which my noble friends and I believe that we have identified.
§ Lord Harmar-Nicholls
I wanted to say something similar. As he often does so well, my noble friend made a speech of "splitting hairs" upon the amendment. He may be right in regard to the wording. However, most of my objections throughout have 814 been that our power of veto has been taken away when, years ago, we were guaranteed that it would be there forever.
We should not raise further points which could obscure the main question —and which my noble friend could answer clearly—as to whether or not our power to veto stands as set out in the Luxembourg compromise. Are the French right? What is the position? We should not worry about whether or not the wording of the amendments is sufficient.
I greatly admire the way in which my noble friend splits hairs. He is right in terms of the literal position. But do not let it obscure a clear answer to a clear question on something which is vital to the whole issue.
§ Lord Boyd-Carpenter
Surely when it is proposed to amend the law it should be amended in a sensible form, whatever the motives or intentions. When a proposal which is put forward for amending our law is nonsense, it should be pointed out clearly and effectively, whatever the general view of the policies concerned. I am extremely surprised that my noble friend, who is normally so excellent in his determination to see that your Lordships' Chamber legislates sensibly, apparently does not mind nonsense being put forward.
§ Lord Campbell of Alloway
I do not want to enter into this discussion. It will not take us anywhere. In any event, the situation was made perfectly clear by the noble Lord, Lord Bruce—he was only moving the amendments as a peg upon which to hang a constructive discussion on an important subject. That is the spirit in which I wish to say a few words.
When we look at the text of the Luxembourg compromise, we see that it really was not a compromise; it was an attempt to make one. One cannot erect a political attempt to compromise into anything more than it truly was. That is why my noble friend Lady Thatcher—who is fortunately here —was unable, according to her lights, in her interests and in the interests of this country, to achieve a veto. It does not have within it the means of doing that. When one looks at the situation carefully we see why.
Article 3 says that the six delegations note that there is a divergence of views on what should be done in the event of failure to reach agreement. That is not a very propitious start. Only the French—nobody else appears to have done so—took the view that discussion at the Council of Ministers should continue until unanimous agreement is reached. Therefore the essence of the attempt to make a compromise was no more than appears under the first heading; that the Council of Ministers will endeavour, within a reasonable time, to reach solutions that are adopted. It is no more than that.
If that analysis is right—I truly believe that it is and I have the text in my hand—it is beside the main point to demand from the Government today any further interpretation. The position today is in fact what it was at the time when my noble friend Lady Thatcher sought valiantly to exercise a veto but was unable to 815 do so. Nothing has changed. It is an attempt at a compromise; it is not a binding compromise; it never has been and cannot be erected into such.
§ Lord Tebbit
Perhaps I may briefly comment on a couple of points that have arisen. I rejoice to hear what my noble friend Lord Boyd-Carpenter said in his advice to us that we should reject unclear or badly drafted legislation. I take it that he will vote against the treaty on Third Reading, otherwise he would appear to be straining at a gnat having swallowed a whole caravan of camels.
In response to my noble friend Lord Campbell of Alloway, I would say that his view is an interesting one. However, it neglected one point which was made so effectively by our noble friend Lord Cockfield; that is, that the Germans had exercised a veto in the Council over a matter of agricultural policy. The veto that they exercised was against a proposal to reduce prices, whereas the British veto, which was rejected, had been against a proposal to increase prices.
The Committee will recollect that my noble friend Lord Cockfield concluded from that—indeed, he made it a large part of his argument about the nature of the Community as a whole—that there had been a deal between France and Germany over the agricultural policy in which it was clear to both the parties that they had a right of veto, but that no one else did. My noble friend expressed this as a fact of life which we would simply have to accept and said that it was no good railing against it. I am not sure whether I necessarily accept that, but that was the view of my noble friend Lord Cockfield. And it is a matter of historical fact that the Germans exercised a veto on an identical matter, except for the sign, of prices in the agriculture committee, where we had not been allowed to have a veto. So the veto exists; it has been used. To say that it is not there seems to fly in the face of experience.
I should like to put another point to my noble friend before she replies. As we know, Her Majesty's Government, rightly or wrongly, regard the proposal, which is part essentially of the social chapter but is being forced on us under the guise of a health and safety ruling, to bring about a limit of a 48 hour week in the United Kingdom with some distaste, to put it mildly. For a long time it has been denounced at extraordinary length by Ministers of the Crown. The matter came to a head recently in the Council. A veto was not cast. Now Ministers say that they will take this matter to the European Court of Justice. Well, maybe so. That is very interesting. But what if the verdict goes against us? Will we then veto the proposition? Why did we not veto it anyway if it is Her Majesty's Government's view that it is such a bad thing?
I understand from my own sources, which are not very far removed from government, that the Minister was advised that she should not attempt to cast a veto because it would be declared by the others that the veto was not valid, and that is why no veto was cast. I should like the assurance of my noble friend that no such advice was given and that the reason that the veto was not cast was not any doubt at all about its 816 validity. I should like her to assure me that it is the belief of Her Majesty's Government and their advisers that had a veto been cast, it would have a valid veto.
§ Lord Stoddart of Swindon
The noble Lord, Lord Boyd-Carpenter, is rightly concerned that amendments should seek to improve and that they should be in order. I sincerely hope that when we come to debate Amendments Nos. 399 to 404 in the name of the noble Lord, Lord Pearson of Rannoch, which will put the Bill itself in better shape, the noble Lord will listen to the arguments. Indeed, I am confident that after listening to the arguments he will feel sure that the Bill will be improved if those amendments are cirri I hope that he will feel able to support them.
I rise only very briefly on the point just raised by the noble Lord, Lord Tebbit. I want to ensure that the confusion is cleared up. On the 48 hour week, he asked whether we could not first of all have used the Luxembourg compromise—the veto—when this was being discussed in the Council of Ministers as now we have to go to the court for it to decide. lie then went on to ask whether, if the court decided against us, we would use the veto. If my memory serves me correctly, the noble Baroness, Lady Chalker, during the course of this debate, told me that it was not possible to use the veto after a court decision had been made. The veto, in other words, had to be used before the matter was taken to the court. If the veto is not used before the matter is taken to the court, then the veto can no longer be used. If we do not use it at the time when the decision is being taken and it goes to the European Court, and the European Court declares against us, we then have no opportunity again to use the veto. It is very important to establish just when the Luxembourg Compromise can be used and when it should be used. I hope that the noble Baroness will be able to clear up that matter.
§ 3.45 p.m.
§ Lord Clinton-Davis
Perhaps I may start by saying that I thought, with respect to the noble Lord, Lord Boyd-Carpenter, whose interventions from time to time we all find very interesting, that he took a very lofty view about parliamentary draftsmanship today so far as concerns Back- Benchers and even, if I may say so, Front-Benchers, because I have often been guilty of putting down an amendment that may not have been nonsense but may have been ineffective. We simply do not have the availability of parliamentary draftsmen or even perhaps his great expertise in this field, though I wonder whether some of the amendments that he has put down from time to time have not been somewhat ineffective.
I do not take the view that the noble Lord has taken about the amendment proposed by the noble Earl, Lord Onslow, which is designed, as I understand it, to provide Parliament with greater powers to scrutinise the situation. I should have thought that it is always desirable, if it is possible, for matters coming before the Council to be debated in Parliament before that takes place. But it is not always possible. That is th.e difficulty. So many issues come before the various councils and, notwithstanding the valiant efforts of 817 the Scrutiny Committees in both Houses, we do not have the ability to debate all these issues at the most appropriate time. Of course there are occasions where Ministers wish to have the endorsement of their point of view by Parliament, particularly when it is likely that it will achieve all-party support—that is often quite useful —before a Council meeting takes place. So I do not blame the noble Earl, Lord Onslow. I do not often agree with him but I think that he is perfectly entitled to do what he has done on this occasion.
The anxieties that have arisen with regard to the Luxembourg compromise arise because of the extension of qualified majority voting under the Maastricht Treaty. The background to this has been very well rehearsed, particularly by my noble friend Lord Bruce of Donington and also by the Select Committee on European Union back on 23rd July 1985. In its document, the Select Committee set out the background to the matter and the nature of the dispute that had arisen between the French and the other member states back in 1966.
I have to say in passing that the policy of the empty chair which preceded this, which was embarked upon by the French Government under President de Gaulle at that time, was one designed not to facilitate the progress of the Community. But what it lead to was the Luxembourg compromise, which as I understand it has been used on 13 occasions between 1973 and 1985. I shall want to come back to that in a moment but I think that it has lost its former authority as a European Community convention, and I do not particularly want to see it revisited. Does the noble Lord wish to intervene?
§ Lord Harmar-Nicholls
I take it that the noble Lord is perfectly happy that we do not have a veto even when we believe that the important interests of this country are involved?
§ Lord Clinton-Davis
I would like to develop the argument in my own way. In the course of doing so I hope to be able to deal with the point which the noble Lord raised, but I wish to do that in a logical way. I agree with the noble Lord, Lord Campbell of Alloway, that the Luxembourg compromise has never had any legal status; it is simply an agreement to disagree and no more and no less than that. What it comes to in practice is that it applies to the extent that the member states are inclined to let it apply, but only of course when qualified majority voting itself is to be applied.
So what is a very important interest? Clearly, there is no possibility of any objective criterion which is capable of independent assessment. It has to be subjective and the view of the government seeking to invoke it in a particular way. In practice, while member states do occasionally throw into the discussions which take place in the Council the possibility of their erecting the Luxembourg compromise, the reality is that when member states—at least as regards the kinds of issues that I was dealing with although, of course, I cannot deal with the entirety of the Council decisions—discussed their problems, for example, in the transport and 818 environmental councils and even in the general affairs council dealing with nuclear safety post-Chernobyl, people did in fact say that they might invoke the Luxembourg compromise from time to time.
It is always important that the argument should be made by the Government seeking to invoke it. It is no use simply saying "We think that this is an issue which is very important to us and therefore we might invoke the Luxembourg compromise". If the Government concerned put forward the argument in a coherent and positive way to indicate that they are genuinely going to be disadvantaged in some vital way, then it is wrong to assume that other member states will always fail to respect that.
As I say, in a number of very important matters that arose in the councils which I attended on the issues to which I have referred in general, the Luxembourg compromise was never invoked, not even over the issue of Gibraltar in dealing with the question of aviation which was back in 1986. The two countries which were deeply concerned about the argument; namely, Spain and Britain, patiently negotiated a compromise, neither invoking the Luxembourg compromise. But one might have thought, listening to some of the contributions today, that we simply and glibly say that a vital national interest is involved and therefore we are going to invoke the compromise.
The truth of the matter is that there is a feeling of reciprocity about these issues. Member states do feel: "There but for the grace of God go I". They do not wish to see the doctrine invoked by others for that reason. Therefore, I do not believe that it is necessary to carry out any amendment to the treaty. That would clothe the doctrine with an authority which it has never previously had and, in my view, never should have. It is essentially a doctrine of last resort and it should not be used in any abusive manner lest it reduces the work of both the Commission and the Council to a deadly halt. I have a faint suspicion that that is in fact what lies in the minds of some of those who propose the use of the Luxembourg compromise in the way which some of these amendments support.
One has to take account of the elaborate procedures for scrutinising and changing Community proposals before they even reach the Council table where they are further very closely scrutinised. I believe that qualified majority voting represents an incentive to arrive at quicker decision-making in a whole variety of ways that will enhance the Community, but that member states, despite that, will still strive to maximise consensus, if not total unanimity.
For example, there have been areas in transport policy where it has been perfectly possible, before the Single European Act, to utilise qualified majority voting. It was not done because member states, perhaps wrongly, decided that it was better to try to ensure that one achieved unanimity in these fields. But I do not believe that it helped to develop transport policy. I remember the noble Lord, Lord Tebbit, arguing very strongly the other day about shipping cabotage. In that regard the Greek Government have consistently said that vital national interests are 819 involved. They also prayed in aid something very similar, which I need not go into now, in order to frustrate the policies of the Community in that respect. The noble Lord might not say that the Greeks have a vital national interest and that the issue of cabotage was so important to the Community that that the Greeks had to say should have been avoided. I do not know the noble Lord's views about that, but I know that he feels very strongly about cabotage.
As regards road haulage, as the Minister will know herself because she was involved with transport, for years the Germans sought to say that the liberalisation of road haulage was absolutely incompatible with their interests and they used every and any argument to that end. There was no question of using the Luxembourg compromise. Eventually (it was only the other day) a decision was taken to make the liberalisation of road haulage become a reality. So I do not believe that it is very sensible to seek to give a kind of statutory basis. That would be a great mistake. I do not believe that revisiting the Luxembourg compromise in the way which has been suggested here represents a sensible position.
What the Government have done in relation to the procedures at Maastricht—and we do not agree with it—is to use a procedure whereby an individual member state might he excluded from the Community's policy without jeopardising collective action. I shall not go into the question of whether the Government were right or wrong about that, because it is obviously a matter on which we have very different views. But it is not an illegitimate way to proceed and it is not the Luxembourg compromise.
In trying to put the Luxembourg compromise into the form that these amendments seek, what worries me is that effectively it will stall progress altogether. It will make it virtually impossible to arrive at a sensible consensus based either on qualified majority voting or more particularly on something which is broader than that. I believe that it would be fundamentally wrong to adopt these amendments. From this side of the Committee I counsel that noble Lords should reject them.
§ 4 p.m.
§ Baroness Chalker of Wallasey
The lead amend ment in this group of amendments; namely, Amendment No. 393, moved by the noble Lord, Lord Bruce of Donington, and the amendments tabled to it by my noble friend Lord Onslow, would, as the noble Lord, Lord Clinton-Davis, has said, require the Government to obtain the approval of Parliament before agreeing resolutions and directives in the Council of Ministers. There are many explanatory memoranda put to the Committees of both Houses. I know because I sign many of them before they are put out. But the requirements in these amendments, while placed by the noble Lord, Lord Bruce of Donington, and my noble friend Lord Onslow, to get us to explain the situation, would not be practical in any sense.
