12th May 2008 speeches by Lord Blackwell

Full Text of the debates is available from Hansard on the Parliament website 

Lord Blackwell: I support my noble friend's concerns on the definition of competences in this treaty. It is one of those issues whereby those who seek in our debates to minimise the impact of these treaties will say, "Here you have things listed in black and white that limit the powers of the European Union, and therefore that must be a constraining thing". Others will look at the same text and say, "Actually it is enabling of the European Union, because it is sufficiently

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ambiguous and vague to allow huge extensions of the role of the EU". We will hear both arguments about this use of language.

In my view, the definition of shared competences was, in the words read out by my noble friend, that the EU can legislate in any area where there is a shared competence with unlimited scope. Once the heading is there-and he did not quote an exhaustive list-the treaty prescribes that, as long as the EU can make some tangential reference to the matter in hand as being related to one of the headings, the EU can claim the competence to legislate in that area. We know that as a result of the extensions that the treaty brings in, the EU will have a right in most of those areas to legislate by qualified majority voting. Therefore, these provisions open up almost any area in which the EU might want to legislate as being accessible to it through an extension of these so-called shared competences.

It is notable that the wording of the treaty states that national Governments can-it does not include the word "only", but it might as well do so-legislate in areas where the EU has not legislated. In other words, we have given the EU the first right to legislate in all these areas. Our national Governments are allowed scope to legislate only in areas where the European Union has not legislated. If those were only a few tight areas related to the working of the Common Market or trade policy, one might think that that was reasonable, but when the headings are as broad as they are, covering just about every conceivable area of domestic policy-whether economic, social, political, environmental, or on justice and home affairs-you realise that we are creating a European Union that has carte blanche to legislate in all those areas. The few areas that were not thought of to be included under those headings are then put in another category of supporting legislation, whereby the EU can act to support or complement the laws of nation states. It does not take too much insight to understand that most of these areas will rapidly be turned into areas where the support and complementarity of the European Union is also becoming a major driving force for legislation.

There is a genuine concern that this aspect of the treaty gives the European Union carte blanche. It is a significant innovation and needs further explanation.

Other Lords spoke

Lord Blackwell: A number of the amendments in this grouping relate specifically to the single market and the customs union. Those, at least in the shape of the Common Market, have been part of the European Union since its foundation. Before we nod these changes in the treaty through, however, we need to consider whether they take those two institutions in the right direction and whether we are close to the point where they may no longer be acting in our best interests. One has to compare anything that is bound up in these treaty structures with the alternatives of simply adopting a system of free trade and free capital movement. We may be moving in the wrong direction because the treaty-as we have heard from its objectives, which introduce the objective of a social market economy-is moving the regulations and apparatus of the single market further away from free trade and free competition and closer to the objectives of a protectionist, high-cost, uncompetitive market structure that may not be in our best interests.

We no longer have dedication to liberal markets in the European Union. The movement towards a social market, as opposed to a liberal market, is an explicit adoption of a political philosophy that ends up producing harmonisation by legislation and regulation that is not always intended to achieve the most competitive outcome for our businesses and our competitive standing in the world. The alternative is to have harmonisation driven by market forces, by businesses adopting those standards and regulations that they believe it is in their interests to adopt to be able to sell in those markets that they want to sell in. Increasingly, those markets are not in the European Union but, by selling into those markets, our businesses are now burdened by the costs and regulations imposed by this protectionist market in Europe. We are reaching the point where the balance of costs from the single market, as it has evolved, is too high. A number of noble Lords have mentioned aspects of that. The City of London is an

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important example of the single market being used in ways not necessarily in our interests. We are reaching the point where we need to take stock of whether further moves in the direction that this treaty takes us in, towards a social-market view of the single market, are in our interests.

Similarly, the customs union has increasingly become a protectionist vehicle, where deals which we might have done and supported to open up free trade to benefit third-world countries as well as our own economy have been blocked because of the CAP hostage that the European Union has put as a blockage to any further trade liberalisation. Again, this is not necessarily in our interests. While I understand the point that will be made-that the customs union and the single market are, in essence, part of the foundation of the European Union and are not introduced by this treaty-we need to consider that the changes this treaty is bringing about, and the objectives that it puts into the European Union in the operation of those aspects of the Union, are taking us in the wrong direction. It is, at best, a missed opportunity for the Government not to use this treaty to try to get those reforms. At worst, it takes us in a direction that may be very damaging for the UK.

Lord Pearson of Rannoch: Would my noble friend agree with a point that I forgot to make in my recent brief intervention? The overregulation from Brussels applies to 100 per cent of our economy, including the 80 per cent that takes place in the domestic market. It also hits the 10 per cent of our vital trade with the emerging super-markets of the East, and so on. Is that not another important consideration when we consider our relationship with Brussels?

Lord Blackwell: I am happy to endorse the comments of my noble friend.

