European Union Bill

Baroness Falkner of Margravine Excerpts

Tuesday 5th April 2011 Lords Chamber

[Lord Liddle]

My Lords, despite the remarks of my noble friend Lord Richard, I think that your Lordships’ Committee has got off to a cracking good start. There was certainly a flavour of a repeat of Second Reading but there were some memorable moments in it. Although in many respects I do not agree with the description given by the noble Lord, Lord Deben, of the Bill as the Conservative version of the Hunting Bill, I think that that is a very accurate political description of the politics that lie behind the Bill. The constitutional outrage of the noble Lord, Lord Goodhart, was well put, and I think that my noble friend Lord Foulkes is right that this is something of a threat to our sea-walled garden, although, at the risk of getting my metaphors mixed up, we need to live in a world of pooled sovereignty in order to protect our sea-walled gardens.

We started with a Shakespearean reference from the noble Lord, Lord Kerr of Kinlochard. He compared his role with that of Bernardo starting the play. If I may say so, I thought that he played the part of a minor character somewhat unconvincingly. Many noble Lords will probably be looking to him as the Committee stage proceeds for wise advice about the meaning of the various amendments before us, just as he has provided very wise advice in his various capacities in the past. Indeed, while we are on the subject of Shakespeare, I thought that my noble friend Lord Kinnock was right to depict the Bill as a move from tragedy to farce.

I turn my attention to the specifics of the amendment. They are, as I think the noble Lord, Lord Hannay, described them, rather abstruse technicalities. However, the core of this debate is whether the use of the so-called simplified revision procedure of the Lisbon treaty, under Article 48(6), should be included in this Bill at all. That is essentially what this group of amendments is about.

The purpose of the article is to give very strictly limited flexibility to member states, acting by unanimity and only by unanimity, to amend the treaty without having to go through the whole paraphernalia of treaty ratification according to their own constitutional provisions. It does not preclude proper parliamentary accountability for these matters for decisions taken under Article 48(6). Heads of Government are clearly accountable to their own national parliaments for any decisions they take in Brussels. In an extreme case, of course, a Government would fall as a result of a motion of confidence if they took a decision with which their parliament violently disagreed.

Therefore, the flexibility does not preclude accountability and under Article 48(6) it is limited. The EU treaties are clear. The Article 48(6) procedure cannot widen EU competence, and many of my noble friends—Lord Tomlinson, Lord Davies and others—have made that point with great force. However, it seems that the Government have drafted the Bill on the contrary premise that somehow or other matters under Article 48(6) can widen competence. The noble Lord, Lord Howell, shakes his head and I look forward to his explanation, but I think that, first, he needs to clear up this confusion. Why is something that under the treaty cannot extend competence regarded as being subject to the balls and chains put around our Ministers in the Bill?

That leads to two further problems with the inclusion of Article 48(6) in the Bill. One is a legal issue and the other is a good faith issue so far as concerns negotiation. On the legal issue, I turned to the Fifteenth Report of the Session of the Commons European Scrutiny Committee on the EU Bill. It took evidence from various legal experts about what this all meant. I think that the noble Lord, Lord Hannay, has already referred to what the Council’s former legal adviser, Jean-Claude Piris, said about it. Perhaps I may quote what the eminent legal expert, Professor Craig, said about the Bill. At paragraph 60, the report says that he,

“drew our attention to the conflict between clause 3 of the Bill, a clause which he described as ‘deeply problematic’, and the Lisbon Treaty. Article 48(6) TEU states expressly that a Decision made there under ‘shall not increase the competences conferred on the Union in the Treaties. Clause 3 of the Bill, by contrast, is predicated on the contrary assumption”.

So it is not just me making this up; this is an eminent legal expert. He goes on to say:

“To be sure Clause 3(3) embodies the exemption condition …This does not, however, alter the force of the point being made here: from the EU’s perspective no Article 48(6) Decision can increase EU competence; from the perspective of the … Bill some such Decisions can do so. This will inevitably lead to legal and political tension between the EU and UK”.

He also goes on to point out that further clauses of the Bill,

“in imposing constitutional requirements where none is foreseen by the Lisbon Treaty, may be in breach of EU law”,

and he sets out why he judges that to be the case. I think that in Committee it is perfectly reasonable for the Opposition to ask what the Government’s view is of this eminent legal advice.

[Baroness Falkner of Margravine]

Does the noble Lord accept that, although competences are defined, powers are not? Paragraph 21 on page 5 of the Explanatory Notes says:

“As the majority of treaties and Article 48(6) decisions will require the exercise of judgement as to whether a transfer of power or competence is involved”.

To me, the confusion between Clauses 1 and 3 arises because of the lack of a definition of “power”, and I wonder whether the noble Lord can comment on that.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, my understanding, and I stress that I am not a lawyer, is that it is the ministerial judgment that is subject to judicial review and not the parliamentary decision. I will clearly have to consult before I come back on Report on the exact meanings at stake, but my understanding is that parliamentary decisions are much more robustly resistant to judicial review.

[Baroness Falkner of Margravine]

I wonder whether I might help my noble friend a little, because the point brought up by the noble Lord, Lord Kerr of Kinlochard, is interesting. Our understanding of this issue is that the Minister would provide a statement setting out his reasons behind why the item under discussion either was or was not of significance, so the possibility of judicial review would therefore apply to the reasoning behind the Minister’s statement. In that case, it would seem that it would not be Parliament’s judgment under question but the Minister’s reasoning, presumably guided by legal advice.