European Union (Amendment) Bill

moved Amendment No. 28E: 28E: After Clause 6, insert the following new Clause— ““Parliamentary scrutiny of measures necessary to attain Treaty objectives (1) A Minister of the Crown may not vote in favour of, or otherwise support, a decision under Article 352 of the Treaty on the Functioning of the European Union that permits the adoption of a measure necessary to attain one of the objectives set out in the European Union Treaties, in cases where those Treaties have not provided the necessary powers, unless Parliamentary approval has been given in accordance with this section. (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 vote in favour of, or otherwise support, the decision, 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: My Lords, we now come to a more elaborate and important amendment, which concerns the matters about which I have just been speaking in my comments on the previous, much smaller amendment. I want to bring into the Clause 6 world the passerelle provisions and the accountability provisions—measures to ensure parliamentary approval of provision for the EU to adopt measures to obtain treaty objectives. That sounds like yet another debate on passerelles but of course it goes much further than that. We now have another article—I hesitate to state the number because in my copy of the treaty it is Article 308, but I believe that it has somehow become Article 352. That has received curiously little attention, but it is an article that we should discuss and consider carefully if we are to attempt to do our duty in examining the whole Bill properly. The article, which in my version of the treaty is Article 308, but which I think has become Article 352, states: "““If action by the Union should prove necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament””—" a body about which we have heard an awful lot recently— "““shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament””." Could we have some real illumination of the real implications of that, what it might mean in the future and what we are signing up to? It is not very clear, it needs to be clear and we need to have the right clarification on the record. In addition, I have some comments on the objectives of the treaty and the powers that can be mobilised to achieve them. We had a very interesting debate this afternoon. My noble friend Lord Hunt made a brilliant speech—alas it did not carry the day in votes, but it was brilliant all the same—on the proposals in the amendment tabled by the noble Lord, Lord Goodlad. The debate was really all about whether opting in should have the same parliamentary brakes on it and the same statutory controls in the Bill as the other passerelles in Clause 6. The House decided that it should not. The excellent report of the noble Lord, Lord Goodlad, also reminded us of what might be called the hidden worry about the treaty: the whole range of other passerelles that it has inherited from past treaties and that are not listed in Clause 6 and are not in the Bill. There is a whole string of them. After the debate, I learnt by looking at a document that had been deposited on my desk that the Government had replied to the Bill and the treaty of Lisbon implications for the UK constitution. I refer to the report of the Constitution Committee, which unfortunately had not reached me. Ministers may say that that is the incompetence of my not-very-large organisation, that it should have reached me and that it was tabled and reached the Printed Paper Office, but I felt it rather sad that it did not reach me until this afternoon after the debate. I may be wrong. Perhaps the noble Baroness referred to it in the debate. I am not sure whether she did. Perhaps she could tell us when she comments in a moment. Here it is, and it is full of information that I wish I had had—I also wish my noble friend Lord Hunt had had it because he did not have it either—for this afternoon. I shall concentrate in particular on the information that was prompted by the comments in the report by the committee of the noble Lord, Lord Goodlad, which suggests that past issues under the parallel procedures should also be taken into account. Indeed, the report says: "““We call on the Government to provide a list enumerating all these provisions in order to allow Parliament to consider during the passage of the Bill whether each one should or should not be subject to parliamentary control under clause 6””." That is quite an important statement, which did not feature very much this afternoon. If I had known the nature of the Government’s reply to it, I would have certainly urged others to raise it or raised it myself. It tells us that there is indeed a big and powerful list of issues that allow treaty changes without resort to any kind of intergovernmental conference. There is the provision in the first paragraph, which allows the European Council by unanimity—that is quite fair; I am not making QMV points at this stage—to amend the number of commissions. That is an old one, but it is there still. There is the provision that allows the Council to strengthen or to add to citizens’ rights. That is an important provision that comes from a previous treaty—the Maastricht treaty—and is there still. One is always open to the gibe, ““Why didn’t you think of more accountability on that at the time of the Maastricht treaty?””. ““I do not know, I cannot remember””, is my answer. Now that we are piling up these provisions, which allow the treaty to be elasticised and expanded, we are starting to become anxious about it, and rightly so. There is the provision that allows the Council to confer jurisdiction on the European Court of Justice in disputes relating to legal acts creating EU intellectual property rights. We did not hear much about that this afternoon; yet here is an important provision, again inherited I think from the treaty of Nice but one that could be used in the future and that allows an extension of the powers and involvement of the ECJ. Another provision allows the Council to add to the list of criminal offences defined at EU level and, again, every member state must agree, but there it is. A ““member state”” means a government in the European Parliament—not the national Parliaments, incidentally—so that one could be flicked through. There is a provision that allows the Council to add to matters for which directives can be made on criminal procedural law. Again, member states must agree in the European Parliament. Another provision is to extend the European public prosecutor’s powers to include serious crime having a cross-border dimension; and so on. I quote: "““Each of these passerelles is limited to specific and clearly demarcated policy changes””." As I have emphasised, they do not provide a specific move from unanimity to QMV, although presumably under other parts of the passerelle machinery they could be moved from specific unanimity to QMV. So I have a little complaint. It is fair enough for the Government to confine their own information to the debate and everything else, but we are trying to improve this Bill. So far we have not had all that much success because zero amendments have been achieved, but even by our debate, if not by voting things through, we are trying to improve it. It would have been helpful for those of us who have the honour, the privilege and the duty to move these various amendments in order to fulfil our line-by-line examination and duty to get the right documents at the right time. I repeat that this document arrived on my desk after the debate on the committee’s report this afternoon. I do not think that that is right. But that is probably background to the broader issue of the need to look very carefully at the ways in which the powers exist and can be expanded, developed, lengthened and strengthened for achieving the treaty’s objectives, and how that can be done with or without proper parliamentary control. We prefer it to be with effective parliamentary control and not too much power for the Executive. Others have a different view. I understand it, but I think that it is wrong and out of date. In the mean time, I beg to move.