European Union (Amendment) Bill

moved Amendment No. 160A: 160A: After Clause 6, insert the following new Clause— ““Parliamentary control of opt-ins (1) A Minister of the Crown may not commit the United Kingdom to new obligations, or alter the obligations of the United Kingdom, under the following provisions unless Parliamentary approval has been given in accordance with this section— (a) Article 3 of the Protocol on the Position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as amended and renamed by the Treaty of Lisbon, permitting a notification of the wish to take part in the adoption and application of a proposed measure pursuant to Title V of Part 3 of the Treaty on the Functioning of the European Union, (b) Article 4 of that Protocol, permitting a notification of the wish to accept a measure adopted pursuant to Title V of Part 3 of the Treaty on the Functioning of the European Union, (c) Article 4 of the Protocol on the Schengen acquis integrated into the framework of the European Union, as amended by the Treaty of Lisbon, permitting a request to take part in some or all of that acquis, (d) Article 10(5) of the Protocol on Transitional Provisions annexed to the Treaty of Lisbon, permitting a notification of the wish to participate in acts which have ceased to apply to the United Kingdom pursuant to Article 10(4) of that Protocol. (2) Parliamentary approval is given if— (a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to commit the United Kingdom to new obligations, or to alter the obligations of the United Kingdom, and (b) each House agrees to the motion without amendment. (3) In this section ““the Treaty on the Functioning of the European Union”” means the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon).”” The noble Lord said: Amendment No. 160A stands in my name and those of the noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Rowlands. The report on the Bill by your Lordships’ Select Committee on the Constitution, published on 28 March, 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””." It is a matter for regret that the Government have failed to provide their response to the report before Committee stage, as was indicated, although I appreciate the pressure on officials. The committee recommended that the Government obtain approval from both Houses of Parliament before using opt-ins or opt-outs in any policy area. It believed that it would be consistent with the Bill’s policy to require parliamentary approval of the use of the simplified revision procedure and passerelles. In the area of freedom, security and justice, issues of criminal law and policing are being brought into Title V of the treaty on the functioning of the European Union—an innovation that Dr Valsamis Mitsilegas of Queen Mary’s College told your Lordships’ committee in evidence amounted to fundamental constitutional change. This amendment includes all possible opt-ins under the proposed new arrangements. The opt-ins are set out in the following parts of the Lisbon treaty: Article 3 of the protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice; Article 4 of that protocol; Article 4 of the protocol on the Schengen acquis integrated into the framework of the European Union; and Article 10(5) of the protocol on transitional provisions. It will later be open to your Lordships to consider scrutiny of the potentially much less controversial opt-outs under Article 5(2) of the Schengen Protocol and Article 10(4) of the protocol on transitional provisions. In parenthesis, in my view it is of great importance to public confidence in our relationship with the European Union that actions such as opting into any part of such fundamental constitutional change are properly approved by Parliament. We have seen quite enough feeling in the country that things have been done without enough parliamentary approval or people understanding what is going on. Your Lordships’ European Union Committee, under the chairmanship of the noble Lord, Lord Grenfell, emphasised the importance of ensuring that all opt-in decisions are subject to systematic parliamentary scrutiny, and cautioned that the Government must maintain a proper balance between liberty and security. It took evidence from the noble Baroness the Leader of the House on 13 May on the question of parliamentary scrutiny of possible future opt-ins. I shall not delay your Lordships this afternoon by reiterating the points that were made. Suffice it to say that, in her letter to the noble Lord, Lord Grenfell, on 29 April—which she kindly copied to me—the Minister described ““the Government’s overriding priority”” to ensure that, under the Lisbon treaty, the United Kingdom can continue to benefit from valuable JHA co-operation. In my view, this is going to have to be matched by an equally overriding priority of parliamentary scrutiny of possible future opt-ins. The notion that government could take decisions on changes to law, particularly criminal law, on the basis of material not in the public or parliamentary domains may be acceptable to officials, but it will not be acceptable to Parliament. A system of parliamentary controls of individual opt-in decisions need not impede our ability to participate fully in the JHA co-operation. Brussels—I use the word to cover everything that happens there—is fully conscious of our parliamentary timetable, and the likelihood of some ambush being mounted on us by our European partners on the eve of the Summer Recess is frankly negligible if not inconceivable. Our own system of parliamentary business management is admirably flexible—see Northern Rock as a recent example—and these are not going to be frequent occurrences. There is no reason whatever, if the Government of the day have the political will, why an affirmative resolution could not be debated by both Houses within three months. In the Republic of Ireland, both houses approve or disapprove opt-ins as soon as a proposal is published. Moreover—a point not mentioned in the Minister’s letter to which I have referred—Article 4 of the protocol on the position of the United Kingdom and Ireland in the area of freedom, security and justice allows member states to opt into measures at any time after they have been adopted. So the United Kingdom would not be blocked from such initiatives if for any reason parliamentary approval was not achieved within the three-month period, although it is conceivable—but highly unlikely—that the British and Irish negotiating hand might be marginally affected in such very unlikely circumstances. It is inconceivable that the noble Baroness the Leader of the House is unaware of the seriousness with which noble Lords regard this matter. Before we return to it on Report, let us hope that some of the Government’s advisers attain the same level of enlightenment; may the truth be seen by many. Lines in the sand may be washed away by the tides of history but they should not be washed away by the tides of bureaucracy—nor should public confidence. I beg to move.