European Union Bill

Chris Heaton-Harris Excerpts

Wednesday 26th January 2011 Commons Chamber

[Chris Heaton-Harris (Daventry) (Con)]

I beg to move amendment 24, page 6, line 7, at end insert—

‘(e) a decision under Article 218(8) of TFEU for the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms in accordance with Article 6(2) of TEU.’.

[The Second Deputy Chairman of Ways and Means (Dawn Primarolo)]

With this it will be convenient to discuss the following:

Amendment 45, page 6, line 25, at end insert—

‘(da) a decision implemented through the solidarity clause under Article 222 that obliges the United Kingdom to provide assistance to another Member State which is the object of a terrorist attack or the victim of a natural or man-made disaster.’.

Amendment 25, in clause 10, page 8, line 34, leave out subsection (2).

[Chris Heaton-Harris]

It is a pleasure to come back for a third day of excitement this week, talking about Europe. I thought that when I left the European Parliament, I might be able to ditch that part of my life and move on to something interesting. It seems to wear one down, like a terrible weight around one’s neck.

I want to see whether I can tidy up a few parts of the Bill which, I believe, could be helped. Currently the European Union is not party to the European convention for the protection of human rights and fundamental freedoms, the ECHR. The Lisbon treaty, however, introduced what is now article 6(2) of the treaty on the European Union, which provides that the EU will accede to the ECHR. This accession agreement—in effect a treaty between the EU and the states party to the ECHR—is being negotiated.

Article 218(8) of the treaty on the functioning of the European Union provides that once negotiated, the accession agreement must be concluded, for the EU’s part, by unanimity in the Council. The same article states that after adoption by the Council, the EU decision concluding the agreement must also be

“approved by the Member States in accordance with their respective constitutional requirements”

before it can come into force.

Under current UK law, this approval may require an Act of Parliament. Clause 10, however, where this matter currently resides, requires only a resolution of approval in each House. Indeed, the definition of parliamentary approval in clause 10(3) does not seem well suited to the approval of a decision adopted by the Council under article 218(8), because the resolution of approval specified concerns approval of a draft decision.

Until the article 218(8) TFEU conclusion has come into force, the EU cannot accede to the ECHR. This is a complicated treaty between the EU and the ECHR and warrants a great deal of scrutiny. It will have a number of indirect effects on the United Kingdom.

[Andrew Percy (Brigg and Goole) (Con)]

I, too, wish we could be free of the European Union, but that is a debate for another day. Does my hon. Friend agree that, given where we are on prisoners’ voting rights, as well as the growth of rights under the ECHR and the controversy surrounding that, we need to ensure maximum parliamentary scrutiny of decisions such as the one that he is describing?

[Chris Heaton-Harris]

Indeed. I know that there is to be a Backbench Business Committee debate on the matter in the not-too-distant future, in which I hope that Members across the House can voice their concerns about that ruling.

I return to the proposal to move one part of the Bill from clause 10 to clause 7. I was speaking about the indirect effects on the United Kingdom that the accession of the EU to the EHCR might have. When the accession takes place, the EU will be able to be taken to the European Court of Human Rights, which will undoubtedly lead to more cases, more cost and impact and, most importantly, more jurisprudence on EU law.

I am seeking not to upgrade the requirement for scrutiny, but to maintain the present level. Furthermore, I am concerned that in clauses 6 and 7, a few article 48(7) ratchet decisions are not caught by the Bill. Such decisions would be those applying to the EU’s ordinary legislative procedure where the EU treaties currently require a special legislative procedure, and the existing special legislative procedure does not require unanimity in the Council. In other words, while a switch in EU legislative procedure would be taking place, it would not involve abolition of a veto because a veto did not exist in the first place. However, the EU’s ordinary legislative procedure entails the European Parliament having co-decision rights with the Council. It can table amendments to a proposed law and veto the Council’s desired law. In general, a switch to the ordinary legislative procedure would take EU decision making further out of the hands of national Governments and give greater power to a supranational institution.