Let me try to explain what I accept is a complicated situation and respond to the points which were made by the noble Lord, Lord Bruce of Donington. The real question is: what is the Luxembourg compromise? It 820 is a political agreement. It is based on the Luxembourg accords of the 28th and 29th January 1966. These brought to an end six months of difficulties stemming from France's withdrawal from participation in the Council of Ministers. The text represents an agreement to resume business as usual while disagreeing about what should be done when a very important national interest is at stake.
Since then, member states have spelled out their positions more clearly, notably in the declarations accompanying the 1983 Stuttgart solemn declaration, which was signed by my noble friend Lady Thatcher. The essential features of the Luxembourg compromise are as follows: it applies only when the Council is taking a formal decision by majority vote on the basis of a Commission proposal. When a member state claims that a very important national interest is at stake, all member states are committed to try, within a reasonable time, to reach a general, acceptable solution. Some member states, notably Britain, France, Denmark, Ireland and Greece —although, as Members of the Committee have said, the Germans invoked it in 1985—consider that in those circumstances discussions must continue until unanimous agreement is reached. Some member states, notably France and Ireland, consider that the essential national interest must be directly related to the subject under discussion.
I could put the exact wording of the Luxembourg compromise into Hansard, and I am prepared to do so if your Lordships wish, but it was stated in the evidence given by the Foreign and Commonwealth Office to the Select Committee on Foreign Affairs of another place back in 1986, and it has been written into our records on many occasions. I shall certainly see that it is placed in the Library.
Some Members of the Committee obviously wish to see the Luxembourg compromise entrenched in a legally binding treaty article. I am not accusing the noble Lord, Lord Bruce of Donington, of that: he has never asked for that, to my knowledge. Perhaps I may answer why I do not believe that that would be right. The key point is that Her Majesty's Government will continue to defend our national interests within the Community through whatever means at our disposal. As I have said, the Luxembourg compromise is a political agreement, not a legally binding text, as my noble friend Lord Campbell of Alloway referred to it. That is why it is unsuited to entrenchment in law. The continuing validity of the political agreement was not called into question during the political union negotiations, and nothing in the Maastricht Treaty conflicts with its continuing existence or suggests that the compromise cannot be invoked.
Perhaps I should tell the Committee that in the French National Assembly debate on 12th May last year on the revision of their constitution necessary to give effect to the Maastricht Treaty, the then French Foreign Minister said:No Government exists which would accept that., in a Community debate, a vital interest should he sacrificed in any way".That was endorsed by M. Bérégovoy. the then Prime Minister, in the National Assembly in May 1992, when he said: 821France has never given up and will not give up the right in a serious crisis to protect its fundamental interests. When the application of the majority rule would challenge interests judged vital for one of the states, the mutual commitment remains to continue to seek agreement among themselves".Those are sentiments with which we totally agree and, as one noble Lord has said, M. Balladur, the present French Prime Minister, has said that the Luxembourg compromise is in force.
It is clear that, although it is not legally binding, others will support us in maintaining the Luxembourg compromise. The French, Danish and Irish (who all made declarations for the minutes to accompany the solemn declaration on European union signed by the heads of government at the Stuttgart European Council on 19th May 1983) reaffirmed the existence of the compromise—that is, that voting should be postponed where essential or where very important national interests were at stake. Even countries which previously took the view that the presidency must have recourse to voting where the treaty so provides have invoked the compromise. That is the German example, which has been quoted in our debate.
Five other member states, including the United Kingdom, refused to take part in a vote. That was how the decision was blocked. We did not do it because we agreed with the substance of the German case, but because all member states concerned attached considerable importance to the Luxembourg compromise. I believe that they will continue to do so. It is a political reality. The Luxembourg compromise was last used in 1988 by the Greeks on an agricultural price proposal. Together with Portugal, Denmark, Ireland and France, we supported Greece in the use of the Luxembourg compromise. So, although I cannot give a more recent example to the noble Lord, Lord Bruce of Donington, I can tell him that we supported the use of the Luxembourg compromise in 1988.
Perhaps I may turn now to what I call the 1982 saga, which was raised by the noble Lord, Lord Bruce of Donington, and my noble friend Lord Cockfield in an earlier debate. It is true that the UK representatives at the Agricultural Council on 18th May 1982 asked for a vote on the annual price fixing to be deferred. That was because we had been unable to secure satisfactory decisions on the overall Community budget. But we were not supported on that occasion by enough votes of member states to be able to defer that decision. Only Denmark and Greece supported us —and that did not give us our 23 votes. That was because other states took the view that the compromise could be invoked only in support of national interests directly related to the subject under discussion.
I believe the Luxembourg compromise still to be an effective weapon. There have been many occasions when decisions which could have been taken by a majority vote were deferred because one or more member states were opposed to them. On another occasion back in July 1978, we invoked the Luxembourg compromise in the Fisheries Council because Commission proposals for the conclusion of fisheries agreements with Sweden and the Faroes affected our fundamental national interests. No vote 822 was held. Because we retain the right to invoke the Luxembourg compromise even if there is no direct relationship, we shall not hesitate to do so if we believe that it is the right thing to do.
That brings me to the question that was asked of me by my noble friend Lord Tebbit. He asked why the veto was not exercised against the working time directive. We voted on something very different from the original directive that was brought before the Council. My right honourable friend the then Secretary of State for Employment, Mrs. Shephard, gained enormous support for improving the directive. It surprised even those of us who were involved. What existed at the end was nothing like the directive which had come to the Council at the beginning. In other words, my right honourable friend had gone on talking, had continued working to improve the directive, and had used the very technique which is so important if we are to improve what comes forward.
We voted, as we did in the end, because the proposal had been much improved; but we gave notice, at the same time, that we objected to the proposal which went through because of the legal base upon which it had been introduced. Members of the Committee will remember that it was introduced under Article 118a which is the health and safety provision which, of course, has qualified majority voting. We announced our intention to challenge that decision because of the legal base. That is the challenge which will go to the Court of Justice. But it was not our judgment that the amended proposal put at risk a vital national interest, much as we continued to dislike it, because the proposal that my right honourable friend went on working for was something that was a good deal more acceptable than that which we started out to achieve.
The noble Lord, Lord Stoddart, asked a question about "invoking the veto", as he called it—the Luxembourg compromise—after a matter has been to the Court of Justice. I do not think that one could have a political veto after a matter had been referred to the Court of Justice. I took the advice of my noble and learned friend the Lord Advocate. He tells me that, indeed, it would not be possible: if you are going to use the Luxembourg compromise you must do so at the decision-taking stage before it is referred to the Court of Justice. I hope that that adequately answers the noble Lord's point.
I should like to continue with my response because I am sure that we want to make progress in our debates. In answer to questions posed on the issue, I have said that one cannot make—as I think the noble Lord, Lord Bruce of Donington, has sought previously—a clear distinction between the occasions when the Luxembourg compromise was formally invoked and where it was tacitly applied. In fact, I even answered a question to that effect way back in 1986 from the Foreign Affairs Council.
I believe that it is in the nature of things that the mere existence and the threat of the use of the Luxembourg compromise is often sufficient to secure changes in the proposed legislation to the satisfaction of the state concerned. I am also fully aware of the anxieties which, if there were to be no Luxembourg 823 compromise, would arise in the mind of the noble Lord, Lord Bruce of Donington. He has pursued the issue relentlessly, and rightly so. However, I must tell him that it is a political decision and not a legal one; and, indeed, I have explained exactly why that is so.
I must tell the noble Lord that I believe Amendment No. 393 to be unnecessary. We have existing scrutiny procedures for regulations and directives which, on the whole, work well. However, in his support, I shall be improving scrutiny wherever that is really necessary, as the noble Lord already knows. I should like to take the opportunity to pay tribute to the chairmanship of the noble Lord, Lord Boston of Faversham, and thank him for the important and valuable role that he has played in our EC scrutiny over recent times.
The Government value the scrutiny given both by this Chamber and another place. However, it would not be appropriate or practical for each and every regulation or directive of the Community to be fully debated and approved by both Houses of Parliament. Certainly, I believe that it would be inappropriate to enshrine what is essentially a matter of scrutiny in legislation.
We want to have a working system. Our scrutiny system works; indeed, it is much admired by other countries. I believe that we should leave it alone and get on with the job. I believe that the noble Lord, Lord Clinton-Davis, wishes to intervene. I give way.
§ 4.15 p.m.
§ Lord Clinton-Davis
Before the Minister sits down, perhaps I can take her back to the point she made about the 48-hour week proposal. I was not surprised to hear that the Government had opposed it and had taken the point that the legal base chosen was incorrect. We do not take that view, but that is not the point. However, to say that it was a candidate for the use of the Luxembourg compromise —which is what I thought the Minister suggested—would be utterly absurd. There is in fact a perfectly legitimate political point of view about the matter and one which we do not share. Would it not be useful in terms of invoking this vital national interest that it should, perhaps, be done where there is very clearly overriding support in all parties for a situation which the Government are seeking to invoke as a vital national interest?
§ Baroness Chalker of Wallasey
First, I shall check the Hansard record most carefully. I certainly did not mean to say—my noble friend Lord Ullswater confirms that I did not; and I am grateful to him —that we considered using the Luxembourg compromise. I was describing a situation where others—not the Government—had suggested that it might be used. In that case, we did not even come to a vote when we finished discussing the working hours' directive. It was not necessary to do so when we had so greatly amended the whole situation. In any event, we intended to submit, via the European Court of Justice, the resultant directive (which was a much slimmer volume than the original) to the European Court of Justice because of the base that had been used.
824 However, as regards the suggestion of the noble Lord, Lord Clinton-Davis, that the Luxembourg compromise might only be used where all parties are in agreement, I do not think that that is a practical proposition. A government is elected to govern and a government could not share the blame with the Opposition if they got it wrong because the Opposition would not want to take it. As I said, I do not think that that is a practical proposition.
In conclusion, and before the noble Lord, Lord Bruce of Donington, responds, I must say that I believe that the whole atmosphere about the kind of changes that we have been discussing has changed. It was quite clear from the Copenhagen European Council which noted the Commission's commitment to wider consultation before submitting new proposals that there would be more chance for debate and discussion. I hope that the Green Paper system from the Community will provide a good opportunity for national Parliaments, including this Chamber, to influence regulations and directives at an early stage but without Amendment No. 393 which I urge Members of the Committee to reject.
§ Baroness Chalker of Wallasey
At the end of quoting both M. Dumas and Prime Minister Beregovoy of France, I said that we agreed with what they said. That is exactly it.
§ Lord Tebbit
With reference to what my noble friend said concerning the 48-hour-week decision, we have seen a new phenomenon. I have often referred to the slices being taken off the salami one by one until the sausage has disappeared. It seems to me that this is a case where the slices are being produced one by one until we have the whole darned sausage. That is why it should have been dealt with at. a very early stage. However, my noble friend would ease my worries in that connection if she could assure me that, in the view of Her Majesty's Government, it is a vital British interest that the social chapter should not be applied to the United Kingdom.
§ Baroness Chalker of Wallasey
We have already found a way to deal with that without the Luxembourg compromise. That is why we have the social protocol. I really do not think that there is anything more to be said about it.
§ The Earl of Onslow
Perhaps I may try to sum up what I thought my noble friend said. It is that the Luxembourg compromise is a convenient bargaining tool and it has no legal force whatever. The other people may want to gang up against us and say that it does not work and there is nothing that we can do about it. That is a rock which I see but which the noble Lord, Lord Richard, does not. Maybe he is Nelsonian and I am not. That appeared to me to sum up my noble friend's remarks.
Lord Bruce of Donington
I wish to express my appreciation for the constructive and honest way with which the noble Baroness, Lady Chalker, dealt with my questions. I am sure that with her officials and everyone concerned she has made every conceivable endeavour to answer fully the questions that I ventured to raise.
What troubles me a little is the attitude of the noble Lord, Lord Clinton-Davis, who spoke on behalf of my party. He indicated that as far as he was concerned —and presumably that encompasses the party as a whole—he envisaged that the role, if any, of the Luxembourg compromise should be progressively reduced. He did not regard the Luxembourg compromise as being anything to which he paid particular regard. I am accustomed to dealing with commissioners and my noble friend must know that imputing to me on the basis of what I have said any desire to incorporate the Luxembourg compromise into the Maastricht Treaty is a lot of nonsense. I did not seek, and I do not seek, to incorporate the Luxembourg compromise into the Maastricht Treaty, and my noble friend knows that very well. It is a typical way of diverting the argument from the principles which I laid before the Committee.
In the interests of brevity I deliberately omitted a quotation from an authoritative source. It was a point upon which the noble Lord, Lord Campbell of Alloway, pegged himself. He pointed out somewhat gleefully my argument that the French declaration constitutes the basis of the Luxembourg compromise, and he asked, "What about the rest?". My noble friend Lord Clinton-Davis endeavoured to supply the rest from a Select Committee Report of 1985. I shall go furth.er and more authoritatively and refer to a statement made by the Government in 1986 which supersedes anything given in the Select Committee Report of 1985 to which he referred. I shall complete the statement, which was:By definition, that compromise, which is sometimes called a veto, is only applicable to decisions to he taken by a qualified majority and, although the French view was in a minority in 1966"—a point upon which the noble Lord, Lord Campbell of Alloway, seized—it now  represents the clear view of at least five member states—France, the United Kingdom. Ireland, Denmark and Greece. Moreover, as noble Lords will know, in 1985 a sixth government, the German government, invoked the Luxembourg Compromise".—[Official Report, 17/10/86; col. 1084.]I believe that in a way that disposes of some of the contributions which were thoughtfully made today by Members in various parts of the Committee.
