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Like the amended FSJ protocol, the amended Schengen protocol permits the UK, along with Ireland, freedom to decide whether or not to participate in Schengen measures. It is also clear that the UK will no longer be bound to take part in Schengen-building measures

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where it participates in the underlying acquis. That is a significant change. What is clear then is that under the FSJ and Schengen protocols, the UK cannot be forced to participate in an FSJ measure against its will. So, if the UK takes the view that a proposed measure has features that cannot be accommodated within a common law system or are otherwise unsuitable for application to the UK, it is free to refuse to opt in and, if it wishes, to play no further part at all in relation to the proposal. A decision not to participate in an amending measure or a Schengen-building measure may have consequences, and if threatened with ejection from an existing measure, the Government will have to decide which course of action best serves UK interests. But we do not expect such cases to arise frequently.

At present, there is no systematic parliamentary scrutiny of UK decisions on whether or not to opt in to particular FSJ measures. The European Scrutiny Committee in another place has drawn attention to this in the context of the Lisbon treaty. We do so too, and we intend to give the matter further consideration. Meanwhile, your Lordships' Constitution Committee, in its excellent report on the treaty's impact on the UK constitution, has made a specific recommendation in this regard, and we shall certainly be examining that carefully.

I come now to the impact of the Lisbon treaty on the EU's foreign, defence and development policies which we discuss in chapter 7. I am happy that the noble Lord, Lord Roper, will be speaking. He chairs our Sub-Committee C, which undertook a thorough examination of the treaty's impact on this area of EU activity. I do not wish to pre-empt. I just want to draw attention to our conclusion that the treaty neither changes the scope of the CFSP nor transfers any additional powers to the EU in this area. The new provisions could lead to a more active role for the EU in the area of CFSP, but much will depend on the degree of consensus among member states regarding such a role. I should also like to emphasise our conclusion that the treaty has preserved the independence of the UK’s foreign and defence policy, subject to the constraints arising when unanimous agreement does prove possible. This was a third red line. On the treaty's significant institutional changes—in particular the changes to the post of high representative and the creation of the External Action Service—the noble Lord, Lord Roper, will, I know, have some interesting things to say.

I come now to social affairs, which we cover in chapter 8. In the area of employment and social affairs, the UK Government drew a fourth red line. In order to maintain member states’ financial autonomy, the UK negotiated an “emergency brake” with regard to social security measures for migrant workers and their dependants, an area which has moved from unanimity to QMV. The emergency brake enables any member state to request that a proposed measure be referred to the European Council should the state believe that it would affect important aspects of its social security system. The Department for Work and Pensions has indicated its belief that the mechanism maintains the UK’s ultimate control over any changes to social security measures for migrant workers. Incidentally, a similar emergency brake arrangement applies in the field of criminal law.

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The inclusion among the treaty’s objectives of the protection of children’s rights will, in our view, have an important impact by making future legislative instruments potentially subject to an assessment of their impact on children’s rights. We find it significant that the treaty introduces sport as a new competence, emphasising that the Union must take account of the specificity of sport and its social and educational function, although any harmonisation of the member states’ laws and regulations in this area is specifically excluded. The provision of a legal base for sport is also intended to ensure that EU legislation does not impose unintended consequences on sporting activities. After all, one does not want the popular Clean Bathing Water Directive to prevent the Oxford and Cambridge Boat Race from being rowed on the Thames.

Chapter 9 deals with finance and the internal market. We find that the impact of the Lisbon treaty on the internal market will be limited, but there are four points worth briefly making. The treaty gives the EU a clearer and more explicit shared competence in energy policy, and moves it to QMV. With respect to competition, we considered the significance of the exclusion, on the initiative of France, from the TFEU’s list of principles and objectives of a commitment to undistorted competition, as appears in the current TEU. It was agreed instead to include in a protocol on the internal market and competition a reference to,

“ensuring that competition is not distorted”.

We would be concerned if any possible symbolic downgrading were translated into efforts to depart from the principles of free competition which have formed the cornerstone of the internal market. However, since treaty articles and protocol articles have the same legal weight, the change ought not to be significant in reality.

Environment, agriculture and fisheries are dealt with in chapter 10. I am very grateful to my committee colleague, the noble Lord, Lord Sewel, for participating in this debate since he is chairman of our Environment and Agriculture Sub-Committee and will be addressing these issues. The fact that climate change is mentioned for the first time in an EU treaty is significant, as is the provision on civil protection in relation to environmentally-related disasters. The move to co-decision in agriculture and fisheries is clearly significant, and equally significant for this area is the abolition of the distinction between compulsory expenditure, which includes agriculture, and non-compulsory expenditure. I know that the noble Lord, Lord Sewel, will address these issues.