The article 48(7) ratchet clauses not covered by the Bill would confer new co-decision rights on the European Parliament in a few areas of EU law that I shall list now, and many more. Article 23 provides that every EU citizen has the right to diplomatic protection. We had a debate on what that might mean to the individual. I am speaking now about our power to scrutinise such decisions. Article 182(4) allows the Council to adopt, through qualified majority voting, but only after consultation of the European Parliament, specific EU research and development programmes. These must accord with the multi-year EU framework programme for research and development that is decided through the ordinary legislative procedure, but the decision on specific programmes sets their duration, the precise financial contribution by the EU—essentially by us—and the detailed rules for implementation. Furthermore, article 349 provides that the Council can adopt legislative measures on how EU treaties apply to areas known in wonderful EU parlance as the outermost regions. The way in which such specific decisions are dealt with in the Bill would be a retrograde step for democratic control, hence my amendment.

[Mr William Cash (Stone) (Con)]

I rise to support my hon. Friend the Member for Daventry (Chris Heaton-Harris) in the arguments that he has adduced. Since the Maastricht treaty, I have been gravely concerned about the operation of co-decision, and that is the best part of 20 years ago. The bottom line is that the situation has become increasingly difficult and unacceptable. The European Parliament, which is not a real Parliament at all—I see the Minister sighing. He cannot understand that the difference in the manner in which the European Parliament is elected, the difference in its procedures, the extent to which it holds Ministers to account, the intrusion of the process of proportional representation and the manner in which that operates, and many other aspects of the institutional difficulties and the democratic deficit that exists in the EU, are all part and parcel of the necessity to retain control in the hands of the national Parliaments. Unfortunately, for all the reasons given by my hon. Friend, for these specific matters there is an extension of this strange creature which used to be called co-decision, but which now, in typical Eurospeak, has become the ordinary legislative procedure. It is not ordinary at all, it is quite extraordinary, and it is not a legislative procedure in the sense in which we are legislating in this House.

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[Mr Lidington]

I look forward with relish to studying the European Scrutiny Committee’s conclusions.

There are already a number of ways for the Government and Parliament to exercise control over the precise terms of the EU’s accession agreement. Article 218(8) of the TFEU makes it clear that accession would be subject to unanimous agreement by the Council and that the Council’s decisions to conclude the agreement cannot enter into force until it has been approved by all member states individually and in accordance with their respective constitutional requirements, which are entirely a matter for each member state.

In addition, all EU member states are also parties to the European convention on human rights in their own right and will also be parties to the accession instrument. As with any other treaty to which the UK is party, the final accession agreement will be subject to the procedures under part 2 of the Constitutional Reform and Governance Act 2010—the codification of the Ponsonby procedures. That requires the agreement to be laid before Parliament for 21 sitting days, during which time either House may resolve that it should not be ratified. On top of those two levels of control, clause 10 of the Bill will add an additional layer of accountability by requiring a positive vote in favour of the agreement in each House before the UK could approve the EU’s decision to conclude such an agreement.

[Chris Heaton-Harris]

I do not want at all to talk about the detail of the European convention on human rights, but I make the point that we will probably need an Act of Parliament, or a resolution as it stands. I do not intend to press the amendment, but I wanted to ensure that the Minister completely understood my reasons for tabling and for wanting appropriate scrutiny of the points that it raises.

[Mr Lidington]

I completely understand my hon. Friend’s motives, and if I may say so without bringing him into complete disrepute with a number of other hon. Members on the Back Benches, he has played an extremely active and constructive part in our debates in Committee and has adeptly and correctly spotted some loopholes in the Bill that have led the Government to bring forward amendments to respond to the them.

Given that a number of control mechanisms already exist, that the accession agreement does no more than spell out the detail of something already provided for in the treaties and, most importantly, that there is no practical effect of EU accession to the ECHR on the position of member states, there is no necessity for the additional requirement of an Act of Parliament. I therefore welcome my hon. Friend’s intervention and hope that he will not press the amendment to a vote.

[Chris Heaton-Harris]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

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[Mr Cash]

I shall discuss my earlier point about EU accession to the ECHR in the context of the broad view that you, Mr Caton, have taken about the necessity to get some of these issues out in the open. I shall also refer to the document that I cited in my intervention on the Minister, because we discussed it in the European Scrutiny Committee today. The document is a Council decision, the object of which is to authorise the European Commission to start negotiations with the Council of Europe on the EU’s accession to the European convention on human rights. Our Committee reached the stage of a first report.