Other Lords spoke

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10.15 pm
Lord Blackwell: I have no doubt that the measures that my noble friend has just explained are some of the most far-reaching and chilling proposals in the whole treaty. As they are understood by the population at large, they will cause outrage. What my noble friend described was, as he said, the abolition of the intergovernmental nature of these justice and home affairs measures and their incorporation into the main treaty in a way which will bring in QMV, the jurisdiction of the European Court of Justice and co-decision by the European Parliament.

Matters of criminal justice and policing are matters for a nation where the electorate can elect or de-elect the Government who are responsible for those matters. The electorate can hold that Government to account. They can elect or de-elect the parliament that makes those laws on their behalf. I do not believe that a European council voting by majority is democratic representation of a nation. Nor do I believe that a European Parliament, however much language is used about it directly representing European citizens, represents a national voice on these matters or is an appropriate forum to decide the national laws that apply in this country.

The European Union is not a nation. The United Kingdom is a nation. Its Parliament is the place where criminal laws, policing laws and the role of justice in this nation are decided until such time as the Government tell us that we are no longer a nation and the European Union has become that nation-a proposition which, thankfully, they continue to deny. The fact that this treaty moves us away from a nation having control over its own laws in this area is a hugely significant matter. In support I quote a much-quoted report from the European Committee of this House, which has made some salient points on the matter. It said:

"The move to QMV in almost all areas of FSJ is a significant change ... It is likely that one effect of the change will be an increase in Union activity and the volume of legislation agreed in this area".

The European Union has not brought in these measures in this treaty to sit on the sidelines; it has brought them in to legislate in these areas. That is what it intends to do. The report continues:

"The change will remove Member States' vetoes in respect of criminal law and policing and legal migration. This means that it will be possible for the UK, in some cases, to be bound by a measure in the area of criminal law or policing against its will, although the likelihood of this happening will be greatly reduced by the existence of a general right not to opt in for the UK".

I will return to that point in a minute. In respect of the power of the ECJ, the report continues:

"For the first time, Member States will be able to be taken to the Court for failure to implement properly EU legislation in the area of criminal law and policing".

In other words, even if this Parliament were to vote for a measure that reflected the will of the people of this country, this Government could be taken to court in Europe for not implementing a different measure that had been voted in by QMV in Europe. That is what we are considering.

I am sure that the Government will say, "That is all very well, but we negotiated opt-ins". There are two

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problems with the opt-in, which my noble friend on the Front Bench has mentioned. The first is the matter of existing measures which we have already agreed under the previous arrangements where we will not have the choice of retaining the status quo. We will have either to agree to those measures being brought in to the new area, where the Court of Justice and QMV applies, or to opt out of those measures and bear whatever costs are imposed. Again, the report makes it clear that,

"the Treaty does not leave open the option of retaining the status quo in respect of Title VI measures after the transitional period. At the end of the period at the latest, the UK must either accept the Commission's enforcement powers and the ECJ's jurisdiction in respect of such measures or exercise its block opt-out, again accepting that if it chooses to opt back in to any particular existing measure, the Commission's enforcement powers and the ECJ's jurisdiction will apply".
There is a whole set of measures where we would be forced either to comply or to opt out and bear the cost. There would be many other areas where, at first blush-the Government are trying to be friendly and co-operate within Europe-we will agree to areas that are then amended. The problem is that once we have agreed to an area, any amendment that follows will be by QMV and will bring us under the jurisdiction of the ECJ. Again, I quote from the report:

"The suggestion that the UK, having opted in to a proposal, could argue that its opt-in did not extend to fundamental amendments to the proposal during negotiations raises an interesting legal question. But the question is unlikely to arise ... In some areas of criminal law and policing, a dramatic change during negotiations may permit the UK to use the emergency brake to halt a measure's progress. In other cases, the UK may end up bound by a measure with which it does not fully agree; this is the nature of QMV".

We are entering territory where a fundamental shift is happening in the criminal justice and legal system, which is moving from an area that is under national control of a national parliament and national Government, elected by the citizens of the country, to a territory where it can be imposed on us by qualified majority voting or parliamentary decisions in Europe, even where this nation has a different view. We should not do so without having that fully explained to the people of this country.

Other Lords spoke

Lord Blackwell: Most of us would accept that states should co-operate to assist each other in many areas, for example in combating terrorism or money-laundering; the Minister mentioned a number of other areas. What has not yet been justified is why those areas of co-operation-which are obviously beneficial to all those states involved-cannot continue to be achieved by intergovernmental co-operation, as they have been under the old Pillar 3 provisions?

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Why is it necessary to have EU legislation, with things introduced by qualified majority voting and a codecision of the European Parliament, as opposed to states agreeing that they want to co-operate on these sensible areas? Those matters do not start and end at the European Union borders. We have to co-operate with the United States and with other countries; why do we need to move away from the intergovernmental process in this fundamental area?