I return to the statement made by the noble Baroness, Lady Chalker, which I must study very carefully indeed. It may well be that we must return to the matter on Report because one thing troubles me and I hope that the Minister will be able to solve it. I am troubled because the version of the noble Lord, Lord Cockfield, who was a Member of the Cabinet in 1982, gives a totally different account. That must be resolved and I hope that it will be resolved a long time before the Report stage. In the meantime, I renew my grateful thanks to the noble Baroness.
§ Lord Harmar-Nicholls
The noble Lord put a final question to his Front Bench, and I hope that I may put a question to my Front Bench. My noble friend's explanation is that she is perfectly happy to allow the situation to stand as it is. She said that it works well, it allows negotiation, we are able to improve things and she is happy about that. Is my noble friend still happy about the changing of horses? Does she not believe that resisting our request under one heading —the 48 hours—and then suddenly switching to health and safety is a manoeuvre which must somehow be dealt with? Would it not be a good move if we could, if not in the words of these amendments, find a way of preventing someone starting a race on one horse, finishing it on another horse and claiming to be the winner?
§ Baroness Chalker of Wallasey
It started under Article 118a and it has always been under Article 118a because it was raised as the working time directive under the health and safety provisions. Therefore, it has not changed horses, to take my noble friend's analogy. There is no doubt in my mind that if there is what to all of us appears to be the wrong use of a legal base the raison d'étre Court of Justice is to resolve these matters, and that is exactly where we have sent them.
§ The Earl of Onslow
I believe that we have discussed the matter as much as we can and I beg leave to withdraw the amendment.
§ Amendments Nos. 393A and 393B, as amendments to Amendment No. 393, by leave, withdrawn.
§ Amendment No. 393. by leave, withdrawn.
§ [Amendment No. 394 had been withdrawn from the Marshalled List.]
§ [Amendment No. 395 not moved.]
§ Clause 2 agreed to.
Lord Moran moved Amendment No. 396:
After Clause 2, insert the following new clause:
Report on duties of sovereign as citizen of the Union
(". In implementing Article 8 of Title II of the Treaty establishing the European Union, Her Majesty's Government shall lay before Parliament for approval before 31st December 1993 and annually thereafter a report on those duties, if any, to which the Sovereign is to be subject as a citizen of the Union.").
§ The noble Lord said: I wish to introduce Amendment No. 396 standing in my name and that of my noble friend Lord Tonypandy. He is extremely sorry that he cannot be here this afternoon for the good reason that he is in Cardiff with Her Royal Highness the Princess of Wales. He has left me to deal with the theoretical aspects of the Sovereign's duties while he helps with the practical aspects of the Royal Family's activities. I think that he has much the better part. I cannot hope to match the eloquence and passion that he brings to our debates but I shall do my best to explain our amendment.
§ In dealing with the Queen's possible future duties under the treaty, we have sought to bring forward as helpful, reasonable and uncontroversial an amendment as we can devise. We were helped in its drafting 827 by the Public Bill Office, to the members of which I express our thanks. I hope that what we are now proposing will commend itself to the Committee and that the Government will accept it.
The amendment does not deal with the complicated question of the Royal Prerogative nor with our own relationship with the Sovereign as Her Majesty's subjects. In a debate in this Chamber on 17th February, the noble Baroness, Lady Chalker, explained the Queen's position. On Second Reading of the Bill the noble and learned Lord the Lord Chancellor said that:
there is a distinction between the concepts of citizenship and of allegiance. We owe allegiance to Her Majesty the Queen. We will continue to do so when we are citizens of the Union. Citizenship of the Union differs from national citizenship, particularly in a monarchy like that of the United Kingdom. Here the citizen is also a subject. Maastricht will not make us subject to anyone other than Her Majesty and we shall not owe any allegiance to the European Union… the treaty in no way alters the Monarch's constitutional position in the United Kingdom."—[Official Report, 8/6/93; cols. 714–5.]
§ That is clear and reassuring. It is, however, a measure of the concern in this Chamber and outside that the noble and learned Lord felt it necessary to say that. But at any rate our own relationship with the Sovereign will be unaltered. That is deeply satisfactory. In our generation we are extraordinarily fortunate in having as our head of state a Queen whose dignity, dedication and hard work are beyond praise.
§ Lord Moran
Our amendment is concerned with the Sovereign's own position under the treaty in relation to the citizenship provisions which we debated in this Committee on 22nd June.
It became clear then that citizenship of the European Union was to apply without exception to every man, woman and child who was a national of a Community country, and that it was to be compulsory. Now I was greatly surprised that when the citizenship proposals were included in the treaty, no arrangements were made to exclude Community heads of state, whether they were hereditary monarchs or elected presidents. I am sure that if you and I had been drafting these provisions the first thought which would have occurred to us was what arrangements should be made for heads of state. But no provision seems to have been made for them. They are all, apparently, including the Queen, to become plain citizens of the Union like the rest of us. The noble and learned Lord will correct me if I am wrong about this. But if I am right, I find this state of affairs hard to understand. I should be grateful if the noble and learned Lord would tell us what consideration was given to the question, what line Her Majesty's Government took on it in the negotiations, and why it was that exceptions were not made for the Queen and other heads of state in the Community.
It seems to me rather surprising that M. Mitterrand, who is France's principal representative on the European Council and is also himself a head of state, and one who seems to take the privileges of that position fairly seriously, should have agreed to this. It is my understanding that the treaty was originally 828 confined to its core economic provisions—the three stages of European monetary union, the single currency, which will be the watershed leading us to a unitary European state, and the European Central Bank, which is to run our economies. But apparently Chancellor Kohl and M. Mitterrand (who else, since it is they, as we have been told by the noble Lord, Lord Cockfield, and others, who call the shots in the Community?) decided that some political provisions must be included as well. So perhaps citizenship was put in rather hurriedly with little thought given to the position of heads of state. I do not know. I hope the noble and learned Lord can enlighten us and explain why heads of state of Community countries are being required to become citizens of the Union.
It does, after all, seem to me extremely odd that the Queen should be required to be a citizen of anything; let alone a body outside her own realms. I am sure that many Members of the Committee will also consider it odd and far from satisfactory. I myself find it extraordinary that the Government should have agreed to it. However, the fact is that they have so agreed and that under the treaty the Queen is, as I understand it, compelled to become a citizen of the Union. Under the treaty, like the rest of us, she will have rights and duties.
The question of rights is, I imagine, scarcely one that will trouble the Sovereign. The rights specified in the treaty do not seem to me likely to affect Her Majesty. I cannot well imagine Her Majesty petitioning, appealing to an ombudsman, seeking consular protection overseas or standing for the Westminster City Council and I do not believe that she has any problems about free movement in Europe. Nevertheless, the noble and learned Lord the Lord Chancellor told us on Second Reading that Her Majesty would be entitled to exercise the rights conferred upon citizens of the Union. But, he said,it would be a matter for Her Majesty's choice, on the advice of her Ministers, whether in any particular situation she did so."—[0ffieial Report, 8/6/93; col. 715.]So much for rights; the question of duties is less clear. Article 8 of the treaty refers to duties. It says:Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby".I repeat:and shall be subject to the duties imposed thereby".Therefore, clearly there are to be duties. Ministers have repeatedly asserted that there are at present no specific duties under the treaty, and the noble and learned Lord the Lord Chancellor told us on Second Reading that the principal duty, which, he said, we have all had since 1972, is,to obey the laws of the Community so far as they have direct effect in national law and are binding on individuals."—[Col. 715.]But clearly new duties may be imposed in the future. The citizenship provisions were included in a rather surprising part of the treaty—clearly in ordler that they can be interpreted by the European Court of Justice. So those interpretations may result in new duties. The treaty could also, I think, be amended in future by the Council in a way which could impose specific duties on all citizens of the Union, including the Sovereign. Or duties could perhaps arise by the 829 creeping, imperceptible process of gradual integration pushed on by the Commission, of which we have heard in this Committee stage. Duties could be of many kinds, from trivial obligations up to paying taxes direct to Brussels or being conscripted into a European army. At all events, duties are mentioned in the treaty, so obviously duties there will be.
Hence our amendment. It does not tamper with the treaty. It simply means that the Government would have to tell Parliament if at any stage duties were to be imposed on the Sovereign and that Parliament should approve any such duties. The amendment would simply be a safeguard, an insurance against anything being done affecting the Sovereign without our knowledge and consent. I cannot think that anyone could object to that. It would also have the merit of discouraging any British government in the future from agreeing to any inappropriate duties which could be imposed on the Sovereign. No doubt this year, and perhaps for some years to come, the government could make a nil return in their report. That would be a reassurance to us all and would, I am sure, be well received in all parts of both Houses. The safeguard is for the future.
I hope, therefore, that this amendment will receive general support, and that the Committee will agree to it. It is an essentially commonsense amendment, which I unhesitatingly commend to the Committee. I beg to move.
§ 4.30 p.m.
§ The Earl of Onslow
I draw to the attention of my noble friends on the Front Bench this thought. Can they imagine either Disraeli or Churchill allowing those duties to be imposed upon the Sovereign? The contrast between Disraeli, who made his Sovereign Empress of India, and the present Prime Minister, who made his Sovereign a citizen of the Union, needs no underlining.
§ Lord Campbell of Alloway
I suggest respectfully to the noble Lord, Lord Moran, that it would be wholly inappropriate to include this proposed new clause in the Bill because his argument is based upon an anxiety which is a total misconception; namely, that the Queen is a citizen and, indeed, is subject to any of those duties because assuredly she is not.
In speaking to Amendment No. 2, when Article 8 was considered in the context of citizenship of the Union, I said that the Sovereign was not involved in Article 8 and that I should advert to that again when speaking to this amendment. On a totally objective analysis of Article 8, citizenship of the Union, as dependent upon nationality, confers a dual status—in the case of a monarchy such as ours, a subject of a monarch and a citizen of the Union. Under Article 2 citizens of the Union have rights under the Maastricht Treaty, which amends the Treaty of Rome, the ECSC and EURATOM, which also imposed duties upon citizens.
But our Sovereign is not a citizen; nor indeed are the subjects in other sovereign states, members of the EC, who are citizens of those states. The rights of the 830 citizens of the Union are, as has been said, set out in Article 8e. Clearly, at face value—we need not go through them again —none could conceivably apply to the monarch. One cannot say that none of them conceivably apply to the monarch, but no court anywhere in the world could so construe them as applying to the monarch. If no rights are conferred upon the Sovereign by Article 8, assuredly no specific duties are imposed. The drafting concept is unitary and reciprocal as regards rights and obligations. No duties are apparent, or are referred to in the article, and such duties as there may be for the citizens arise under the Treaty of Rome as amended and the Single European Act.
As far as I am aware, it has never been suggested that the Treaty of Rome or the Single European Act, signed by plenipotentiaries on behalf of six sovereigns and six presidents, impose any duties whatever upon the sovereigns, upon the presidents or upon the plenipotentiaries. The magnitude of the misconception all but beggars belief. So what is the basis of the proposal to insert this new clause which, if carried, would be sent to another place further to delay a Bill that is already too long delayed? It cannot be said, as the noble Lord, Lord Moran, said, that this is a measure of safeguard because there is nothing to safeguard. No rights and no duties are conferred upon the Sovereign.
On reading the Second Reading speeches of the noble Lord, Lord Moran, and the noble Viscount, Lord Tonypandy, the only fear—it has not been stated —that is evident is perhaps sired by misconception out of a fear of federalism. If that be so, assuredly Article 8 cannot, on any construction, serve as a launch pad for federalism. I listened with attention to the noble Lord and to my noble friend Lord Onslow. I believe that the whole purpose of this amendment is simply not understood. It is to be hoped that it will not be acceptable to the Committee.
§ Baroness Strange
The use of the word "citizen" as applied to Her Majesty the Queen revives unpleasant echoes of the French Revolution when the Queen of France was referred to as Citoyenne Capet. We all know where that led. I think we would all feel happier and safer if our own Queen remained sovereign and subject to none.
§ 4.45 p.m.
§ Lord Chalfont
I seek clarification of what appears to be, on the face of it, an important question as regards the citizenship of the Union of the Sovereign. In the first place, there must be a difference between our own Sovereign and the heads of state of other governments and other nations, especially heads of state who are elected. We cannot put President Mitterrand and Chancellor Kohl in the same bracket as our own Sovereign because presumably, except in exceptional circumstances, our own Sovereign is head of state while she is alive whereas President Mitterrand and Chancellor Kohl can once again become ordinary citizens of their own countries, and 831 presumably of the Union, when they leave office. Leaving that aside, I cannot believe that this question was not considered in the framing of the treaty.
It has been suggested by the noble Lord, Lord Moran, that perhaps the matter was overlooked. I know a little about the way in which the Community operates. I would imagine that the matter was certainly considered. I should have thought that it would be considered at some length. There must have been a reason why heads of state were not excluded from the conferring of rights and the imposition of duties in this case. I hope that when the noble and learned Lord replies to the debate he will assure us that the matter was considered and that there was a good reason for not excluding heads of state, and what that reason was.
I have two further questions on which I would 'welcome enlightenment. First, if the noble Lord's amendment were accepted on a Division, would it have any effect? It seems to me that as it is at present framed it would allow us to be informed about any new duties that were imposed upon the Sovereign but that does not seem to me to be a form of consultation. Unless I have misunderstood the amendment, it seems to me the only difference it would make is that if any duties were imposed upon the Sovereign and if they were altered, we would only be entitled to be told about them after the event.