[Chris Heaton-Harris]

I very much apologise for not being at the European Scrutiny Committee meeting, but I was getting ready for this session. Government Members are giving the Bill the appropriate amount of scrutiny, but, looking at the Opposition Benches, I wonder whether anybody on that side cares.

[Mr Cash]

I could not agree more. My hon. Friend is right, and I am glad that the Minister also nods in agreement, because the accession is hugely important. I understand entirely that the Minister has a view about it. He has also heard the very good arguments that my hon. Friend the Member for Daventry (Chris Heaton-Harris) has made on the specific questions that arise. The Minister knows that it is a contentious issue, not least because we are also dealing with the interaction of the European convention on human rights, which came up in the statement on terrorism only an hour or so ago in this very House, and the crucial balance between security and freedom. We do not need to discuss control orders and counter-terrorism now, but I simply make the point that an enormous body of law could be affected by this.

The shadow Minister for Europe, the hon. Member for Caerphilly (Mr David), is attentive, was a member of the European Scrutiny Committee and is taking an interest in the debate. Of course, he has to be here, but I think that he would be here anyway. I find it strange that the Chamber is almost completely empty when we are considering these incredibly important issues, and it would be interesting to know whether there is any reason why. I am glad to welcome my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), who also has great knowledge of these matters. I hope that he will contribute to the debate, because we have just discussed this point in the European Scrutiny Committee, so it is an opportune moment for us to look at the principles involved.

The Government support accession by the EU to the ECHR, as the Minister indicates. I am sorry that we got a little tetchy, but he gave me the impression that he wanted to move on from the subject fairly quickly, and I understand the necessity to move on to later amendments. Our entire proceedings, despite some considerable reservations on the one hand and downright hostility on the other, have been conducted in a civilised manner and in accordance with what I hope debates in this House should consist of, but we need to take a good look at what the provision implies, and this clause stand part debate gives us the opportunity to do so.

According to the Secretary of State for Justice and Lord Chancellor, accession will close the gap in human rights protection as applicants will for the first time be able to bring a complaint before the European Court of Human Rights directly against the European Union and its institutions for alleged violations of ECHR rights. It will enable the European Union to defend itself directly before the European Court of Human Rights in matters where EU law or actions of the EU have been impugned.

The Secretary of State also says that accession will reduce the risk of divergence and ensure consistency between human rights case law between the European Court of Human Rights and the EU’s Court of Justice in Luxembourg. That is very important. Furthermore, he says that the EU will be bound by European Court of Human Rights judgments in cases in which it is a respondent, and like other contracting parties to the ECHR the EU will need to have regard to the Strasbourg jurisprudence.

I have heard the Secretary of State for Justice express views, albeit in other circumstances, in which he has raised concerns about the extent to which the judiciary is impinging on the sovereignty of this House, and I take him at his word. If he believes that, he might also consider that the EU will have to have regard to Strasbourg jurisdiction. Sovereignty, which we have debated at some length in relation to clause 18, is directly involved in that issue.

I do not need to repeat any arguments that I set out in relation to clause 18, and I have no intention of doing so, but the principle is about the use of jurisprudence from Strasbourg or the European Union Court, the European Court of Justice, and its effect on the legislative process in this House. There is also a constitutional question for the United Kingdom about the manner in which our judiciary is using Strasbourg precedents and importing them to their judgments in our courts. The Lord Chief Justice recently criticised that, because he is worried about the impact of accession on the manner in which we make our decisions and the invasion of common law precedent.

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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.

[Chris Heaton-Harris]

I will be brief, Mr Evans. I had quite a decent speech written on these amendments, but I want to move on to the meat of the justice and home affairs matters that we will discuss shortly. With regard to clause 8, the Bill is a definite improvement on the current situation, and I am pleased that the presumption is that an Act is required. My concern is about the get-out clause, in clause 8, that my hon. Friend the Member for Stone (Mr Cash) has just mentioned, according to which the Minister can table a statement that certain matters are exempt.