The final area in which we made an impact assessment was that of the role of national parliaments. Noble Lords will find that in chapter 11. We regard it as settled that the Lisbon treaty places no obligations on national parliaments even if a sense of obligation can be construed from the provisions as translated into some other languages. But in English it is perfectly clear. Though we are asked to ensure the EU institutions’, in particular the Commission’s, compliance with the principle of subsidiarity, and to contribute actively to the good functioning of the EU, it is inconceivable that anyone would seek to enforce these obligations. That said, national parliaments will in our view be

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under a strong political obligation to take seriously the new opportunities created by the treaty, and in this House I am sure we will want to do so.

The treaty introduces new procedures which have become known as the “yellow” and “orange” cards. Within eight weeks from the date of transmission of a draft legislative Act in all of the Union’s official languages, any parliament or chamber may submit a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity A voting system then applies, with two votes for each parliament, one vote for each chamber in a bicameral parliament, operated separately. Chapter 11 of our report details the differences between the two cards, the orange card wielding heavier sanctions but at a higher voting threshold. Suffice it to say that we believe these sanctions will rarely be invoked, but their existence gives scrutiny teeth while making it less likely that the sanction will need to be deployed, which is just as well. Despite the novelty of the card procedures, and their prominence in the treaty, we should not overestimate their importance. Breaches of the subsidiarity principle in draft legislative Acts are quite rare. That said, parliaments will no doubt take the new procedures seriously, but it should not distract attention from the scrutiny of policy, which is crucial.

My final point is that the Lisbon treaty will have consequences for the procedures of this House and for our committee. We have set them out on page 246 and I will not weary the House with a recital of them. If the Bill is passed, we will need to put some of these matters to the Procedure Committee.

Your Lordships have been very patient, and I apologise for the length of my intervention. But, as I said at the start, this is a very complex treaty, and our committee owes it to the House to contribute through our report to a proper understanding of what its impact really is. I therefore commend the report to the House.

1.45 pm

Lord Hannay of Chiswick: My Lords, the Lisbon treaty, whose ratification by the UK we are debating today, is by no means the most significant of the European treaties this House has been called on to endorse. That title probably belongs either to the original decision to join the European Community in 1972, which marked a fundamental choice by this country, albeit one which is still sadly challenged by some in this House; or, alternatively, the title goes to the Single European Act of 1986 which triggered off the most far-reaching process of economic integration in the single market, which has hugely benefited our economy and every citizen in these islands. Or perhaps it should go to the Maastricht treaty establishing the single currency and covering a much wider sweep of policies than does the present treaty.

Nevertheless, this is a treaty of real significance and nothing is to be gained by pretending it is not. Ratification of it should equip the European Union of 27, nearly five times the number of the original members and set to increase in the years ahead, to face future challenges far better than the existing treaty provisions would do. Failure by this country to

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ratify it would prolong and intensify the already overlong tensions over institutional reform, which have long distracted the European Union from other, higher priorities. It would bring a halt to the process of further enlargement, which has been one of this country’s principal objectives, and it would cast a deep shadow over the UK’s membership.

What this treaty is not is some fundamental shift of powers from the member states to the European institutions, unlike some of the earlier treaties I mentioned. Indeed, it could be argued that the creation of the post of the President of the European Council, the clear primacy given over the EU’s external policies to the High Representative and the subsidiarity controls vested in national parliaments mark a shift away from earlier centralising and federalist trends. What this treaty is also not is the same thing as the constitutional treaty which was rejected in France and the Netherlands. Not only does it lack the latter treaty’s constitutional framework but the removal of the symbols of statehood in that document is of real significance. One has only to imagine what the opponents of this treaty would have been saying today about those symbols if they had been included in this treaty to understand that point.

On the issue of the differences between the two treaties, I can only continue to commend to the House the report drawn up by the Dutch council of state, the only truly impartial study of the matter, which was clear that the two are indeed very different in their thrust. Looking at that council of state’s report is preferable to concentrating, as they did in another place, on the similarities or differences between the DNAs of mice and men.

As the House begins its work on the ratification of the Lisbon treaty I should like to pay tribute to the encyclopaedic report we have received from our own EU Select Committee. I think I can do that without being accused of self-congratulation since the section of that report provided by Sub-Committee C, on which I have the honour to serve, represents a relatively modest part of the whole. Suffice it to say that in terms of clarity, comprehensiveness and objectivity, I do not believe it can be faulted even though some might criticise it as lacking in drama and hyperbole, which no doubt explains why in contrast to other reports on the same subject it has received so little attention in the media. That is in itself a sad commentary on the nature and style of the European debate in this country as mirrored in our press.