Secondly, in the context of the intervention of the noble Lord, Lord Campbell of Alloway, is it true—this is an important issue and it would certainly affect my judgment if the Committee were to divide upon this amendment—that under the current treaty, no rights would accrue to the Sovereign as a citizen of the Union? Is it equally true that no duties would therefore be imposed upon her? If the Government can assure us that that is the case, my attitude to the amendment would be much changed. But if that is not true and if, under the treaty, rights are accrued to the Sovereign and duties are imposed upon her, I believe that this is an important amendment.
§ Lord Boyd-Carpenter
I hope that the noble and learned Lord will be able to deal with a question which has just been raised by the noble Lord on the Cross Benches. I would like to know whether he regards the treaty as making our Sovereign a citizen of the Union at all. I would be interested to have his answer to that question. If that is so, does it carry with it the implication that at any rate some of the duties of a citizen of the Union could be imposed upon her? If that is the case, the matter seems to be a little more serious than perhaps some of us had realised.
§ Lord Richard
I hope I may make two observations. It seems to me there are two issues raised by this amendment. The first is public concern about the position of the Sovereign in relation to the Maastricht Treaty and the second is the device—I do not use that term in a pejorative sense—which the noble Lord, Lord Moran, is proposing to try to deal with the parliamentary situation.
It is fair to say that there is some public anxiety about the position of the Sovereign in relation to the Maastricht Treaty. I hope that when the noble and 832 learned Lord sums up the debate he can be clear and unequivocal as to the position that the Monarch would occupy in the event of the Maastricht Treaty being passed. Some of the questions 'which have been raised, notably by the noble Lord, Lord Chalfont, are pertinent and deserve an answer. I hope that the noble and learned Lord can give one.
I turn now to my second point concerning the terms of the amendment. Almost irrespective of the answer which the noble and learned Lord gives to the first point I would have difficulty in accepting the proposals which are contained in the amendment. I do not believe that the issue needs the excessive parliamentary scrutiny which is set out in the amendment. Therefore, while I share some of the anxieties which have been expressed by the noble Lord, Lord Moran, and look forward to the answer which the noble and learned Lord the Lord Chancellor will give the Committee, if there is a Division on the amendment, I could not advise my noble friends to vote in favour of the amendment.
§ Lord Moran
Perhaps I may respond briefly to the points made by the noble Lord, Lord Campbell of Alloway. It seemed to me that he was suggesting that under the treaty Her Majesty the Queen would not, as a citizen, have any rights or duties. If that is so—and in due course the noble and learned Lord will tell us what the position is—then my anxieties would fall away. If no duties are to be imposed on Her Majesty there is no need for the Government to report them to Parliament.
However, as I understood it, the noble Lord argued that the Queen would have no rights. Has he read the speech by the noble and learned Lord the Lord Chancellor at Second Reading in which the noble and learned Lord said:Some of your Lordships have asked whether Her Majesty would herself be entitled to exercise the right; conferred upon citizens of the Union. The answer is yes".—[0fricial Report. 8/6/93; col. 715.]That seems to be an important statement. It is that which has in part led to the anxiety which I feel.
I agree very much with the points made by my noble friend Lord Chalfont. Obviously everything turns on whether Her Majesty is to be, as we are, a citizen of the Union and, if so, whether she will have rights and, specifically, whether she will have duties which could include in the future duties which are not at present specified. That is the point which I hope the noble and learned Lord will be able to clarify.
§ Lord Tebbit
There are two points which I should like to raise with my noble and learned friend. If the word "duties" had not been in the treaty—and we are assured that there are none so that word need not have been there—the matter would be very simple. If at some subsequent stage, after the next in.tergovernmental conference, for example, there was a proposal to impose duties of some kind then quite clearly during those negotiations it would be entirely reasonable and proper for those negotiating on behalf of Her Majesty's Government to make the point at that stage that the Monarch should be exempted from those duties.
833 However, that is not the case. Unfortunately there is a reference to duties, although we are told that there are none. Therefore, should it be decided at some future stage that the question of duties for the citizens of the Union should be introduced a change in the text would be required to except the Monarch from the position in which she is placed by this treaty. In this treaty she is like every other citizen of the Union, with rights and duties, although there are no duties. Therefore, we would have to make an exception. We would have to create two classes of personality: ordinary citizens of the Union, and our Monarch—or perhaps heads of state generally.
It would be much more difficult to do that in the future than if we had done it ab initio. I wonder whether my noble and learned friend takes a similar view to me. Perhaps he can assure me that in his view. should duties ever be proposed, particularised or specified, a new class of person would be introduced into the treaty; namely, a head of state or, most particularly, our Monarch.
Secondly, I say to my noble and learned friend that anxieties have been expressed, which may be slightly far-fetched but I should like his reassurance, that a duty is placed upon the Monarch in this treaty since she is not merely a citizen. She is a legal, constitutional personality—or whatever is the appropriate designation. She is part of Government. She is more than Mr. Smith or Mrs. Brown, and more than one of Her Majesty's Ministers. Under those circumstances, as a constitutional personality, is she bound to uphold the objectives of the treaty?
That is an important question, for if she is so bound to uphold the objectives of the treaty it would be possible that at some time her duties in that regard could come into conflict with her position as the Queen in Parliament. We are always told that if something was absolutely unacceptable the United Kingdom could renounce the Treaty of Rome. That is surely theoretically possible. However, until the renunciation had come into effect on her signature, Her Majesty might be bound to uphold the Treaty of Rome. That would be a difficult position at that juncture.
Therefore, I should like to be assured that Her Majesty, in the personality of the Monarch—the Queen in Parliament—is under no obligation whatever as a citizen to uphold the objectives of the treaty. If she were there would undoubtedly be a potential constitutional conflict between her two duties.
§ Lord Charteris of Amisfield
It is surely the case that the Queen always acts on the advice of her Ministers.
§ 5 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
The amendment and this debate touch on matters of considerable importance. They are matters with which all of us will be concerned. I shall endeavour to state as carefully as I can what I believe the position to be in the light of our law up to this moment.
834 First, I want to remind the Committee, just in case that might be necessary, that Article 8 of the Maastricht Treaty, in the position in which it appears, is a new article to be inserted in the Treaty of Rome as amended. Therefore, "this Treaty", referred to in the second sentence of Article 8, is the Treaty of Rome as amended by the Single European Act and the Maastricht Treaty. That therefore requires us to consider the existing situation. We should forget Maastricht altogether for the moment.
In 1972 the Parliament of the United Kingdom, the Queen in Parliament, passed an Act to give effect as the law of this country to the Treaty of Rome and laws properly made thereunder. That treaty contained power under which duties could be imposed on individual citizens. To take some examples which arise, I refer to the tachograph and the proper net which one can use for fishing. By virtue of that Act of Parliament the law of the United Kingdom introduced those duties, just as Parliament might directly introduce other duties in accordance with the ordinary procedures which we use for making enactments.
As regards the Community, the law is effective in this country only as part of the law of this country by virtue of that Act of Parliament. Therefore Her Majesty the Queen has the same relationship to that law as to any other law enacted by Parliament; and, of course, her consent was given in respect of the Act of Parliament of 1972.
One has to remember that the special position of Her Majesty the Queen in relation to the law of this country arises from the fact that the courts of this country are her courts; and that the general rule at common law in this country is that the Queen, as head of state, the Monarch, is not subject either to criminal or civil proceedings in the United Kingdom. There are very special provisions for certain aspects of her private right. But that is the general rule.
Accordingly any provision of European law as incorporated into the law of this country will be subject to exactly the same arrangements. There is no question of the European law being enforced in this country except through the national courts, and in accordance with the system that we have which regulates the position of our Monarch as head of state. That means that when the position of the Monarch is considered there is no machinery whatever by which any duty under the European law could be enforced against her. It is precisely the same position as applies in respect of the ordinary law laid down by Parliament in this country.
The part of the Treaty of Maastricht which we are discussing was certainly subjected to detailed consideration and, so far as I know, no suggestion was made that it was either necessary or appropriate to exempt heads of state from the operation of Article 8. I believe that the reason that I have just given sufficiently explains that. There is no way in which the article overrules or affects the arrangements between the head of state—in this country our respected and much loved Monarch—and the courts of the country.
As regards other courts—the Monarch may go abroad and find herself in France or Germany—she is exempt from any process under the law of France or 835 Germany by the doctrine of sovereign immunity. Therefore there is no question of legal duties being created upon the Monarch, enforceable in the courts of this country. Therefore I submit to the Committee that the position of Her Majesty the Queen is entirely secured by the arrangements that have been made.
Perhaps I may turn to one or two other matters. I stated in my Second Reading speech—I believe it to be correct—that Her Majesty the Queen is a national of the United Kingdom; and obviously that is the most important matter. Attached to that, the consequence would be that she will be a citizen of the union. There is no suggestion that she will become, as the noble Lord, Lord Moran, said, a plain citizen of the union. Her prerogatives and ranks as the Monarch of the United Kingdom are in no way diminished. All that is said is that being a national of a member state, she shall be a citizen of the union.
§ The Earl of Onslow
Will my noble and learned friend allow me to intervene? Is she not also a citizen of Canada, Australia, and other countries of which she is a Monarch? Could she not get out of such citizenship by claiming to be a citizen of Canada? Does that not have some effect?
§ The Lord Chancellor
I believe that it is a little dangerous for me to speak on behalf of Her Majesty the Queen. However. I believe that one of the last things she would wish to do would be in any way to abandon her right as a national of the United Kingdom. We are all proud and glad of that fact. She is a national of the United Kingdom.
I wish to come to the question of duties which my noble friend Lord Tebbit and others have raised. No one will have heard me say that there are no duties on citizens of the European Union. What I say is that the duties are imposed by exactly the mechanism of the 1972 Act and the Single European Act. There are no new duties imposed by virtue of this Bill except under the same types of mechanism. The Committee will notice—it is of considerable importance—that Article 8e provides for the possibility of provisions being brought forward,to strengthen or to add to the rights laid down in this Part".That is to say, the rights attached to citizenship of the union by that part. There is no machinery in that article for adding to the duties. In other words, the duties that are in question are the duties which may be laid down under the machinery of the Treaty of Rome as amended, which has been, of course, exemplified over the years since 1972.
Accordingly, my submission to the Committee is that the unique position of Her Majesty the Queen arises from her relationship to our national law. The mechanism—it is the only mechanism—by which the European law becomes part of our national law is by virtue of the authority of Acts of Parliament which make it so. Therefore there is no need for any additional machinery.
In particular I suggest to the Committee that the proposed amendment has a number of defects. The noble Lord, Lord Chalfont, pointed out that it is a matter of record only rather than consultation. I submit to the Committee that to adopt any such 836 provision would give a quite erroneous impression of the true position so far as concerns the Monarch. In this connection, her true position is founded on the relationship between the Monarch and her courts. It is only through her courts that any of the duties imposed upon other nationals of the United K.ingdom could be enforced within the United Kingdom itself.
I very much appreciate the anxieties which have been expressed and I have sought to deal with the matter as carefully and fully as I can. I am sure that all Members of the Committee would wish to join the noble Lord, Lord Moran, in saying that we, as a country, have been served in a most. remarkable way by our beloved Sovereign over many years. Her Majesty's Government would wish to do absolutely nothing of any kind in any way to diminish her position. On the contrary, in accordance with the oath that we have all taken on coming into the House, we would wish to maintain her position in the fullest possible sense.
The consent of Her Majesty the Queen is given ultimately to Acts of Parliament that pass both Houses. When her rights and interests may be affected, she is also in the habit of laying them before Parliament for the purposes of a Bill going through the House. She did so in relation to the Act of 1972. and she will do so, I understand, in relation to this Bill. She did that in the House of Commons and I understand that she will formally do so in this House. The principal reason for that being required in this instance is that her prerogative to ratify treaties is modified by the necessity to have an Act of Parliament before any question of proceeding to Stage 3 of the Economic and Monetary Union could arise. That is a qualification on the prerogative to ratify treaties which lies with Her Majesty.
In the light of that explanation, I hope that the Committee will feel that, far from enhancing the position of Her Majesty, to pass the amendment might be to cast quite an unnecessary doubt upon it.
§ Lord Jay
Before the noble and learned Lord sits down, to a non-lawyer. one point is not altogether clear. I thought that he said that because the courts are Her Majesty's courts, no duty can be laid upon her by those courts. Therefore, she was, as it were, exempt, he said, from the European Communities Act 1972–to use a non-legal term. The noble and learned Lord also said, however, that she becomes a citizen of the European Union as a result of this treaty. If she becomes that as a result of this legislation, how is it that the legislation has that force which apparently the 1972 Act does not? I am afraid that is not clear to a non-lawyer.
§ 5.15 p.m.
§ The Lord Chancellor
I sought to explain this, and obviously it is important that I. should make it as clear as I can. When Parliament passes an Act, it does so in. the knowledge of the relationship between Her Majesty and her courts. The general rule to which I referred is that Her Majesty, as a private person in right of the Crown, cannot be brought before her own courts. Therefore, in passing any kind of legislation 837 which appears to impose duties, there is no infringement of Her Majesty's position in that respect. I say that that is true of the Act of 1972; it is true of the Act of Parliament that made the necessary changes in our law to enable Her Majesty to ratify the Single European Act; and the same would be true if this treaty were to be ratified.
However, that does not prevent rights being assigned to Her Majesty if Parliament wishes to assign rights to her. I have said that by being a national of the United Kingdom, Her Majesty will obtain thereby the rights that obtain as a result of the treaty, in connection with the matters referred to in the treaty conferring rights. I pointed out that if those rights ever came into question at all, they would be exercised only on behalf of or on the advice of Her Majesty's Ministers. I agree with the noble Lord, Lord Moran, that as regards practicalities—with which we ought to deal—it is highly improbable that any specific rights mentioned in Article 8 would ever be in question for Her Majesty. Thus, from the practical point of view, even on the rights side in respect of Article 8, there is no particular addition to Her Majesty's rights thereby conferred. There are formal additions, but nothing of great importance.
