European Union (Amendment) Bill

My Lords, this is one of the most significant provisions in the treaty and it is sad that having run out of time to discuss it in Committee, we are now considering it at this late hour on Report. The noble Lord, Lord Hannay, says that it is not a passerelle, but this is a measure which allows the EU, through the Council, to extend its competences. Under this clause, the EU can take powers to pursue its objectives where the treaties do not provide for them. As we know, the objectives are set out in very broad terms in Articles 2 and 3 of the treaty, and at the moment at the end of Article 3 it states: "““The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the treaties””." So it is limited to the competences in these treaties. We have heard a lot about the fact that the competences of the EU are only those set out in these treaties. Lo and behold, we now have an article which says that if there is a competence that the EU needs to pursue those objectives but which is not set out in the treaties, we can decide to adopt that competence. I do not find much reassurance in the constraint that if the treaty says you cannot harmonise laws, then it cannot be used to harmonise laws. I am aware of only a small number of cases where the treaty specifically prohibits harmonisation of laws—some under the area of freedom, security and justice—but I do not think most competences that the EU might want to take on are covered by that restriction. Yes, it excludes defence and foreign affairs, for which we should be grateful, but that still allows huge scope for extension of competences to achieve these very broad objectives in Article 3 for any measures that the EU wants to take which are not currently set out in this treaty. It is true that Article 308 provided very similar powers and the noble Lord, Lord Hannay, is right that those went back to earlier treaties, but they were, as was described earlier, constrained in the wording of the earlier article by the need for the measures to be necessary for the operation of the Common Market or the internal market. That is a very different scope from a clause which removes that condition and allows any competence to be taken on board to meet any of these very broad objectives which, I remind your Lordships, include things such as achieving a highly competitive social market economy, social progress, technological advance, and solidarity between generations. There is no end of things that could be taken on board to meet those objectives under this clause. As we know from the inquiries made by the noble Lord, Lord Pearson, of various Ministers across the Dispatch Box, Article 308 has been used in the past to provide measures which went beyond the internal market because, although we are told that the European Court never exceeds what the treaty says, the law has been interpreted here in a very permissive way to allow Article 308 to be stretched beyond the original meaning. In that sense, this clause tries to legitimise the abuse that has been made of Article 308 in the past, but in doing so it not only legitimises that position but opens up huge opportunities for further development of competences under this treaty. To my mind, that would traditionally have needed a new treaty. Extending the competences of the European Union should not happen without a proper treaty. This article allows it to be done by unanimity, but by the Executive. The whole purpose of these amendments is to ensure that there is proper parliamentary scrutiny of things which otherwise would have required treaties. I am amazed, and would have brought this up in Committee if we had discussed it, that this is the one huge provision which is not included in the Bill under Clause 6, where the Government believe that parliamentary control of decisions is needed. Paragraphs (a) to (i) are listed but the biggest gateway to the adoption of new competences is not apparently seen as worthy of the same level of parliamentary scrutiny as the other decisions listed under Clause 6. I believe it should be. If the Government were to add it to the provisions in Clause 6, that would be a satisfactory measure. In the absence of that, I believe that this amendment is essential to protect proper parliamentary scrutiny of the treaty. If my noble friend is not satisfied tonight, I very much hope that he might consider bringing this back at Third Reading. I think it is far too important to pass at this late hour without proper debate.