Surely the most important thing we have to debate today is whether the changes made in the Lisbon treaty are in the overall interest of this country and of the European Union, on whose efficiency and effectiveness we depend to such an extent in the interdependent, globalised, international community of today. It is really rather hard to gainsay the fact that, in almost every policy field, we are more likely to achieve our national objectives by acting in concert with our European partners than by acting alone and without them. Can we achieve our objectives on climate change acting alone, or on obtaining freer trade and investment, or on stabilising the Balkans, or on ensuring our competitiveness through a deeper and more complete

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single market, or on defining policies towards Russia and in the Middle East? I could go on, but that would be extremely tedious. The simple point is that, if we can best achieve our objectives in all these fields and more by acting through the European Union, we need a European Union capable of acting decisively and flexibly, not continually reduced to the speed of the slowest ship in the convoy. That is the heart of the case for institutional change, and for accepting moves to the use of qualified majority voting in fields where vital national interests are not at stake. On balance, this country has already gained substantially from the use of qualified majority voting. Now, under the Lisbon treaty, our weight in establishing these majorities is to be increased. If there is any question of using the passerelle clause in the treaty to move further down the road towards qualified majority voting, this Parliament will have the final say on whether it should happen.

Probably the most far-reaching changes in the Lisbon treaty are those which involve the restructuring of the handling of the European Union’s external policies. It is not before time. The Union has been seriously underperforming in its external policy formulation and execution for many years. This is only partly due to divergences between member states, although they have on occasion, as over Iraq, been deep and serious. It has been due also to the dysfunctional nature of the institutional machinery, divided between the Commission, with many of the financial resources and controlling many of the instruments of economic policy, and the Council, with a final say on policy. And then there has been the pantomime horse of the rotating presidency, due to come to us now only once in every 14 or more years. The new structures, with the high representative bringing together all the threads of policy and chairing the Foreign Affairs Council, should be capable of achieving much greater coherence and effectiveness. Important decisions remain to be taken on the relationship between the president of the European Council, the president of the Commission and the high representative, and on the implementation of the treaty provisions establishing the external action service. But the potential is there for a common foreign and security policy capable of furthering and defending our collective interests better than has ever been the case in the past.

Nothing has been more revealing of the basic attitudes of the opponents of this treaty than the way in which they have consistently denigrated the new provisions dealing with subsidiarity and the role of national Parliaments in ensuring that the European Union legislates only where matters cannot better be handled at member state, regional or local level. The creation of new powers in the EU legislative process for national Parliaments is surely something that we should welcome with open arms, not damn with faint praise. It will certainly be a challenge to make those new provisions work effectively, and I hope that, in due course, the noble Lord, Lord Grenfell, will give the House the thoughts of his committee on how this process should best be managed. Meanwhile, this marks an important innovation in the European Union’s institutional machinery.

There has been much sound and fury in the other place and in the press over whether this treaty needs to be approved in this country by a referendum. I have no

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doubt that we shall hear plenty about that, too; indeed; we have already begun to do so. We shall be asked to consider amendments on that issue which I hope we will reject. It is worth remarking that only one member state will hold a referendum on this treaty—Ireland—and that only because its supreme court ruled a considerable time ago that the Irish constitution required any European treaty changes at all to be so submitted. That is to say that the Irish requirement for a referendum is nothing to do with the content of the treaty or with its similarity or lack of it to the constitutional treaty. I have always taken the view from the 1970s onward that the practice of representative parliamentary democracy in this country over many centuries argued strongly against the use of referendums in the context of approving European treaties. I criticised the decision in 2004 to hold a referendum on the constitutional treaty; I spoke in this House immediately after it was announced. I was confirmed in my negative views about referendums in this context not so much by the outcome of the Dutch and French referendums as by the campaigns in those countries, which had little to do with the details of the treaty under consideration and much more to do with the attitude of the electorate to the president and Government of the day. If referendums on European treaties cannot be concentrated on the treaties in question, and I can see no way of ensuring that they are, what on earth is the basis for arguing that they represent a higher form of democratic legitimacy than approval by Parliament? I am sure that we will hear it said that the opposition to a referendum is purely opportunistic, based on the fear of a negative outcome, but can the proponents of a referendum seriously ask us to believe that their motivation is not opportunistic?

