European Union Bill

The amendments have been tabled by my hon. Friend the Member for Daventry (Chris Heaton-Harris) and myself, as well as several other Members, including my hon. Friends the Members for Aldridge-Brownhills (Mr Shepherd), for Harwich and North Essex (Mr Jenkin), for Wellingborough (Mr Bone) and for Northampton South (Mr Binley), and the right hon. Member for Belfast North (Mr Dodds) of the Democratic Unionist party. We are dealing with a very broad provision in the treaty known as article 352, which is generally described as a flexibility clause but which has an ancient and controversial history. Even back in the 1970s, before I came to the House, when I was practising law, I was discussing a very controversial provision known as article 308, and I shall tell hon. Members why. When, in our legal processes and legislative procedures we pass laws, we do so on the basis of what is stated in an Act of Parliament and we consider the words. Some of the remarks I made in the previous debate on clause 7 about abstract principles are related to this issue. Ordinary statutes, particularly in the field of administrative law, frequently make certain provisions after a whole series of propositions in different sections. Right at the end, there is often an expression such as, ““And all such measures as may be regarded as reasonably necessary to carry out these functions,”” but they are very carefully constrained by the administrative court, and the tests are quite significant. If there is a catch-all provision that has the effect of enlarging the existing treaty arrangements, it is incredibly important to make sure that what is included can be justified and has proper authority. In the context of legislation that comes to the House and thereafter affects the daily lives of the electorate, we already know, for reasons that I do not need to enlarge on, that the manner in which legislation is implemented could, in a nutshell, be one or two lines or a paragraph in a treaty that are equivalent to an entire Act of Parliament. With that comes a whole process of interpretation that is different from our own, because it is not necessarily precise and because it looks at purposes—it has a purposive quality. Then there are provisions relating to subsidiarity that generally are not adhered to. When we are dealing with a specific treaty and considering its wording and range, we should ask, when it becomes part of UK legislation through section 2 of the European Communities Act, as enforced by the courts and their system of interpretation, how far and to what extent it was anticipated that the legislation being spelt out, even in a treaty, would result in certain consequences in terms of the precise policies that will emerge from the process. It is incumbent on us to implement the law, under section 2, but at the same time there is a great degree of collateral within which the actual provisions in a treaty are brought into effect, and there is also their effect on the people to consider. In many instances, people could not reasonably have been expected to know exactly how that provision would turn out in policy. I happen to be a bit of a traditionalist and I think that when we pass legislation it should be consistent with policy making, but sometimes I think that my hon. Friends—I say this with great respect to them—are not necessarily quite as conscious when considering such issues about the direct impact of it all on the electorate, or about the degree of discretion that we are giving both to the European Union and to Ministers in implementing these sorts of provisions. What is the effect of article 352? I shall explain my concerns about the Bill in relation to that wide-ranging provision, and I shall quote from article 352. It is important to set that out, as it is the framework for my general concern. Article 352 states:"““If action by the Union should prove necessary””—" that is a big question; who says?—"““within the framework of the policies defined in the Treaties””—" which have an enormously wide ambit, including what they involve, their purpose, nature and interpretation—"““to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously””—" that is important—"““on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.””" The article continues:"““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””—" not Ministers, though they have the right to determine whether or not they will apply the unanimity rule. There is then a provision stating that where subsidiarity arises,"““the Commission shall draw national Parliaments' attention to proposals based on this Article.””" The article goes on to say that such measures shall not entail the harmonisation of member states' laws or regulations where the treaties say that there should not be such harmonisation. Finally, it states—this is important—that the article cannot serve as a basis for attaining objectives relating to foreign and security policy, and it imposes certain restrictions consistent with limits set out in article 40 of the Treaty on European Union. That is what article 352 states. It is a very wide provision. It is certainly subject to unanimity by the Council. I therefore assume that my right hon. Friend the Minister will assure us that the veto would be used, were the existing treaties—wide and deep as they are and effective as they are on our constituents—to be amplified by the use of that extremely wide power. I should mention that a few years ago the European Scrutiny Committee went over to see the Commission and its legal advisers. We had a full report on the provision in question, which at that time described as article 308. My amendments would knock out the provisions that would enlarge the Government's capacity to bypass—I use this language carefully—the principles on which I assume Parliament would want to insist. Because of the ambit of the measure, we should ensure that it is used as tightly as possible. At the moment, the article can be used only where the existing treaties have not provided the necessary powers. Clause 8(1) provides that any one of the conditions in subsections (3), (4) or (5) has to be satisfied in relation to an article 352 decision, but subsection (3) contains the general rule, which is the one that I would insist on, which is that the UK may not agree to a decision under this broad article unless the decision has been approved by Act of Parliament. That is fundamental. Where there is this enormous expansion of power, fundamentally it should be done only where the decision has been approved by Act of Parliament. I have no problem with that whatever. Subsection (4) provides for parliamentary approval of urgent or emergency uses of the flexibility clause without the need for an Act of Parliament. The explanatory notes say that this"““has been used in the past for urgent or emergency uses, where rapid EU action has been agreed but where there was no explicit legal basis on which to base that action””," and that certain sub-paragraphs stipulate"““that the UK may agree to the adoption of a measure based on Article 352 in urgent or emergency cases if””" approved by motion without amendment in each House of Parliament. I regard that as perfectly reasonable in the circumstances. So we have a process and an agreement. First, it has to be unanimous, then it comes to Parliament, and then it has to be approved by Parliament because it affects people and it is so broad that restrictive control needs to be kept over how the process operates in this House. Subsection (5) provides"““that an Act of Parliament would not be required for any Article 352 proposal which satisfies any of the exemptions listed in subsection (6).””" According to the explanatory notes, the exemptions are to"““prevent…Acts of Parliament to approve measures which have been agreed in substance under previous measures using Article 352””." In those circumstances, a Minister has to lay a statement before Parliament saying that the use of a flexibility clause is for an exempt purpose, in which case parliamentary approval is not required. This is where I have great difficulty. The ambit of article 352 is such that it seems that there are no exceptional circumstances in which the exemptions specified in subsection (6) should divest Parliament of the opportunity to approve. Basically, the fundamental point that I seek to make is that those provisions should be left out. As the debate proceeds, I hope that this point will become more obvious, because other amendments will give specific instances of the manner in which the arrangements would operate. I simply wanted to indicate that I am not in favour of the exemption that the Government are giving. Under subsection (6), the exempt purposes include—some of the language is rather arcane—"““to extend a measure previously adopted under that Article to another member State or other country””." I am extremely concerned, for many reasons that I have already touched on and hope to come back to later, where we say something will affect us as part of the EU only in certain circumstances. My worry, which permeates much of my concern about the Bill, is about the cases in which someone might say, ““Well, it affects only the eurozone, not us.”” I strongly believe that in such circumstances we must be vigilant, because the eurozone does affect us and whatever we do will affect us. It seems to me that we should be vigilant and ensure that parliamentary approval is needed in circumstances where a measure has been adopted under the article and extended to another member state. I am issuing a general concern about the whole area. Article 352 is very broad, as I think the Minister will accept. I understand that it is subject to unanimity and that in limited circumstances there would be a case for something short of an Act of Parliament, but I do not think that there are circumstances, in the cases that I have described and within the framework of those exemptions, where it is so broad that Parliament should effectively be bypassed. That is my main proposition, but there are other specific matters that colleagues will raise.