As regards duties, the position is different because duties depend on the enforcement arrangements. Because of the relationship between Her Majesty and her courts, there is no question of that.
§ Lord Monson
Before the noble and learned Lord sits down for the second time, would he agree that the existing post-1972 duties, arising from the European legislation of which he spoke, are already incorporated into English law and Scots law? It is those laws which we obey and which are the means for ensuring our obedience to those duties. In other words, it is through English and Scots law. Why, then, is it necessary to incorporate the word "duties" into the treaty at all? It is surely totally superfluous.
§ The Lord Chancellor
The situation is that under the treaty it was wished to make reference to and incorporate provisions about citizenship. As my noble friend Lord Renfrew of Kaimsthorn said on Second Reading, the aspiration involves the idea of duties as well as rights. Therefore, it is fair, in presenting the matter, to notice in the provisions that there are duties. But they are the duties which arise from the sources already identified and by the same mechanisms. Those are: the Treaty of Rome, the treaty amending it (the Single European Act), and, if Maastricht is ratified, the provisions of the Maastricht Treaty under which duties can be created. But those are all of the same kind and arise in the same kind of constitutional relationship. The point I wish to emphasise is that Article 8 does not create any new mechanisms for additional duties on anyone.
§ Lord Harmar-Nicholls
My noble and learned friend has answered clearly and without question that the Royal Prerogative is not involved. He made that perfectly clear, and that is safe. But since he reiterated the statement he made in his Second Reading speech 838 that under Maastricht Her Majesty becomes, like everyone else, a person, there is a risk. It may be one that we cannot see at the moment, and it is difficult to envisage; but there must be a risk that she, as a person, quite apart from her Royal Prerogative, could be involved in it. Is it possible to insert something at some stage which will protect her as a person, in addition to her Royal Prerogative powers as a Monarch?
§ The Lord Chancellor
The question is whether any addition would be wise or useful. As I have sought to explain, the position depends entirely on the relationship between Her Majesty and the laws of this country. That is what we are talking about—the laws of this country, as they are affected if the Bill is passed.
§ Lord Tebbit
I wish to thank my noble and learned friend for having explained the matter with a lucidity and clarity with which it has not been explained before. I would that we had had his explanation perhaps a week or two ago, it would have been extraordinarily helpful.
Perhaps I may ask my noble and learned friend to advise me whether I am right in interpreting what he said. The duties to which the Treaty of Maastricht refers are those duties which are already imposed in the Treaty of Rome, not extra duties which, for some reason, in this treaty become involved in the Treaty of Rome by (if I may coin a phrase) the "tachograph" route—that is to say, the perfectly normal process of European legislation becoming English law through the medium of the Treaty of Accession.
If I am right in following my noble and learned friend down that route, any new duties which might be thought of at some time in the future—let us say, something quite extraordinary such as European national service—would have to be enacted in the form of a further amendment to the Treaty of Rome. They would become effective in the United Kingdom through exactly the same route as the obligations to obey the law of the tachograph, and would therefore not affect Her Majesty, since, as he has said, she cannot be required to submit to her own courts.
§ The Lord Chancellor
What the noble Lord said is absolutely correct. The situation is that by virtue of the Treaty of Rome first of all, power was given to the Community institutions in accordance with the procedures laid down to make legislation which by virtue of the 1972 Act becomes effective as part of the law of the United Kingdom. Those powers have been enlarged under the Single European Act, and they have been altered, or will be altered again, under the provisions of this treaty and this Bill if it becomes an Act. But these are all similar, as the noble Lord said —and as a distinguished former Member of the Government, he has had considerable experience.
All the duties which can be laid down under that procedure must be referable to powers which are granted under these treaties to the Community. Therefore the protection of the citizens of this country against what I might call, for the sake of argument, foreign-imposed laws, is that the powers which have been transferred to the Community institutions are defined and laid down. Nothing could be laid upon the 839 citizens of this country by virtue of any of these treaties which is not covered by powers which are laid down in the treaties. That is the basic protection which I believe every Member of this Chamber would think to be right. The authority of Parliament is required, and that authority can be given, as it has been given, by giving authority to others to make the rules under particular provisions; but no further authority than that.
§ Lord Pearson of Rannoch
I am most grateful to my noble and learned friend for the explanations that he has given. But can he perhaps help me with one further final point which concerns the legal precedence which these articles take? I have been looking again at Article 189 of the Treaty of Rome, which I believe is the article which first gave the power to import British legislation from the European Economic Community. I think my noble and learned friend has mentioned that article before.
In Article 189—and I gather it is still that article under which we propose to import legislation and therefore to acquire the duties of that legislation under British law —no mention is made of citizenship. Furthermore, Article 189 is quite a long way down the batting order in the Treaty of Rome, whereas Article 8 is being imported as a new clause right up at the top, and for the first time establishes citizenship of the Union. My question to my noble and learned friend is: can he assure the Committee that the duties which according to Article 8 clearly flow from the new rights conferred under the new citizenship of the Union can in no way be equal to the duties that we have acquired in the past under the Treaty of Rome?
§ The Lord Chancellor
As I said earlier, Article 8 is incorporated into the Treaty of Rome as amended, if Maastricht is ratified. The complete body of treaties dealing with the European Community—I leave aside for the moment Euratom and the Coal and Steel Community—are the Treaty of Rome, the Single European Act and the Treaty of Maastricht. These have to be construed, so far as they amend one another, as a single document. The fact that an article is -Article 189" does not give it any less force than if it were Article 188. You have to take account of the whole. The logical structure of the document may be of some importance, but so far as giving effect to the document is concerned, the rules adopted by the European Court and every other rational tribunal is that you must look at the whole document in reaching a conclusion.
Article 189 is of course the authority under which the Community can operate. But the basic powers which are fundamental to that operation come, in many cases, much earlier in the treaty. For example, the common agricultural policy provisions are much earlier in the treaty. So there is no particular significance in that. But I want to take perhaps a very slight exception to what my noble friend said towards the end of his question to me. I think he suggested that the duties were in some way related to the new rights. I do not think that is, strictly speaking, true. I think the position is that the duties which are in question here are duties which would be imposed under the 840 Treaty of Rome as amended in the way I said, and the rights will be all the rights given by these treaties, including of course the rights referred to specifically in Article 8. But there are other rights which arise or may arise under the treaties as well as these. Article 8 provides certain additional rights. One must take account both of all the duties and all the rights in this connection.
§ Lord Pearson of Rannoch
I am most grateful to my noble and learned friend. I was merely going on what Article 8 says, which is that for the first time,Citizenship of the Union is hereby established".I believe that that is so for the first time. The article continues:Every person holding the nationality of a Member State shall be a citizen of the Union"—and I believe that is so for the first time. The second paragraph states:Citizens of the Union shall enjoy the rights conferred by this Treaty"—and there is not even a comma: it goes straight on to say,and shall be subject to the duties imposed thereby".So I read those duties as flowing from the new rights of citizenship of the Union. I am very happy to have had my noble and learned friend's reply, but I should have to study it rather carefully in Hansard to understand how much progress I have made.
§ The Lord Chancellor
I invite my noble friend to do just that, but I think the important situation is, as he said: citizenship for the first time; rights and duties not for the first time.
§ Lord Moran
First of all, I should like to thank all noble Lords who have taken part in this debate, which has been of considerable importance. In particular, I should like to thank the noble and learned Lord for the very clear and helpful explanation that he has given. As a very plain citizen indeed. I feel abashed to be confronting the supreme legal authority in this country on a matter that is, to a very large extent, legal in content and I am hardly competent to do so.
The noble and learned Lord, however, made it clear that Her Majesty is to be a citizen of the Union. He has already spoken about her rights. What he said about her duties has been partially reassuring. However, it seems to me that he made it quite clear that if in future duties were to be imposed on any heads of state, or certainly on the Queen, they could not be enforced against Her Majesty in the courts, either in her courts in this country or in other parts of the Community. But I cannot imagine that we would ever reach the point of seeking to enforce—that was the word that I understand the noble and learned Lord to have used—such duties against Her Majesty. It seems to me almost inconceivable.
I know that we are discussing in this treaty provisions for the Court of Justice to fine national governments; but I cannot imagine that the question of enforcement would ever arise. In what the noble and learned Lord said, he made clear that the Queen could have duties imposed on her under the treaty but that they could not be enforced against her. It seems to me as a plain citizen that it would have been much better if the Community governments, when they 841 negotiated this treaty, had done the obvious and sensible thing and exempted heads of state from citizenship. That would have been far simpler. It would have been understood by everybody and would have avoided all the problems that we have run into. I regret that so little thought seems to have been given to the problem and that we simply relied on the impossibility of enforcement, which seems to me very unsatisfactory.
When we drafted this amendment, we did not know what the noble and learned Lord has just told us. I do not think that any of us in this Chamber knew what he has since very helpfully made clear. In a way that underlines the point that I was trying to make.
This amendment, which suggests that the Government should report to Parliament on the position about duties, was designed to ensure that the Government should keep Parliament informed of the position. None of us would have known what we have learnt from the noble and learned Lord this afternoon if this amendment had not been moved. It is only because we have been able to raise the matter in this Chamber that the noble and learned Lord came and explained the position exactly. I should like that to be the position in the future.
To put it the other way round, to object to our amendment is to say that the Government should not report to Parliament on any duties that might he imposed on the Sovereign in the future, that Parliament should not be required to approve such duties whatever they might be, and that such duties might be imposed on the Sovereign without any reference to Parliament. I believe that few Members of the Committee would want to take that line.
It was suggested to me—I have no idea whether or not it is true—that, all things being equal, the Government might not have had any trouble accepting our amendment as it stands on its own but that they are concerned, above all, with avoiding any amendment of the Bill which would require consideration in the other place. We have now discussed this amendment for just over an hour. If it were to be agreed, I cannot imagine that consideration of it in the other place would greatly delay ratification of the treaty. Frankly, if there is to be a balance between the convenience of the Government's business managers on the one side and safeguarding the Sovereign's position on the other, there can surely be only one choice.
I should like to consider very carefully what the noble and learned Lord said. In many respects this amendment is out of date because it was drafted before he gave that explanation. I am concerned about the general principle that anything affecting the Sovereign's position in the future should be put to Parliament and Parliament should be told. The Government should have an obligation to inform Parliament and to seek Parliament's consent. That seems to me fundamental and of the greatest importance. I shall look carefully at what the noble and learned Lord has said this afternoon and if I feel that it is not fully satisfactory, I shall come back to it 842 at Report stage. At this stage, I do not propose to divide the Committee. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.30 p.m.
§ [Amendment No. 396A not moved.]
§ Lord Tebbit
I feel that we are going just a little too fast. Amendment No. 396A was discussed but I understand that it is within this Chamber's rules of order if I were to say of that amendment that it provides a right to renounce citizenship of the Union parallel to those—
§ The Deputy Chairman of Committees (Lord Alport)
I must interrupt my noble friend. I was informed by the noble Lord who tabled the amendment, Lord Stoddart of Swindon, that it was not to be moved. Therefore I did not call it.
§ [Amendment No. 397 not moved.]
§ Clause 3 [Annual report by Bank of England]:
§ [Amendment No. 398 not moved.]
Lord Pearson of Rannoch moved Amendment No. 399:
Page 2, line 2, leave out ("and") and insert ("including").
§ The noble Lord said: I very much hope that these two groups of amendments to which I put my name (Amendments Nos. 399 to 401 and 402 to 404) may come as something of a relief to the Committee as a whole. They are not designed, as so many previous amendments have been designed, to remedy what many Members see as defects in the Treaty on European Union itself. They are an honest attempt to remedy obvious drafting deficiencies in the Bill.
§ The deficiencies occur in Clauses 3 and 5, both of which were drafted with unusual speed when the Bill was going through the other place, without the usual full and proper consideration by the legal draftsmen. Indeed, I understand that the Government in the other place had reservations about accepting the amendments which imported Clauses 3 and 5 into the Bill. Whether that was because they found the substance of the clauses or their drafting unsatisfactory, I am unable to say. In either case, the amendments are aimed purely at improving the drafting. I hasten to add that the wording of the amendments is not my own. It has been given to me by very senior legal draftsmen who must be regarded as being as expert as any in the land.
Amendments Nos. 399 to 401 will improve the drafting of Clause 3 of the Bill. The Committee will note that Clause 3 makes reference to Article 108 of the Treaty on European Union. As Article 108 is mercifully short, it might be helpful to the Committee if I quote it in full. Article 108 reads:
Each member state shall ensure, at the latest at the date of the establishment of the European system of central banks, that its national legislation including the statutes of its national central hank is compatible with this Treaty and the Statute of the ESCB".
§ Clause 3 purports to set out the procedure by which this country shall meet the terms of Article 108; I submit that it fails to do so. Amendment No. 399 would substitute the word "including" for the word "and" in the second line. It is an amendment about 843 which those who advise me feel quite strongly. I can see that it does not look absolutely essential to a layman such as myself. Indeed, I find the placing together of the word "including" with the word "ensuring" somewhat cumbersome. Nevertheless, it would more closely meet the intentions of Article 108 of the treaty and I feel sure that the Government could come up with an improved amendment if they were minded to accept its spirit.
§ While the Government are considering that possibility, it may be helpful for them to examine the question of whether or not the word "annual" is necessary, which has the effect of requiring the Governor of the Bank of England to report annually. That seems to be rather overdoing it when set against Article 108 of the treaty. It may be that the statutes of the ESCB will require annual reporting. If so, I must apologise to your Lordships for not being sufficiently familiar with them.
§ Be that as it may, Amendments Nos. 400 and 401 are progressively more necessary. Amendment No. 400 would meet the opinion of those who have advised me that it is not adequate simply to provide for an order. I am advised that it should be at least a statutory instrument, thus ensuring that the order will be printed and made public. I do not know whether my noble and learned friend will be able to agree with that advice and I look forward to his reply.
