European Union Bill

I am grateful to my hon. Friends the Members for Stone (Mr Cash) and for Daventry (Chris Heaton-Harris) for the courteous and logical way in which they have set out their views and spoken to the amendments. Clause 8 provides for the prior parliamentary approval of a decision by the Government to support future uses of article 352 of the treaty on the functioning of the European Union through an Act of Parliament, subject to certain defined exceptions. Article 352 can be used to adopt measures in order to attain one of the EU's objectives where the existing treaties have not provided the specific legal base on which to do so. The measures concerned are, as my hon. Friend the Member for Stone acknowledged fairly, subject to the British veto, require unanimity among all member states and must remain within the confines of the EU's objectives. Nevertheless, because of its enabling nature, the use of article 352 of TFEU has led in the past—quite understandably, I happily concede—to concerns that it can be used to facilitate competence creep. It is an article in whose use the scrutiny Committees in both Houses have taken a great interest, and I am sure that that interest will continue. In responding to my hon. Friends, I will start by saying that the use of article 352 is now subject to much greater constraints than it was prior to the entry into force of the Lisbon treaty. In particular, it must be read in conjunction with declarations 41 and 42, annexed to that treaty. They set out four criteria that govern the application of the article. First, article 352"““cannot serve as a basis for widening the scope of Union powers beyond the general framework created by the provisions of the Treaties as a whole and, in particular, by those that define the tasks and activities of the Union””." It is also important to make the point that a fair number of those policy areas that in the past involved the use of article 352 have now, in the Lisbon treaty, specific treaty bases of their own. That means that in future it will not be possible to bring forward measures on the basis of article 352, because an alternative, defined and specific legal base will exist. Let me illustrate that point to the Committee. Sanctions have been the subject of article 352 measures in the past, but we now have article 215(2) of the Lisbon treaty, which deals with measures to apply sanctions against natural or legal persons and groups of non-state entities. Similarly, articles 212 and 213 of the treaty on the functioning of the European Union make provision for measures of macro-economic assistance to third countries—again a policy area for which, before Lisbon, article 352 was used as the legal base. Secondly, article 352 cannot be used as a basis for the adoption of provisions whose effect would in substance be to amend the treaties without following the procedure that they provide for that purpose. Thirdly, the article cannot be used to harmonise natural laws in cases where the treaties exclude such harmonisation. Fourthly, the article cannot be used to obtain objectives pertaining to the common foreign and security policy.