---

European Union (Amendment) Bill

I support the amendment. It does not matter, I suppose, if it is not put in the Bill, but its intention and the clarification that it incurs seems pretty important to me. One of the more distasteful aspects of this debate has been the pretence that we are not dealing with constitutional points. I shall deal with the point raised by my noble friend Lord Hannay. There is no question that the treaty of Maastricht was a constitutional treaty that was put to the people of this country in the general election of 1992 by the then Prime Minister, John Major. He won the election and that greatly reduced the case for a referendum, although I believed that, because so much division of opinion remained, it would have been beneficial to have had a referendum. The European Union amendment Act, which brought in the single market, was also constitutional, although less so than the Maastricht treaty. I believe that the Maastricht treaty was extremely important and good. Its pillared structure tried to introduce a much needed clarification of the separation of powers exercised predominantly by the Commission and the Parliament. The supranational elements should be defined as such and we have to accept that that is an aspect of the European Union, of which we are a member. There is a supranational element within it, and that has always been controversial. It was hotly debated in the House of Commons, of which I was a Member when the original treaty went through. I believed that some measure of pooling of sovereignty was a reasonable part of the European commitment and I have never changed from that view. The question, which was becoming more clouded prior to Maastricht, was: was any element specifically not supranational? The great benefit of the pillared structure was that it defined those elements that were not supranational and were the province of the member states. They included foreign policy, defence policy and some aspects of the judicial process. In my view, it would have been much better to maintain that separation in the current negotiations, and I believe that it was a triumph for those who want all aspects of European activity to be supranational to have got rid of the pillared structure and to have, in effect, no great distinction. That is one reason why I believe that this treaty should never have been negotiated in the first place. However, it can be claimed by the Government that in the past year, when there was an attempt to renegotiate the treaty, that was the one area where significant improvements were made. I pay tribute to the legal advice given to the Government during that period and to the determination to try to improve the treaty. Of course, we were greatly helped by the fact that the French and Dutch knew perfectly well that there was no possibility of avoiding a referendum unless there was more clarification. The way in which the treaty was drafted and the reversion to an amendment Bill have led to some considerable improvements in defining foreign and defence policy as being between the nation states—the signatories to the treaty—and not supranational. However, other aspects are not fully clarified. Whatever else, and as I have already indicated, the Government can claim great success in doing that, and no doubt we shall hear that that is the case. That only goes to demonstrate that this is a constitutional Bill. The Government have to grapple, first, with the decision to get rid of the pillared structure of the Maastricht treaty, which is itself a fundamental constitutional question, and then, post-Giscard d’Estaing, they have to try to restore some of the structures of Maastricht but in a different way through amendment. Therefore, as I said, I cannot possibly argue that this is not constitutional. The other argument has been used very effectively in another place—perhaps not in the Parliament but certainly in the country. When the former Foreign Secretary, Jack Straw, argued for a referendum, he made it clear that this was a constitutional Bill because it created a new post—that of the European president of the Council. He also mentioned the double-hatting, with the special representative for foreign affairs becoming also a vice-president of the Commission. These are deeply constitutional questions. If you have previously argued that the special representative for common foreign and security policy, Javier Solana, who in my view has done the job with incomparable skill and demonstrated that we needed that post, should also be made a vice-president of the Commission, you blur the distinction between foreign policy being for the member states and a member of the Commission being supranational. I shall not go into the arguments for or against it now. There are arguments for it and it tidies up some aspects, but its fundamental weakness is that it blurs that distinction. Nevertheless, it is a constitutional question. The new role of President of the European Council is fundamentally a constitutional question. Hitherto, presidents of the European Council—a council of Heads of Government—have been composed entirely of people who are themselves members of the Council; they are heads of the European states, elected and answerable to their electorates. We now have a completely new position. We can, and no doubt will, argue at various stages whether it is right or wrong, but this is a constitutional matter. In my view, it is profoundly wrong. We always knew that the six-month rotation would have to change once the Community was composed of many more than 12 member states. Very few people will deny that you cannot have the President of the European Council changing every six months. However, alternatives were put forward such as the grouping of member states, which already exists. Such groupings could be much more formalised, with the largest state within a grouping holding the presidency of the European Council for 18 months or two years, which many of us would think was sufficient time for anyone to be president of the Council. Those are matters of argument but who can deny that they are constitutional? It is impossible for the Government to change their minds about this because, in my view, in order to win this argument about a referendum, they rather foolishly jumped on the argument that this is not a constitutional Bill. They would carry more conviction in this House if they openly admitted that it is constitutional but that its nature as a constitutional Bill does not pass the threshold of importance for a referendum. There is a case for that. We have had some amendment Bills on the constitution which have not been of massive importance and about which most of us would have said, in a flexible structure of referendums, that we did not need a referendum. Personally, I have always been apprehensive about adopting the practice used in the Irish Republic of automatically needing to have a referendum however small the constitutional amendment may be. I am beginning to realise why the Irish legislature and the Dáil, in their wisdom, decided on that: it is the only way in which one can cope with a Government’s capacity to argue that black is white and white is black. In this House, I, along with the noble Lords, Lord Healey and Lord Prior, once proposed an amendment, trying to make a distinction for a referendum between constitutional matters and non-constitutional matters. I admit that it was quite hard to do and one had to put in an arbiter, and the only one we could think of was the Speaker of the House of Commons, who does not always like that position but prefers matters to be dealt with by the usual channels. When we have a Government who insist that major constitutional matters in the European Union are automatically matters for referendum, they will have to define what is a constitutional Bill or they will simply need to have a referendum for every amendment, which is not a desirable course, as I say. I shall delay the Committee no further. It seems to me to put logic on its head to argue that this is not a constitutional Bill. You can argue that it is a very desirable constitutional Bill; you can argue that it is not a major constitutional change; but to argue that it has no constitutional elements in it seems to me to be quite unsustainable.