§ I would not have thought that there could be room for disagreement when we come to Amendment No. 401. The main trouble with Clause 3 of the Bill as drafted is that it does not say what happens if the annual report of the Governor of the Bank of England is not approved by both Houses of Parliament. We are simply left hanging in the air if either House decides not to approve it. Nor is it clear what purpose is served by making the report subject to the approval of Parliament, which is what the clause as drafted appears to do.
§ On the other hand, I am advised that the contents of the order are matters with which Parliament should be concerned since it will presumably make provision for the kind of things which should go into the report. The effect of Amendment No. 401 would therefore be to make not the report, but the order, subject to an affirmative resolution.
The same kind of difficulties afflict Clause 5 of the Bill. That clause is intended to meet our commitments under Article 103(3) of the Union treaty, the relevant part of which is also mercifully brief and reads as follows:
For the purpose of this multilateral surveillance, Member States shall forward information to the Commission about important measures taken by them in the field of their economic policy and such other information as they deem necessary".
§ The trouble with Clause 5 is that it requires Her Majesty's Government to submit to Parliament, for its approval, a report which would be an assessment of the medium term economic and budgetary position in relation to public investment expenditure and to the social, economic and environmental goals set out in Article 2 of the treaty. But as with Clause 3 of the Bill, Clause 5 as drafted is silent as to what happens if Parliament withholds its approval. Once again the 844 clause leaves us hanging in the air. Therefore, Amendment No. 402 would leave out the words, "for its approval".
§ Baroness Trumpington
Order. Perhaps I can ask my noble friend why he is speaking to Amendment No. 402, if he is doing so, because it is in a different group.
§ Lord Pearson of Rannoch
I apologise. I thought that I had made it clear that I was speaking to both groups of amendments. If that is not in order I am happy to speak only to the first. They come together as similar drafting points in Clauses 3 and 5. I am in your Lordships' hands If it is in order. I shall continue.
Amendment No. 403 deals with the problem that Article 103(3) of the treaty requires member states to forward their relevant information only to the Commission. It does not, as Clause 5 suggests, require them to forward their information to the Council and the Commission. The Committee may feel that that is not all that significant and, being a layman, I am unable to judge how much importance should be attached to it. But Clause 5 of the Bill is clearly out of tune with Article 103(3) of the treaty. I should have thought that it is the kind of defect which the Committee would want to correct.
Be that as it may, even a layman such as myself can see that Amendment No. 404 is needed. It clarifies what happens if either House of Parliament does not approve the required report. Amendment No. 404 would prevent the submission being made to the Commission in those circumstances, which I trust my noble and learned friend would agree would be the appropriate course of events. I hope that my noble and learned friend can agree that the amendments are helpful and I commend them to the Committee. I beg to move.
§ 5.45 p.m.
§ Lord Rodger of Earlsferry
The two groups of amendments are unusual since, as my noble friend Lord Pearson said, rather than being addressed to wider issues, they are addressed explicitly to the wording of the clauses as they appear in the Bill. Notwithstanding what my noble friend said, I urge the Committee not to endorse his Motion.
The first of the amendments would delete the word "and" in line 2 and insert the word "including". My noble friend said that the result would perhaps be. rather unsatisfactory English. I simply say that whether or not that is so, the amendment is not necessary. It is quite plain that as the clause stands it covers the implementing of Article 108 as a whole, and that includes not only the ensuring of compatibility of the statutes of the national central hank, but also the other things already contained in Article 108. One could debate what particular language might have been chosen and I am perhaps not the best person to defend the language of the clause, which was drafted by people other than myself. Nonetheless, it satisfactorily, if not perfectly, makes sense and would not give rise to difficulties in practice.
845 We then have two amendments which are really put together by my noble friend—Amendments Nos. 400 and 401. He first makes the point about the order being made by statutory instrument. There is no need for the order to be made by statutory instrument. The Committee will be familiar with many kinds of orders which are made, which do not need to be made by statutory instrument but which are perfectly satisfactory from the point of view of Parliament.
The difficult point is that if one looks at the effect of Amendments Nos. 400 and 401 taken as a whole, one sees that whereas Parliament would have a chance to comment upon and approve the order which had to be made, nothing would be said regarding approval of the report. That would be giving up the substance of the matter for.the form because surely Parliament would wish to have the opportunity to examine the content of the report rather than the content of the order which would give rise to the report of the Governor of the Bank of England. For that reason, contrary to what my noble friend said, this would be a wholly unsatisfactory amendment which would destroy the purpose of the clause inserted in another place, the purpose of the clause being to allow Parliament to scrutinise, to examine and to pass comment on the terms of the governor's report.
Of course the Committee will realise that Article 108 is only to be implemented at the third stage, so it presupposes that the United Kingdom had got as far as the third stage, at which point the Bank of England would be independent. So it would be for the Governor of the Bank of England, and not for us, to determine what his attitude would be were Parliament not to approve his report when it was submitted, because he would be acting as an independent governor at that stage. For all those reasons, contrary to what my noble friend suggests, I would ask the Committee not to endorse the amendment.
§ Lord Renton
Before my noble and learned friend leaves Clause 3, would he agree that the last part of the clause, which reads,shall be subject to approval by a Resolution of each House of Parliament",is exactly the same as saying that there shall be an affirmative resolution before approval can be given? In other words, in substance the amendment of my noble friend Lord Pearson of Rannoch would not add anything on that point.
§ Lord Rodger of Earlsferry
It would not add anything but it would change the effect. As I understand the amendment, it would mean that it would be the order which would be subject to approval whereas, as the clause is drafted at present, it is the annual report which is subject to approval. It is a matter of considerable importance which of those it is because the House, and Parliament as a whole, would wish an opportunity to approve or not the governor's report rather than simply the order which would give rise to the report. So although I accept what my noble friend says about the affirmative resolution point, the resolution would, on the other hand, be attached to a different matter—to the order 846 —whereas, in the version which we have before us, unamended, the matter relates to the report itself. I believe that that is what was intended by those who put down the amendment, which is now Clause 3, in another place. I believe that that makes sense.
In Clause 5 we are dealing with information to be submitted to the Commission or Council, under Article 103 or Article 104c of the treaty. It provides that before that information is submitted the Government shall make a report to Parliament. The information which is thereafter submitted is to be based on the report once it has been approved. Again, this clause was not originally in the Bill but was introduced by the Opposition in another place and was accepted by the Government.
As my noble friend Lord Pearson has said, Article 103 deals with monitoring economic performance in member states—what is known in the jargon of the treaty as "multilateral surveillance". Article 104c deals with member states avoiding excessive budget deficits. That is known as the excessive deficits procedure. I should stress that both the procedures require information to be submitted.
I shall deal with the articles separately. First, with regard to Article 103, I should explain that even at present what is in substance this kind of surveillance takes place under an existing Council decision on convergence which was adopted unanimously by member states in 1990. So what Article 103 does is to build on existing practice. The information which the United Kingdom supplies under the present arrangements is based on material either drawn from the financial statement and budget report or which can be derived from it. And so it is considered in that context by Parliament. Therefore, there is no objection in principle to the idea that Parliament should consider the report which forms the basis of information to be submitted.
The position is, again, that the drafting is perhaps not as clear as it might be. But it was made absolutely clear by the Opposition spokesman in another place that the intention of the clause was that any report under the clause would need to receive the approval of Parliament before any submission was made to the Council or to the Commission. I should stress to the Committee that the Government agree with this intention. Therefore, in answer to my noble friend, I am quite happy to give the commitment that any report under Clause 5 will be submitted by the Government to Parliament for approval and that information will be submitted to the Commission or the Council only when approval has been secured. I think that that deals with the point which my noble friend raised on that matter.
My noble friend then suggested that it was proper to delete the reference to the Council. He suggested that there was no reference to the Council which was appropriate in this clause. It is right to say that one has to look at the drafting of the clause quite carefully. I do not carry a torch for it but my noble friend will see that it states:Before submitting the information required in implementing Article 103(3) of the Treaty",847 certain things will be done. That is how it opens. But if one looks at the end of the clause one sees that the report,shall form the basis of any submission to the Council and Commission in pursuit of their responsibilities under Articles 103 and 104c".Therefore, whereas the clause opens with Article 103.3, it closes not only with Article 103 but with Article 104c.
One has to look at the whole clause. When one looks at it in that way one sees, as my noble friend said, that in Article 103.3, for the purpose of the surveillance, member states shall forward information o the Commission. One has therefore the basis of the report to the Commission which is referred to in Clause 5. But if one then turns to Article 104c, which is a third stage clause, one finds that in Article 104c.9 there is provision, if a member state is failing to put into practice the recommendations which the Council is making under the third stage, that the Council may give notice to that member state to take appropriate measures to make the reduction which the Council deems to be necessary. Then it says:In such a case, the Council may request the Member State concerned to submit reports in accordance with a specific timetable in order to examine the adjustments effort of that Member State".Under Article 104c, which is where the Council comes into it, there is provision for reports to be made to the Council.
For the sake of completeness, I should add that under Article 104c.14 one sees that further provision relating to the implementation of the procedure is set out in the protocol. If one then turns to the protocol and looks at Article 3—it is a bit of a paper chase—one finds that there is an obligation that member states shall report their planned and actual deficits and Ihe levels of their debt, promptly and regularly to the Commission. I therefore take it that the intention of the draftsman of this particular clause was to sweep up references to the Commission and Council under these various provisions in Articles 103 and 104c.
In those circumstances, it would follow that the drafting of Clause 5, even if not perhaps as elegant as it might he, is not inappropriate in the way suggested by my noble friend. Therefore, I ask him to withdraw this amendment as well as those referring to Clause 3.
§ 6 p.m.
§ Lord Pearson of Rannoch
I am most grateful to my noble and learned friend. At this stage of the evening, I would not dream of attempting to press the matter further with him or with my noble friend Lord Renton. I was glad to hear him say that perhaps the wording of Clause 5 is not as perfect as it might be. I believe that I, together with those who advise me, had better have a closer look at what my noble and learned friend has said to see whether we might want to bring back something more accurate at the next stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 400 and 401 not moved.]
§ Clause 3 agreed to.
§ Clause 4 agreed to.848
§ Clause 5 [Convergence criteria: assessment of deficits]:
§ [Amendments Nos. 402 to 404 not moved.]
§ Clause 5 agreed to.
§ [Amendment No. 405 not moved.]
§ Clause 6 [Committee of the Regions]:
§ [Amendment No. 406 not moved.]
Lord Sefton of Garston moved Amendment No. 406A:
Page 2, line 24, at end insert:
("( ) Her Majesty's Government shall advise any person proposed under subsection (1) above that if appointed he should in exercising his duties as a member of the committee give due consideration to the need for the decentralisation of Community administration as a step towards the "harmonious and balanced development of economic activities" as stated in Article 2 of Title II.").
§ The noble Lord said: The amendment which I now move brings back the memory of going to Brussels and meeting the noble Lord, Lord Thomson, at the same time as meeting the noble Baroness, Lady Chalker. Even at that early stage of the Common Market the one thing that struck me was that we were beginning to build in Brussels and Luxembourg another golden triangle of congestion and hopeless living accommodation. I have already referred to the amendment which I am now moving when we were debating another group of amendments. At this stage it merely seeks to find out the Government's attitude to what I consider to be a very fundamental subject.
§ If the Common Market is to succeed, if we are to go on building the unity of Europe, then it is important that everyone should feet involved in the Community. It is not good enough to treat the peripheral areas as though they contained only people who needed the dole. Ultimately, that kind of attitude leads to a dependency culture which I also mentioned the other day. In the end, resentment is built up in that someone in a different place and who is very remote both in distance and in culture, is determining the lives of people in the peripheral regions. If one considers the South of Italy, it is no coincidence that that is where the residue of the Italian problem lies.
§ When one considers the threat to the United Kingdom, it does not come from the South of England. The threat to the United Kingdom arises when certain things happen such as those which occurred recently; for example, when Scotland sincerely believes that it is not counted as part of the United Kingdom. I shall not say any more about that. One should not insult the Members of the Committee by making a long speech, already written, about an issue of that kind. It is an extremely fundamental subject and everyone will understand it.
§ The noble Baroness, Lady Chalker, was an MP for a constituency inside one of the peripheral areas. I am not sure which one it was.
§ Lord Sefton of Garston
Some people like to refer to it as the Wirral. However, it does not make any difference. The noble Baroness, Lady Chalker, knows all about the situation. She knows of the attitude which has developed in Liverpool. There is no need for me to mention the social problems which have arisen 849 there recently; but they stem from the fact that the inhabitants believe that they are on the perimeter and that nobody really understands them or their problems.
The powers-that-be in Europe can decide to send largesse, money in large parcels, to Europe; but that does not serve the purpose. What is the Government's attitude to this matter? It is not asking much. I simply ask whether the Government will advise the people appointed to the regional council that one of the major factors on which they should concentrate is the decentralisation of the administration of the Common Market.
I say that for two reasons. First, if the concentration of activity arising from European Union activities continues to concentrate in that area of Europe, then the problem will reach such an extent that the standard of life in the area will not improve. Secondly, at the same time the rest of the European Union will be denied what is vitally necessary —that is to say, the jobs created in administration in the European Union and the identification of the people in the peripheral areas with the European Union as a whole. I beg to move.
§ Baroness Chalker of Wallasey
This seems to be turning into a Merseyside debate with the noble Lord, Lord Sefton, moving this amendment and myself, as Chalker of Wallasey, answering for the Government. I believe that we are extremely conscious of the needs of all our regions within the United Kingdom. There is absolutely no doubt that over the years in which I served in another place, the difference which we were able to achieve in the way in which the needs of the regions, peripheral or otherwise, were considered in Westminster, was very welcome indeed.