Amendment 26 is not a blanket amendment that would require everything to have an Act, as would my hon. Friend’s amendment, because I understand that some things might need a lesser level of scrutiny in this place, but I am concerned about proposals that would prolong the existing flexibility clause or extend it to another country. Those are the two areas that should be approved by an Act. I am happy to see other areas approved by resolution in each House. The example that my hon. Friend might have been searching for is that relating to balance of payments loaned to non-eurozone member states in 2002 that came through such a flexibility clause, similar to the article 122 measures that we have just seen. That is the explanation for my amendment, and I will be interested to hear the Minister’s response.

[Mr Lidington]

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.

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[The First Deputy Chairman of Ways and Means (Mr Nigel Evans)]

Order. I remind the Committee that there will be no separate clause 9 stand part debate. If anyone wishes to make any comments relevant to that, now is the time to do so.

[Chris Heaton-Harris]

I shall speak mainly to the amendments I have tabled, talk about the general opt-ins and ask a couple of questions about the written ministerial statement that was issued last Thursday, particularly on how aspects of it might work in the future. I always have questions about the who and when of decision taking.

My amendment 27 deals with something that is missing from the Bill—the body known as Eurojust. Eurojust is not the European public prosecutor, but it represents a massive step towards a European public prosecutor. Under article 85 of TFEU, its remit falls under ordinary legislative procedure, so a proposal comes from the Commission, qualified majority voting applies in the Council and co-decision applies within the European Parliament. It already has a huge amount of power—or it will have, when it is set up.

In April 2010, the European Commission published a document delivering

“an area of freedom, security and justice for Europe’s citizens”,

which was an action plan implementing the Stockholm programme. The Stockholm programme is the five-year European Union plan for justice and home affairs measures, which was adopted by the European Council in December 2009. On page 18 of the document, the European Commission states that in 2012, it will make a proposal for an EU regulation

“giving Eurojust powers to directly initiate investigations.”

Even if the current Government do not opt into the proposal, there is nothing in the Bill to require them to seek Parliament’s or the people’s approval to opt in once the regulation is adopted, allowing Eurojust to initiate investigations in the UK, for example. This is a massive step towards the European public prosecutor. I hope the Minister will reassure me that he will address that point at some stage, if not today.

It may be useful if I provide some examples of significant justice and home affairs matters that the last Government opted into. I could have picked any issue in that category, but I chose the issue of asylum because I know that it always gets the blood flowing.

Among other things, directive 2004/83-EC

“on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted”

sets out the rights enjoyed by those who have been granted refugee status. Some of them go beyond the rights approved for the 1951 Geneva convention on refugees, such as those relating to access to the employment market and social security.

Directive 2003/9/EC,

“laying down minimum standards for the reception of asylum seekers”,

includes provisions on the rights of asylum seekers to access the jobs market in certain circumstances, and on the accommodation that must be offered to them. Directive 2005/85/EC

“on minimum standards on procedures in Member States for the granting and withdrawing of refugee status”

lays down various restrictions and requirements regarding the procedures that member states can follow in processing asylum claims and withdrawing refugee status. They include specific requirements for the possibility of legal challenge by asylum seekers to various decisions taken as part of the process.

Those pieces of legislation were part of the first wave of the construction of the common European asylum system that was first called for in the Tampere European Council of October 1999. The Commission has been pressing on with further legislation to build that common system since then, and over the past two years it has presented three proposals for directives to replace those that I have cited. The general thrust of the proposals is a desire to further “harmonise” asylum policy and processes across the EU and, as a consequence, to limit national discretion yet further. As it happens, the last Government decided not to opt into those later proposals; but what would happen if this Government, or a future Government, chose to opt into them? It is realistic to assume that, under the Bill, Parliament would have no legal control.

I agree with my hon. Friend the Member for Hertsmere (Mr Clappison) that the Bill constitutes a step forward in one respect, and I congratulate the Minister on advancing so far. The written ministerial statement on justice and home affairs scrutiny laid before the House last Thursday contains a great deal of common sense, but I think that there is a need for further discussion of the consequences that will flow from it with the European Scrutiny Committee and other interested parliamentarians. Let me quote the key passage. It states that

“in circumstances where there is particularly strong parliamentary interest in the Government's decision on whether or not to opt in to such a measure, the Government express their willingness to set aside Government time for a debate in both Houses on the basis of a motion on the Government's recommended approach on the opt-in. The precise details of these arrangements to allow such debates and the circumstances in which Government time would be set aside will be the subject of further consultation with the European Scrutiny Committees, business managers”

—otherwise known as the wonderful Whips who are so kind and gentle to us all in this place—

“and the Commons and Lords Home Affairs and Justice Select Committees. These discussions will also need to determine how arrangements would operate during periods of parliamentary recess and dissolution of Parliament.”

