European Union (Amendment) Bill

It is perfectly true that there are additional provisions for majority voting in the field of CFSP. The details are complex, and they are not the subject of this group of amendments, but the thrust of my hon. Friend's intervention is correct. Amendment No. 44 would subject the setting up of the office of European public prosecutor to the same parliamentary procedure. That is not strictly a passerelle matter, but it should be agreed by the House. The Government have a veto, as they do on all the passerelle clauses, but I contend that a conclave of European Ministers sitting in private should not be able to make treaty amendments, and certainly not without parliamentary approval. However, in the treaty they can agree between themselves to set up the office of European public prosecutor. The Government are against that proposal, and have said:"““We are firmly opposed to establishing a European Public Prosecutor. Unanimity does not mean that this article can be accepted.””" They were right about that. Unanimity is not an adequate safeguard, because once provision is made for a European public prosecutor, the presumption is that one day it will be agreed to. To that extent, the matter is prejudged, which is why the Government wanted all references to the European public prosecutor to be removed from the treaty. As with most of their amendments, they failed, so the provision is in the treaty and can be triggered by unanimity. My modest amendment requires that if the Government give way on their previous adamant objection to a European public prosecutor, the decision should have the consent of both Houses of Parliament. Amendment No. 46 would do the same on setting up a common European Union defence—in other words, a European army. The treaty is confused. Some articles state that European Union defence policy ““may”” lead to a common defence, whereas other articles state that it ““will”” lead to a common defence, if the European Council agrees it unanimously. The Foreign Affairs Committee called those provisions ““clumsy and ambiguous””, and it was right. Indeed, the Government agreed with the Committee, because they tabled an amendment to take out the second reference and to make it clear that that ““may”” lead to common defence. As is so often the case, they lost the argument. Amendment No. 46 would simply add the additional lock that this House and another place should agree by vote or, as I would prefer it, by primary legislation, if a decision is made to move to a common defence and set up a European army with all that that implies. Amendment No. 47, which has also been tabled in my name and those of my hon. Friends, would rectify another weakness in the Bill. Clause 6 states that Ministers"““may not vote in favour of or otherwise support a””" proposed passerelle clause without ““Parliamentary approval””. As it stands, however, they could abstain, and if they were to do so, the matter could be adopted, because matters can be approved by unanimity, even if some member states abstain. That is a loophole, and amendment No. 47 would require the Government actively to vote against any such proposal, rather than not voting in favour of it. In summary, the passerelle clauses extend the self-amending mechanism, of which we have seen very little in the past, and clearly form a key component of the treaty of Lisbon. My amendments would complete the list of passerelles, which is not complete at the moment—the Government should have corrected that matter. They also add similar elements, such as the setting up of a European public prosecutor and a move to a common European defence, and close the loophole that would allow the Government to make such changes by abstaining. I shall finish by advancing the case for amendment No. 48, which goes further. It would require parliamentary approval—an affirmative vote in both Houses—before agreement to any measures in the European Council or the Council by unanimity or in an area made subject to qualified majority voting in the treaty. That would establish for the first time real parliamentary control over the obligations imposed on this country from the EU. That approach has been adopted by the Scandinavian Parliaments, which literally mandate their Ministers before decisions are taken. Scrutiny of European legislation in this House is, by common consent, totally inadequate. That was the conclusion of the Modernisation Committee report of some years ago. The Government have now responded to that—again, very modestly and inadequately. We can all see that, even with the new proposals from the Leader of the House, the House really has no power. We are at the bottom of the food chain; we are subjected—members of the European Scrutiny Committee have weekly experience of this—to a torrent of European Union draft regulations, directives and decisions on which we cannot decide in any real way. We have to accept them; all we can do is take note of them. Amendment No. 48 would disapply decisions passed by unanimity or under the areas of qualified majority voting introduced by the treaty of Lisbon from having an effect in the United Kingdom. The amendment would do so notwithstanding section 2 of the European Communities Act 1972. As a non-lawyer, I am advised that in the Factortame case it was observed that British courts would allow the 1972 Act to be overridden if another statute made clear that its provisions were notwithstanding section 2 of the 1972 Act.