The European Parliament is not the most popular of institutions in this or in another place. But I watched as the elected members of the European Parliament began to carry out their duties in Strasbourg and how the needs and anxieties of the regions were being thoroughly looked at by Parliament. They sometimes had very funny ideas about solutions; but nevertheless, the problems were discussed as they had never been discussed before.
We also saw successive European Commissioners —of which one former member, the noble Lord, Lord Thomson of Monifieth, is here this evening—go to a great deal of trouble to ensure that the needs of the peripheral regions, whether far off places in Greece or Denmark, let alone in the United Kingdom or anywhere else, were taken into account.
In moving his amendment, I know that the noble Lord, Lord Sefton, is really asking for reassurance that that pattern will continue. He is also asking for the decentralisation of Community institutions. I believe that through modern technology we are coming closer together, anyway. Perhaps I may momentarily refer the Committee back to our debate on trans-European networks, which are mentioned in the Maastricht Treaty. Such networks are one of the ways in which the needs of the peripheral regions can be brought, and will be brought, to the notice not only of the Commission, but also of the Council of 850 Ministers which takes the decisions. Therefore, I advise the noble Lord, Lord Sefton, that his amendment is not necessary because of the other developments that are taking place.
Because I do not believe that the amendment is a practical suggestion, perhaps I may give the noble Lord one assurance. The Government have already pledged themselves to look at the needs of the regions in relation not only to national decisions, but also to the development of the Community's further regions. I say that knowing the debate that has taken place about the structural funds and about how new objective I status will be given to parts of Scotland and, indeed, to Merseyside when it is decided by the Council of Ministers. I understand that there is unanimity among the Ministers who will discuss this matter, and that it will come forward shortly.
Therefore, I hope that the noble Lord, Lord Sefton, will accept that there is a whole host of different ways in which the needs of the periphery of the Community are being brought together at its centre. The opportunities for discussion are being enhanced by the Committee of the Regions. Each country is to decide its own membership of that committee. This country's members will be elected members of local authorities. In that way, there will be a second safeguard on top of the undertakings which the Government have freely entered into to make sure that the needs of the regions are fully understood. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Ewing of Kirkford
I wonder whether the Committee will allow me to say just a few words before my noble friend Lord Sefton replies to the Minister. I appreciate that the Minister is doing her best to reassure the regions that their interests will be considered; but the Maastricht Treaty deals with the development of Europe in the years to come. I suspect that behind the amendment which has been tabled by my noble friend Lord Sefton is the view that once foreign policy becomes part of the EC's remit, there is no justification for all the machinery connected with co-ordinating foreign policy throughout Europe to be based, on the one hand, in Brussels (where there are well over 100,000 EC jobs at present) or in Luxembourg on the other hand. Anybody who has seen the complex at Luxembourg will realise that many thousands of jobs are located there. There is no reason why the machinery that is put in place to develop a common foreign policy should be based in either Luxembourg or Brussels as opposed to London, Edinburgh, Newcastle or Liverpool—a place very dear to the Minister's heart.
That is true of defence policy also. I served for five years on the Western European Union, and I am firmly of the view that, far from being strengthened, the WEU should be wound up. If there is to be a common defence policy, there is no reason why the machinery that goes with the creation of that common defence policy—the Commissioner responsible for defence and all the backup that is necessary —should be based in either Brussels or Luxembourg as opposed to London, Edinburgh, Newcastle or Liverpool.
851 All that I am asking the Minister is that as this policy develops, as it will develop, she will keep those points in mind. When referring to Brussels and Luxembourg, one could refer also to Strasbourg but to a lesser extent because only the Parliament building and some administration is based there and the Parliament building is not even owned by the EC: it is owned by the Council of Europe. All these three centres (but Strasbourg to a lesser extent) are becoming saturated with EC jobs while there is nothing in administrative terms in our peripheral regions to reflect the fact that we are members of the EC. All that I am asking the Minister is that as the market develops and new powers are given, consideration should be given to decentralising the administration into the peripheral areas.
§ 6.15 p.m.
§ Baroness Chalker of Wallasey
I understand what he noble Lord, Lord Ewing, has just said. I had hoped that what I said earlier to the noble Lord, Lord Sefton, about our intention to utilise trans-European networks would give him that assurance. It will not always be practical to move to other places parts of the institutions which have grown up in Brussels, Luxembourg and Strasbourg, but as our technology develops, there is plenty of room for doing things at a distance. Indeed, distance learning is one of the subjects that we have already discussed in relation to this Bill.
Perhaps I may make one factual correction to what the noble Lord, Lord Ewing, said. The amendment which has been moved by the noble Lord, Lord Sefton, does not cover the common foreign and security policy because that is a separate pillar under the Maastricht Treaty. It is quite separate from the Community and the Treaty of Rome. I should like that to be made clear on the record.
I hope that the noble Lord, Lord Sefton, will feel reassured. I give him my personal reassurance that I did not include Wallasey in my title without continuing to care for the region that I represented for so long.
§ Lord Sefton of Garston
Who could resist such an appeal? I would not dream of doing so, and in any case I would not dream of holding up the Committee. As I said in an earlier debate, the sooner this debate is over, the sooner we accept Europe and the sooner we start working for Europe, the better. I am heartened and pleased by what the Minister has said because there may now even be a chance of changing the Government's attitude to the decentralisation of administration. When one looks at Vauxhall Bridge and sees MI5 and MI6 crowding the place out and asks the Minister why they cannot be moved in view of modern technology in which communications between the outlying depot and the centre are much more efficient than in London, the reply comes back that the civil servants need to be in London because a Minister may have to control them or consult them. That would apply also to the Common Market. One 852 gets a vision of the Minister sitting in his plush office and 2,000 civil servants waiting at his door to greet him. It is patently absurd.
I thank the Minister for her assurance. She can rest assured that I, too, will be looking at decentralising administration which need not be in Brussels and that I am waiting.to see when it moves out to the peripheral regions. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
Lord Beloff moved Amendment No. 407:
After Clause 6, insert the following new clause:
Further Treaties amending the Treaty of Rome
(". Her Majesty's Government shall not, in the European Community, European Union, or the institutions of either of them, negotiate or give formal or informal approval to any proposal for any further Treaty amending the Community Treaties or any one of them unless there shall first have been laid before Parliament and approved by a Resolution of both Houses a Command Paper setting out—
§ The noble Lord said: Before moving this amendment, I should like to renew my apologies to my noble friend Lord Campbell of Alloway for my inability to do so yesterday evening. I do not know that his forensic skills will be much challenged by what I have to say since the issue which I am now putting forward is of a political rather than a legal nature.
§ I should like to return to something which my noble and learned friend the Lord Chancellor said at an earlier stage —namely, that any increase in the competences of the Community is a matter for treaty. It is not quite clear that he meant that literally because, for example, in the course of our debates on education it was apparent that the Community had found ways of entering—sometimes very usefully—into that sphere, although it would be difficult to find a precise, legal basis in the Treaty of Rome. We were told on that and I believe on other matters that in a way the Maastricht Treaty is a catching up in legal form of what, to some extent, already exists in practice. Nevertheless, in principle, clearly my noble and learned friend is right. Certainly, our partners in the Community believe that further treaties involving the amendment of existing ones should be envisaged.
§ As I pointed out on Second Reading, there is some contradiction in our picture of what has been happening; that is, the picture presented to us by our Government and that sometimes presented by spokesmen of other governments. The noble Baroness, Lady Chalker, was very emphatic yesterday in pointing out that the original proposals in some fields had been much improved by the constant and devoted negotiating skills of those who have represented us on the various bodies concerned.
§ Ministers are always inclined to take a rather reassuring attitude. They tell us that we should not worry too much, that the thing is going along satisfactorily and that the idea that it could suddenly be catapulted into quite a different state of affairs is illusory. Nevertheless, I am sure that Members of the Committee will have noted that, on the morrow of the 853 second Danish referendum when the Danes, for reasons which they found adequate—though some may find them illusory—agreed to ratify the Maastricht Treaty, the incoming President of the Community (the Belgian Prime Minister) announced that he thought that there would be scope this very autumn for another summit meeting which could look at an immediate revision of the treaty. That proposal cannot have found great favour as we have not heard much more about it. I take it that it is now generally agreed that there will be no such conference for revising the treaty until 1996, the year actually specified.
§ Nevertheless, it must also always be in our minds that there is nothing to prevent the presidency for the time being—and we still have this rotating presidency which is, I think, one of the weaknesses of the whole structure—if it sees fit, and if it has support, from calling a conference to revise the treaty.
§ The purpose of the amendments is to suggest that, in future, there should be a way in some form or other —I would not attach particular merit to one procedure as against another —for Parliament to ascertain in detail what is likely to be proposed in respect of amending the treaty and the negotiating mandate with which Ministers and their officials will go to such revision meetings.
§ I do not see how that can, in general terms, possibly be opposed by Her Majesty's Government as they must be well aware that the difficulties that they have had in persuading the country of the merits of the treaty—we know that they have had difficulties, or we would be having a referendum—are partly derived from the fact that people find not merely that the treaty is difficult to understand (a claim that I find exaggerated) but also that it embodies moves about which they do not feel they have been adequately consulted. Moreover, even their Members of Parliament, in some cases, do not appear to have managed to establish the relations with their constituents on the matter that one might expect.
§ No doubt there are Members of the Committee who have received a great many letters about aspects of the Maastricht Treaty. The fact that we "non-elected" persons are thought to be suitable recipients of points of view suggests that there has been some breakdown in the communication between government and people which must he the bedrock of any important change in our treaty arrangements, or in the circumstances that arise out of them.
§ It would also appear, although it may be happening more slowly, that that is becoming a feature of public opinion in several other Community countries. There is a sudden realisation that as a result of what appeared to be rather technical procedures—for example, the introduction of this or that new clause into an already much-amended Treaty of Rome—we are being asked to live in a rather different world. Indeed, the previous amendment raised one aspect of that world; namely, its impact upon the peripheral regions of the Community.
§ Therefore, it seems to me to be worth drawing the Committee's attention even at this late stage of the 854 current proceedings to the fact that we have facing us —possibly sooner, but certainly not later than 1996 —a treaty which, if some people in continental countries are to be believed, would mean a massive step towards a centralised form of government. We must face that fact. It is desirable that we should have in existence the parliamentary machinery which would enable a government to go into such negotiations with the assurance that they were carrying along with them the majority of the citizens of this country. I beg to move.
§ Lord Campbell of Alloway
I thank my noble friend at the outset for his apology. I take the view today that we are both fellow casualties of the postprandial roller-coaster. If we can leave it at that in amity, I shall be most grateful.
The matter under discussion is quite serious. The proposed amendments—namely, Amendments No. 407, 408 and 414—are grouped under the heading "Further Treaty Negotiations". I shall be very brief. However, in a sense, it cannot be denied that the amendments affect the position of the Monarch under our unwritten constitution. They inhibit the exercise of the Royal Prerogative on the advice of government to conclude treaties with other heads of state. They preclude Her Majesty's Government from concluding any further Community treaty without the prior approval of Parliament.
My noble friend referred to forensic skills. However, there is nothing skilful or forensic about it; it is just plain, straightforward stuff. These amendments were not introduced into the Bill by another place. Another place is not likely to think again, already not having thought at all—
§ Lord Campbell of Alloway
They did not have a chance to think—they just did not think. Therefore, Members of the Committee may well consider that it would be a curious assumption of power, perhaps savouring of a hint of arrogance, for this Chamber to send the amendments to another place for debate. They are amendments which conflict with the fundamental constitutional principle that Parliament may not legislate to bind a future Parliament. There is no precedent; there is no good reason. The proposal is wholly impracticable and, indeed, it could well be misunderstood as directed not only against government but also against the exercise of prerogative.
That it is a wrong precedent: the treaty-making power of the Monarch has never been ceded, qualified or called into question. That there is no good reason: the treaties concluded as between heads of state, as my noble and learned friend the Lord Chancellor was at pains to point out a few moments ago, cannot affect our own domestic law without the assent of Parliament. That it is impracticable: Members of the Committee may remember the process described by my noble friend Lord Cockfield, who is in his place. I refer to Hansard of 23rd June, col. 358, where he describes the continuing process of negotiations as between member states implemented by the treaty-making process.
855 Maastricht, as I see it, is in any case somewhat out of date. It is just a step in this process, in due course to be followed inevitably by another such step. If we are to keep a seat at the negotiating table, if we are to pursue what has been our traditional policy of diplomacy during the centuries and long before the Common Market was thought of —which was to keep an eye on what is going on in Europe in order to advance and protect our interests, and surely that is the policy that we must continue to pursue within the EC—the empty chair will serve us no better today that it has ever served in the past.
The system adopted—and we cannot act otherwise—is that the treaties are concluded as between heads of member states and are then submitted to the respective Parliaments. There is no viable way in which the United Kingdom can "buck" the system without serious damage to our standing and influence in the affairs of Europe within what we hope will become the enlarged European Community.
Further delay in the passage of this Bill, already too long delayed, would be seen by other member states as yet another manifestation of our incomprehensible insularity: the odd man out playing at blind-man's buff. Members of the Committee may well think that by convention and tradition the role of this Chamber is to uphold the constitution and the exercise of the royal prerogative; not as innovators to initiate these proposed derogations from the constitution.
For those reasons it is the hope that the Committee will not accept the amendments.
§ 6.30 p.m.
§ The Earl of Onslow
It is normally reasonable that Members who have put their name to the amendments should speak before others but I shall let that gently pass. The noble Lord, Lord Campbell, said that the amendment affects the Royal Prerogative. I suggest that that has already been done by writing into the Treaty of Maastricht that it will be renegotiated and committing the Royal Prerogative to renegotiate a new treaty in 1996. As regards an attempt being made to bind a future Parliament, Article Q of the Maastricht Treaty provides that the treaty shall be for an unlimited period. Therefore, the argument produced by the noble Lord, Lord Campbell of Alloway, appears to be totally fallacious.
