European Union (Amendment) Bill

My Lords, it is a great pleasure to follow my very old friend, the noble Lord, Lord Pearson of Rannoch, and to listen to his lectures on the practice of democracy. I am sure that what he said will, as always, be taken extremely seriously by noble Lords and by those in another place who have put themselves to the inconvenience of being elected. The noble Baroness the Leader of the House referred to the report of your Lordships’ Select Committee on the Constitution, as did my noble and learned friend Lord Howe and others. We heard contributions from the noble Lord, Lord Rodgers, who is a member of the committee, and the noble Baroness, Lady Quin. I shall not repeat what they said. However, I shall share with your Lordships some of the conclusions that were reached in the report published last week and I shall highlight some of them. Even the noble Lord, Lord Pearson, may find some comfort in them. The report is complementary to that of the European Union Committee which is chaired by the noble Lord, Lord Grenfell, and we are greatly indebted to the Government, all those who gave evidence and the specialist advisers who helped us with our report. The approach of your Lordships’ Constitution Committee to the Lisbon treaty is quite different from that of other committees because it is charged by your Lordships to concern itself exclusively with changes that may be brought about to the workings of the British constitution rather than the operation of the European Union’s institutions and processes. We have made comments and recommendations on Parliament’s control of amendments to the treaties governing the EU. We welcome the requirement created by Clause 5 that the Government must seek parliamentary approval before ratifying any future amendments to the founding treaties made under the ordinary revision procedures but we call on the Government to explain and resolve the relationship between the new requirements created by Clause 5 and the existing requirements under Section 12 of the European Parliamentary Elections Act 2002 for parliamentary approval of treaty amendments that enlarge the powers of the European Parliament. We have also welcomed the provisions in the Bill that establish parliamentary control over government decisions under the passerelle mechanisms but we believe that there are two ways in which the procedure should be strengthened to ensure proper scrutiny. We recommend that the Government should lay an Explanatory Memorandum or a Written Statement when tabling a Motion seeking approval for support of a specified draft decision and we also recommend that the Bill be amended to ensure that Parliament is given enough time to scrutinise the proposals in respect of passerelles. Some passerelle mechanisms existed in earlier EU treaties but we are not convinced that that alone provides justification for the Bill’s omission of a comprehensive list of passerelle and similar enabling provisions in the Lisbon treaty and in previous treaties. We therefore ask the Government to provide a list enumerating all those provisions in order to allow Parliament to consider during the passage of the Bill whether each one should such be subject to parliamentary control under Clause 6. Constitutional stability is a desirable objective. The Government view the reforms that will be brought about by the treaty as providing a lasting settlement. Your Lordships’ committee therefore hopes that, if ratified, the treaty will provide a period of stability in which the Government can use their influence to ensure that such is the case. On the European Union’s competences, questions of distribution of power are complex. In the UK, devolution and membership of the European Union have the combined consequence that the UK Government and Parliament operate under a system of multi-level governance. For practical purposes, they have such powers as have not been conferred on the devolved Administrations and legislatures or the European Union. The committee therefore welcomes the treaty's attempt to set out with greater clarity the demarcations of responsibility between member states and the European Union. Those demarcations will continue to be open to interpretation by the European Court of Justice. Your Lordships' committee therefore welcomes the enhanced role of national Parliaments proposed by the Lisbon treaty. We have proposed that both Houses should work together to develop complementary scrutiny procedures, particularly in respect of the role of Select Committees. It would also be helpful for Parliament to seek involvement in the policy-making procedures of the European Community. On nations and regions, it is obviously necessary to develop enhanced co-operation between the Government and the devolved Administrations on those aspects of European Union policy that are devolved or have implications for the devolutionary settlement. To that end, meetings of the Joint Ministerial Committee should be more frequent and more open to public scrutiny. We also believe that there is a need for co-operation between the UK Parliament and the devolved legislatures on European Union matters, particularly the yellow card procedure for policing the principle of subsidiarity. We therefore suggest that the respective legislatures give further consideration to a formal mechanism for improved co-operation on those issues. Perhaps most important is the area of freedom, security and justice. Your Lordships’ committee concluded that the importance of how the opt-ins and opt-outs are used is such that Parliament must be fully involved in their use. We have therefore recommended that the Bill be amended so as to require that the Government obtain approval from both Houses of Parliament before using opt-ins or opt-outs in any policy area. That would be consistent with the Bill’s policy, so declared, of requiring Parliamentary approval for the use of the simplified revision procedure and the passarellles. Finally, many of the issues examined in our report, including the competencies of the EU, the interpretation and application of the charter and the detailed working out of the consequences of the UK's opt-outs and opt-ins, particularly in relation to the area of freedom, security and justice, will be shaped by the European Court of Justice’s adjudications in future years. For Parliament and the people we serve to be fully informed of the European Court of Justice's interpretation and application of the Lisbon treaty's provisions, your Lordships’ committee recommends that the Government lay before Parliament an annual report on their assessment of the impact of the court’s rulings on the United Kingdom. In interpreting and applying the charter, the European Court of Justice will increasingly refer to the case law of the European Court of Human Rights and so the relevant rulings of that court ought also to be covered in the Government's annual report. The provision of such an annual report would complement Parliament’s efforts in recent years to seek greater information about the operation of the United Kingdom’s courts through, for example, the requirement of the Constitutional Reform Act 2005 for the Supreme Court to make an annual report and the Lord Chief Justice’s proposed regular reports on the courts system in England and Wales. I hope that these proposals, which in some ways are more pedestrian than some of the more high-flown proposals that have been part of our debate this afternoon but are none the less fairly radical, will commend themselves to your Lordships’ House in the subsequent proceedings on the Bill. Your Lordships’ committee, like that chaired by the noble Lord, Lord Grenfell, did not think it appropriate to form a view on the desirability or otherwise of a referendum. Although as a former participant in the discussions of the usual channels, of whom I see a number of representatives here, it pains me to say so, I fear that the decision will have to rest on consideration of the merits of the arguments.