European Union Bill

Baroness Symons of Vernham Dean Excerpts

Tuesday 5th April 2011 Lords Chamber

Moved by

[Baroness Symons of Vernham Dean]

3: Clause 2, page 2, line 13, at end insert—
“( ) Where the treaty is the subject of a challenge in a court of the United Kingdom, it is not to be ratified until the proceedings in court are completed.”

[Baroness Symons of Vernham Dean]

My Lords, in moving Amendment 3 I hope that I shall not stir up quite as many areas of difficulty as we dealt with in the previous marathon debate.

I stress to the Minister who will answer the debate that this is essentially a probing amendment to ask about the role of a Minister of the Crown in dealing with treaty changes in the future, and about the role of Parliament and the way in which judicial review of ministerial decisions will work in practice. Under the Bill, a referendum would be required only if the Government of the day wanted to support a treaty change. That is clear. If the Government are not so minded, they can block the change at the negotiation stage in the European Union. The Government see this as a straightforward mechanism, but I would like to examine it a little further.

The Government contend that if they were not in favour of any treaty change, such a block would be absolute because all types of treaty change that are subject to the referendum provisions would have to be agreed unanimously at EU level. The withholding of agreement on behalf of the United Kingdom would therefore mean that a proposal could not be part of any new treaty or form part of any treaty change. There would therefore be no referendum because there would be no such treaty change. This would apply both to treaty changes and to new treaties.

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[Lord Wallace of Saltaire]

I have no doubt that we will return to this on Report and I will write to noble Lords when I have had exact and subtle legal advice. The ministerial statement will be the beginning of a parliamentary process, which is intended to be a robust part of the consideration of what is and is not significant. On that basis, I hope that the noble Baroness will be willing, for the time being, to withdraw this amendment. I promise that I will write having taken abstruse legal advice.

[Baroness Symons of Vernham Dean]

My Lords, let me put the Minister out of his misery: yes, I will withdraw the amendment but perhaps I might make a couple of points in doing so. It seems to me that the noble Lord, Lord Kerr of Kinlochard, was right in his point that the significance test is likely to trigger the sort of legal review we are talking about. That is far more likely to arise in cases where the Minister has decided not to have a referendum. The point here, at least as I see it, is not whether the Minister’s decision is being questioned by judicial review but that it is the Minister in Parliament. It is not like a Minister taking a decision about exercising his judgment outside Parliament. The point is that it is the Minister in Parliament, supported by Parliament. It is therefore a parliamentary decision which is being challenged by judicial review.

I am bound to say that we are talking about quite big stuff here. This is not just a reinforcing of the current position where ministerial decisions are challenged but the Minister, with the support of Parliament, being challenged through judicial review. If that review goes against Parliament, the outcome is that a referendum would be triggered. Would we really in those cases go as far as asking for Royal Assent to a Bill or a decision which is then to be looked at all over again through a referendum? That is quite a big constitutional point and I am interested in the way that the Minister has put it.

This provision will trigger a multiplicity of challenges. We will be very lucky if we have just one, as we did in the Wheeler case. This is laying something open to judicial review and I would be grateful if the Minister, when he has consulted all those great legal books and superb academic treatises that he has on the subject, would write rather more explicitly. The Minister made some points to the noble Lord, Lord Hannay, and it would be very helpful if we could see them in writing. If we need to go over this ground again on Report, we must obviously do so but it may be that the Minister will be able, when he has had the opportunity to consider it, to meet some of the points that we have discussed. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Moved by

[Baroness Symons of Vernham Dean]

4: Clause 2, page 2, leave out lines 18 and 19 and insert—
“(i) throughout the United Kingdom if the treaty affects the United Kingdom;(ii) throughout Gibraltar, where the treaty affects Gibraltar; (iii) where the treaty affects one or more British overseas territory, throughout the affected territories;(iv) where the treaty affects the Crown dependencies, throughout those Crown dependencies; or(v) where the treaty relates to financial regulation, those jurisdictions in sub-paragraphs (i) to (iv) which will be bound by the rules in the treaty or decisions made under the treaty;”

[Baroness Symons of Vernham Dean]

My Lords, the Minister may or may not be relieved to hear that this is another probing amendment—or, rather, two, in Amendments 4 and 12. Obviously, the same point is made in both and although the amendments may appear long it is really a simple point. I am sure that we all understand our close relationships and our responsibilities to and for our overseas territories. We also understand that Gibraltar alone, of all our territories, is part of Europe and is affected by European treaties or changes to them. Yet the Bill states that where a treaty change affects Gibraltar, it would have to be the subject of a referendum not only in Gibraltar but in the United Kingdom. Can the Minister please be a tad more specific about this?