The view put forward by my noble friend Lord Beloff appears to be self-evidently sensible to those of us who have doubts about the actual workings of the treaty and who are of the opinion that it will invariably implode inwards when its incompetences are realised by everyone and not just by a few. It seems to me that if we are to renegotiate a new treaty it is important that the Government go to the negotiating table with the support of both Houses of Parliament, with the support of the people and with the support of a policy which has been clearly laid out as regards what is required, rather than what happened at Maastricht. That was, basically, a reaction to what the French and Germans had done and to say, "Oh, because Lady Thatcher is no longer here we had better do something", and landing ourselves in the muddle in which we now find ourselves.
856 I know that the noble Lords, Lord Aldington and Lord Cockfield, will move their wise old heads in askance when I say that the treaty will eventually collapse. I bet a pound to a kipper that it will.
§ Lord Simon of Glaisdale
I agree with the noble Lord, Lord Campbell of Alloway, in his criticism of these amendments, which are unacceptable. I believe that the noble Lord, Lord Beloff, has identified an area in which it is possible that our procedures can be improved. I suggest that the noble Baroness might consider referring the matter to the Procedure Committee.
The noble Lord, Lord Campbell of Alloway, said, firstly and rightly, that these proposals modify the Royal Prerogative to negotiate and sign treaties. That is not answered by saying that the future negotiation of a treaty is envisaged. Even if it is, as the matter stands at present the prerogative of the Crown stands unmodified.
There is a second reason. It would be quite absurd to modify the Crown's prerogative in the narrow sphere of treaties relating to Europe. That anomaly simply does not make sense. If it is to he modified at all it should be modified generally. I surmise that the amendment was drawn in the way that it was in an attempt to keep within the Long Title. I am by no means certain that it has done so. It is difficult to argue that these amendments are consequential on the Treaty of Maastricht.
However that may be, there is the further reason that the noble Lord, Lord Campbell of Alloway, put forward; namely, that it is a fundamental constitutional doctrine that, in the famous words of the common law, Acts derogatory of future Parliaments bind them not. Anything that is passed by one Parliament can be altered by a future Parliament: so that is never attempted because it is an act of futility. However, I believe that, there may be scope for improving our procedures. The normal parliamentary course in relation to treaties is that the Crown has the prerogative to negotiate and sign treat ies but in order to ratify, in the case of a complicated treaty, the Crown is bound to try to secure any necessary alteration in our domestic law which will bring it into line with new treaty obligations. That is what this Bill does.
In theory, doing that, there should be no difficulty in parliamentary control, albeit ex post facto, over the alterations that have been effected by the treaty. In the case of this treaty and this Bill Members of the Committee have ranged widely and have been uninhibited by strict rules of order. Many of the discussions on amendments must have gone beyond the normal rules. It may well be, therefore, that the Procedure Committee would wish first to examine whether what has been done in this case is an advisable precedent. If it is not, it may wish to consider whether something along the lines of what was suggested by the noble Lord, Lord Beloff, and the noble Earl who has just spoken might be introduced into our procedure.
I can see that there are very grave difficulties, although something of that kind is done in the United States where, although the President has the 857 prerogative of treaty making, in modern times, not infrequently, members of Congress are identified with the negotiating machinery. I must say that the thought of the noble Lord, Lord Stoddart, being associated with the Prime Minister at Maastricht, Edinburgh or Copenhagen provides a light note in the proceedings on this Bill. However, something of that nature may be considered alongside what has been proposed in the amendment. But, in the meantime, I agree entirely that the amendments are not acceptable.
§ Lord Aldington
I remind the Committee of the procedure that has taken place in this Chamber before the Maastricht Treaty was negotiated. I agree entirely with what my noble friend and the noble and learned Lord said about prerogative. However, behind the strict words of the amendment, I detect a desire on the part of my noble friends whose names are to the amendment that Parliament should be associated with the policy behind the proposals which Ministers will negotiate with other Ministers. That is exactly what happened in the case of Maastricht.
Members of the Committee may have forgotten that a special ad hoc Select Committee was set up. It carried out a full inquiry into economic, monetary and political union. We addressed to your Lordships a very full report which was debated twice. During the course of the negotiations, which seemed to cover all the points that we took up, there was a slight change and a further inquiry was carried out and a further report made to your Lordships. There was then a further debate, to which the Government responded giving their views.
It is true also in the case of Maastricht that this place as well as the other place considered the Government's proposals in great detail before the treaty was finally negotiated. Therefore, I suggest to the Committee that there is no need to consider again the procedure in connection with amendments to the European Communities Treaty. A Select Committee exists to deal with such matters and it will continue the precedent set by the noble Baroness, Lady Serota, when she was chairman of that committee.
§ 6.45 p.m.
§ Lord Cockfield
I agree entirely with what my noble friend Lord Campbell of Alloway said. At first sight this may appear to he a reasonable amendment but as the noble and learned Lord, Lord Simon of Glaisdale, pointed out, it is of major constitutional importance because it changes the balance of power between the Executive and the legislature.
Changes of that kind have been made over the centuries, although not always to the public advantage. However, they have been made. If they are made, they should be made as a result of proper and full consideration and not as a result of feelings on one particular issue.
I agree entirely with my noble friend Lord Aldington that those matters were very fully debated both in this Chamber and in another place. If we feel that additional time should be given to debating those matters, no doubt that can be done. But we should 858 not, under any circumstances, make major constitutional changes on the basis of a single and particular case.
§ Baroness Chalker of Wallasey
It may be for the convenience of the Committee if I pick up a few of the comments made on this group of amendments. There is absolutely no doubt that what my noble friends Lord Campbell of Alloway and Lord Cockfield, and the noble and learned Lord, Lord Simon of Glaisdale have said about the amendments is very true.
The amendments would fetter the prerogative in the field of treaty making. I know that that is not unprecedented in EC law but it is quite clear that Amendment No. 407 would impose not a specific fetter but a general fetter on treaty making. That is why, in short, I cannot accept Amendments Nos. 407, 408 and 414.
It has been a consistent practice as regards treaties for Parliament to pass any necessary domestic legislation after signature but before ratification. I believe that that practice affords sufficient protection of Parliament's legitimate right to influence and any future substantive amendments to Community treaties will require an Act of Parliament just as we had the Single European Act and just as we are now discussing a Bill on the Maastricht Treaty. That is Parliament's opportunity to have its say.
I understand the procedural anxieties which have been expressed by my noble friend Lord Beloff and I understand also the comments made by the noble and learned Lord, Lord Simon of Glaisdale. At times the Committee has been in some doubt about whether we were debating the amendment before us. However, as those Members of the Committee have said, that is a matter for the Procedure Committee.
I urge Members of the Committee to vote against the amendment if it is pressed. It would be not only wrong to fetter our procedures but I believe that it would be a very unwise step. I cannot accept those amendments.
§ Lord Beloff
It is not my purpose to press this amendment but I must make it clear that there is an unbridgeable gulf between myself and my noble friends Lord Campbell of Alloway, Lord Cock field and others who take the same view.
The amendment does not refer to the general power of making treaties by the use of the prerogative. Treaties are made on many occasions and some are minor; for example, to cede a distant islet or make a particular provision for some commercial matter. We are here—and I agree in this regard with my noble friend Lord Campbell of Alloway—dealing with a major constitutional issue. However, the constitutional issue is not the relationship between the legislature and the Executive. The constitutional issue is the wish of some persons in this Chamber and outside it and on the continent of Europe that Britain should become part of a European superstate to which successive meetings to amend the treaties will direct themselves, as has been made quite plain by Chancellor Kohl, by President Mitterrand and by other European leaders.
This means we are discussing something on a totally different level from our internal constitutional 859 arrangements. Once we have entered into that situation, the balance between the legislature and the Executive in this country will become of relatively minor importance to anyone except the specialists. I implore Members of the Committee to take their minds off the current debate in this Chamber or indeed in this country and observe more closely what is being urged upon us in Europe. At that point we may find our enthusiasm for entering into further arrangements diminished. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 408 and 409 not moved.]
Lord Morris moved Amendment No. 410:
After Clause 6, insert the following new clause:
Meaning of "municipal elections
(". The term "municipal elections" in Article 8b of the Treaty on European Union shall mean in the United Kingdom elections at town, parish, district or county council level only.").
The noble Lord said: This amendment flows from Article 8 of the Maastricht Treaty which establishes for every citizen of the United Kingdom a citizenship of the European Union which they neither asked for, nor have they accepted. They must have been as delighted as I, and no doubt the Committee, to read the incredibly generous rights that have been imposed upon us. Article 8b states:
Every citizen or the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides".
As we in this Chamber have no right to vote in general elections in this country anyway, the Committee can imagine the delight that filled my heart on reading that article. I thought how wonderful it was that I should be given a righ be given a right — I never asked for that in the first place — to vote in an election in another country. Thate is too Iudicrous even to contemplate. howerver, having handled that delight with as much joy as I could meant. I have been led to believe that the influence of Humpty-Dumpty has reached other states of Europe and that the other states of the Community have read into this word anything that best suitedc them. It is of critical importance that the meaning of the term "municipal" —that has been variously interpreted by memeber states —within United kingdom law is absolutely clear. That is the sole intention of this amendment. It is an attempt to probe Her Majesty's Government on the precise meaning of the term and it is an attempt to suggest that some clarity be introduced into domestic law. I beg to move.
§ Lord Hacking
I wish briefly to intervene as this matter was considered by Sub-Committee E of a Select Committee of this Chamber. We produced a precise report upon the matter, and the provisions that are set out in the Maastricht Treaty while not identical to our recommendations run entirely within the spirit of those recommendations.
The Minister of State, Home Office (Earl Ferrers)
In the debate on citizenship that took place in this Chamber the other day, I twice gave an assurance to the noble Lord, Lord Stoddart of Swindon, who was concerned about the matter, that "municipal" in this 860 context cannot be taken to mean national. I am happy to give my noble friend Lord Morris that assurance again this evening. I shall try to make the position as clear to him as I can because he still labours under an anxiety.
In our domestic arrangements we have basically now three types of elections: elections to the European Parliament; parliamentary elections and municipal elections. In the national context, municipal elections mean local authority elections. In international law, though, the word "municipal" has a different meaning. It is used to draw the distinction between, on the one hand, international law and, on the other hand, national law. In international legal parlance domestic law is called municipal law. In this international parlance the word "municipal" is not used to mean national in the context of elections. It never has been and it is well known not to do so.
My noble friend is worried for fear that the word "municipal" in the Maastricht Treaty might be taken to mean that Article 8b refers to national elections. I can assure him that that is not so. It applies only to local elections and elections to the European Parliament and not to national elections. This is well known and it is clear to all our partners in the European Community. I hope therefore that I have been able to lay to rest any ghosts of apprehension or fear which my noble friend might still have harboured.
§ The Earl of Onslow
Before my noble friend finally sits down, does what he has said mean that a British subject residing in Germany can vote in Lander elections or only in bürgermeister elections?
If a person was resident for a certain length of time in another country in the Community, he would be able to take part in that country's local municipal elections but not in its national elections.
§ The Earl of Onslow
My noble friend has not answered the question. Lãnder are states in the Federal Republic of Germany. Can we vote in state elections in federal countries abroad or not?
§ Lord Richard
Before the noble Earl answers, I should tell him that the invisible people in the Box are nodding hard in assent to the proposition.
I am deeply indebted as I always am to the noble Lord the Leader of the Opposition. Unfortunately I do not have eyes like a chamaeleon but I am happy to give the confirmation which my noble friend seeks. The answer is "Yes".
Lord Belhaven and Stenton
Can my noble friend say whether, for instance, British subjects or French subjects who are resident in Germany for a certain period of time will be able to vote in European parliamentary elections?
§ Lord Stoddart of Swindon
I did not intend to intervene at this point but the nods of assent in relation to the question asked by the noble Earl, Lord Onslow, on whether British citizens will be allowed to 861 vote in Länder elections in Germany raise another interesting point. Have I understood correctly that British citizens will be able to vote in Länder elections?
§ Lord Stoddart of Swindon
What would be the position if, for example, we altered our local divisions into regions rather than counties and districts as they exist at the present time? Would there be a risk under this provision that, say, Frenchmen or Italians coming over here would be able to vote in regional elections and that they would be the English equivalent of Länder elections?
The noble Lord, Lord Stoddart of Swindon, has a vivid imagination and he tries to speculate on What might happen if we altered the arrangements for voting in this country. We must address the basic question which is that the word "municipal" in international law refers to national things as opposed to international things. In the context of elections "municipal" does not mean national elections; it means local elections. It would be up to the government of the day of the country concerned to decide whether, if it altered its internal arrangements, that would constitute a municipal election. My understanding of the hypothesis which the noble Lord, Lord Stoddart of Swindon, puts forward is that it would still be a case of a local election.
§ Lord Monson
What would be the case if some form of Northern Ireland Assembly were to be revived? Would continental Europeans resident in Northern Ireland be able to vote in elections for that assembly?
Again, it is undesirable to try to fulfil all kinds of hypotheses. I come back to the original point, which is that if it is a national election they will not be able to participate. If it is a local election they will.
Lord Belhaven and Stenton
I am sorry to come back to my noble friend, but I did not ask him an imaginary question. I thought that I asked him a concrete question: would a British or French subject resident in Germany be allowed to vote in elections for the European Parliament in Germany?
§ Lord Cockfield
There is no problem about that. It is specifically covered by paragraph 2 of Article 8b.
In the light of that information from my noble friend, for which I thank him, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 411 to 420 not moved.]
§ Baroness Trumpington
I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage should resume not before 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
862 House resumed.