The weeks ahead will provide ample opportunity for the House to consider every aspect and detail of the Lisbon treaty, and that is as it should be. It would be nice to think that this will clear the air and pave the way for us to concentrate with greater unity on other aspects of European policy, from climate change to policy towards Russia, from budgetary and agricultural reform to the Union’s further enlargement, including the accession of Turkey. There are few greater ironies than the fact that while most continental Europeans believe that this treaty was tailor-made for the UK—President Sarkozy’s eloquence reflected that when he spoke the other day—its opponents here regard it as a federalist straitjacket. Well, they cannot both be right. I have no doubt where the balance of the argument lies, and that is why I wholeheartedly support the ratification of this treaty.

1.57 pm

The Lord Bishop of Chichester: My Lords, I apologise for making my maiden speech when so many noble Lords wish to speak and thereby taking up their time, but it has the advantage that I have to be concise. Convention also requires me to be non-controversial. Well, I shall endeavour to obey that, although, as President Sarkozy said so clearly last week, this is a sensitive matter. They were very delicate words.

Personal conviction apart, I have two particular interests in wanting to speak today. Symbolically, the more important is the fact that this year will see the

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50th anniversary of the death of one of the greatest Europeans of the last century, who also happened to be my predecessor: George Bell, Bishop of Chichester from 1929 to 1958. This may not be the last time that I mention his name in your Lordships’ House. It has been said that, apart from William Temple, George Bell was the only English churchman of the 20th century of whom everyone had heard. His interests and sympathies were manifold, but it is his specific concern for Europe that I mention today.

Bell was a strong supporter of the confessing church, which stood against Hitler in the 1930s. He took a particular interest in the plight of refugees who fled from Nazi tyranny only to find themselves interned indiscriminately as aliens when they came to this country. His friendship with Dietrich Bonhoeffer, the martyr, was legendary. His welcoming spirit is perhaps best exemplified by his patronage of the artist Hans Feibusch, whose work is an important testimony to the moral dimension of aesthetics.

More politically, Bell understood that the concept of the just war applies both to the cause of war, which is why he supported the war against Nazi tyranny, and to the prosecution of war, which is why he spoke in your Lordships’ House against the destruction bombing of Dresden. A notable historian has written that the moral ideas espoused by Bell,

“held the foreground in the early phase of the post-war European movement before it was hijacked by economists”.

If that is controversial, please blame Professor Davies, not me.

I shall share with your Lordships the reaction of some of my European friends and colleagues, particularly in Germany and Scandinavia, to the news of my appointment as Bishop of Chichester. They greeted it with the words, “Ah, the see of Bell: that is an inheritance”. Yes, it is an inheritance, right at the heart of which is a moral vision of the European project, and it is good to see that highlighted in Article 2 of the amended treaty on the European Union.

My second interest is that for most of the 1990s I was the Bishop of Gibraltar in Europe, the Church of England diocese covering the whole of mainland Europe, while the Continent was digesting the immediate implications of the collapse of Soviet power. “Europe” from the perspective of the Church of England means all continental Europe together with Morocco, Turkey and the whole of the Asian part of the former Soviet Union. What I found especially fascinating in those years was to oversee the emergence of what had begun as embassy chaplaincies into authentic local churches; to accompany those local communities, particularly in eastern Europe, as they began to reclaim property stolen or appropriated in earlier revolutions; and then to share with local churches and other communities of faith what it means to be both European and a believer and to be both European and a citizen or subject of a particular nation. It is in that context that I support the Lisbon treaty.

Like Pope Benedict and, I suspect, like George Bell, I am sorry that the framers of modern European legislation are so reticent about acknowledging the Christian foundations of European identity, the Christian roots of the Enlightenment and convictions about

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human rights and, indeed, the Christian motivation of the founders of the current European project. But be all this as it may, this is a venture which deserves our encouragement. As President Sarkozy identified so precisely last week, for too long we have devoted our energies to divisive institutional debates rather than to what unites us. The Lisbon treaty may be imperfect but it may, he suggested, draw a line under the confrontations of the past and invite us to engage in concrete projects.

Although I would love an opportunity to debate robustly with him some of what he went on to identify as those projects, and particularly some that he did not mention, I have no doubt that he is correct in saying that Europe needs the United Kingdom to be thoroughly inside rather than outside those discussions, and that we have a far greater chance to make a powerful and value-laden influence if we are there than if we are or are perceived to be semi-detached critics.

I think this treaty is an improvement on the existing arrangements and am glad to support this Bill.

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