In almost every case, a treaty change which affects Gibraltar might well affect the United Kingdom too, so holding a referendum in this country and in Gibraltar would be understandable if you buy the basic premise of the Bill. But if, as in some circumstances, a treaty change were to affect Gibraltar alone and not the rest of the United Kingdom, would a referendum in the whole of the United Kingdom really be necessary? There were two ways of reading that, so I am raising a genuine question with the Minister. I fully accept that the eventuality is remote but it needs some clarification.

Similarly, what if a treaty change at some point in the future laid specific responsibilities on members of the European Union to change the law in their overseas territories? While I accept that we do not all have the same relationship with our overseas territories—the complexities of l’outre-mer in the French relationships were fully explained to me when I was a Minister, but they may not be as clear to me now as they were at the time—let us say that there was a change in a treaty or a treaty provision in relation to, let us say, money laundering or gay rights, both of which have been the subject of considerable controversy in some of our own overseas territories. Does not the logic of the Government's position mean that, in all fairness, it would be proper to hold referendums in those territories so that they would have the same rights as the citizens of Gibraltar automatically have on treaty changes which affect them? I stress that this is a genuinely probing amendment and I would be grateful for any clarification that the Minister can give us.

[Lord Wallace of Saltaire]

My Lords, I am extremely glad that the noble Lord, Lord McNally, has just joined me on the Bench as he is the Minister responsible for relationships with the Crown Dependencies. I would simply query the noble Baroness’s opening statement: that I am sure we all understand the nature of the relationship with the Crown Dependencies and the overseas territories. I have dug out the last definitive statement on our relationship with the Crown Dependencies. It was the Kilbrandon commission, on which I suspect one or two noble Lords—

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[Lord Wallace of Saltaire]

My Lords, I offer to get the sharpest minds in the Government to look at this again and see if there is a real problem. This is a worthwhile probing amendment. I might perhaps mention that the coalition Government are committed to looking at the issues of tax avoidance, in which these various Crown dependencies and associated entities like Monaco and Andorra—particularly Monaco, the constitutional relationship of which with France is at least as cloudy as that between the Crown dependencies and the United Kingdom—will come into play. It may well be that others in this House would like to pursue some of those questions further, perhaps through a committee inquiry, but, I suggest, not as part of this Bill. With regard to this Bill, Protocol 3 to the European Communities Act 1972 sorts out who is in and who is out.

[Baroness Symons of Vernham Dean]

My Lords, I thank the Minister. The thought of him as a French spy is vastly entertaining; I had never thought of him in quite that sense. It has cast a whole new light on his part-time activities. I was not entirely clear from what he said—I will have to read his remarks in Hansard—about the differences that he was drawing between Crown dependencies on the one hand and overseas territories on the other, but we can look at that.

There is a specific point about Gibraltar. I fully concede the point made by the noble Lord, Lord Hannay, that it is a very remote possibility, but an issue that comes up again and again is self-determination for dependencies and overseas territories. The issue regarding Gibraltar is that it would not be able to exercise self-determination in the way that other overseas territories do because of the treaty of Utrecht. In my day, if you moved away from that treaty for a single moment you were in deep trouble. I make the point because it means that Gibraltar is in a rather special position; it is not just that it is part of the European Union. Of course, one might say that the Spanish would be bound by the same issues.

The point is not for us to think of every possibility, racking my brains as I am so to do. The point is to have legislation that is as clear as possible. We should make this clause clear so that we are not left with someone trying to think up some clever eventuality where we might have a real difficulty on our hands; rather, we should forestall such difficulties by having greater clarity. It is an absurdity to think that an issue that affected only Gibraltar could be the subject of a referendum in Darlington, Dagenham and Dorking. That really would be a silly position for us to be in. I hope that the Minister will kindly give this a little more thought so that when we return to this issue at a later stage we might be able to have a greater meeting of minds.

[Lord Wallace of Saltaire]

My Lords, I apologise that I had not cited the treaty of Utrecht. The noble Baroness will of course be familiar with the grant of 1204 by the King of England as the Duke of Normandy, which is the basis for the Channel Islands’ relationship with the United Kingdom—a document that appears to have been lost some time in the later 13th century and no one knows exactly what it said. That is part of the oddity of the situation. Having had an interesting excursion into some of the byways of the outer shores of the British constitution, though, I hope that the noble Baroness will be willing to withdraw her amendment.

[Baroness Symons of Vernham Dean]

My Lords, I will do so and I hope for further clarification on these points. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.