That is all pretty good.

“However, the Government believe that as a general rule, it would be appropriate to do so in circumstances where they propose to opt in to a measure which would have a substantial impact on the United Kingdom's criminal or civil law, our national security, civil liberties or immigration policy. The Government will also put in place analogous arrangements for parliamentary scrutiny of decisions to opt-out of measures under the Schengen protocol.”—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]

The written ministerial statement raises a number of questions. I shall talk about a couple of them now, but I would like to think that discussions can be ongoing and we can flesh out the detail. What would constitute “particularly strong parliamentary interest”? How, therefore, is a debate in Government time triggered? Would it be triggered by a referral by the European Scrutiny Committee? That could be complemented by an additional right whereby a certain number of MPs could trigger such a debate. Does the commitment to a debate and vote cover the opt-in to a justice and home affairs law already adopted by the other member states? The written ministerial statement seemed to indicate otherwise. Similarly, does the commitment cover the opt-in to new aspects of the existing Schengen acquis, such as common visa rules, where this opt-in is not covered by clause 6 of the Bill? Would it cover the opt-in to a pre-Lisbon police and criminal justice law that has ceased to apply to the UK because it exercised the bloc opt-out before June 2014? If it does cover that, how would Parliament be made aware that such an opt-in was being considered by the Government, given that this could happen at any time?

[Ms Gisela Stuart]

I hope that the hon. Gentleman will tell me if I say something that is incorrect, because I have not had sight of that written ministerial statement. We know that whenever we negotiate an opt-out in Brussels we spend political capital so, by definition, anything that we negotiate to opt out of is significant and an opt-in is a significant step. So any opt-in ought to be debated in Parliament and subject to a substantive vote because it must have been so important that we expended political capital securing it.

[Chris Heaton-Harris]

I tend to agree with the hon. Lady. When she reads the written ministerial statement, she will see that it represents a huge step forward in our scrutiny of these things in this place and she may see what measures the Government might want to opt into. I wished to raise this question of the opt-in now, because I think that the Bill is a step forward, as is this clause.

[Martin Horwood]

I was interested by the intervention made by the hon. Member for Birmingham, Edgbaston (Ms Stuart). She has great knowledge of European matters, but she may be wrong about this. Not everything that we are talking about opting into based on these passerelles has been positively opted out of before. We are talking about new ways of working within the competences already set out in those passerelles.

[Chris Heaton-Harris]

That is possibly the case. I do not wish to give a definite answer, because I am not the expert on this matter and I was just raising it for the Committee in general debate. I am not sure that what the hon. Gentleman describes is the case, but I would hate to say that he is wrong because, as my hon. Friend the Member for Hertsmere said, although we might have different views, the factual statements that the hon. Member for Cheltenham (Martin Horwood) has made have invariably been correct.

[Mr Clappison]

The opt-in arrangements are found in the “Protocol on the position of the UK and Ireland in respect of the area of freedom, security and justice”. This is in the Lisbon treaty itself and as far as those matters are concerned we have to opt in.

[Chris Heaton-Harris]

I am looking forward to the Minister clarifying that for us all. I was discussing the questions about the written ministerial statement where we need things fleshed out. This Government commitment does not require the Government to come before Parliament to get approval for each of their decisions to opt in, which is what the amendments would entail. Although the current Government might give this commitment, it may not apply in the future, whereas a requirement in statute, rather than something in a written ministerial statement, would be expected to withstand the passage of time much better. There are a number of omissions from the written ministerial statement. It does not deal with the timing of the process and whether new proposals are acted on in a different way, and the arrangements for opting into things that have already been adopted by our EU partners causes me concern, because I am not sure whether this process catches that.

Those are all matters of conjecture and question, and they are ways in which we can altogether improve the scrutiny of justice and home affairs opt-ins in the future. I see the hon. Member for Caerphilly (Mr David) nodding his head in agreement and I believe there is massive cross-party and cross-Parliament interest in getting this process right for the future. I do not see the issue as politically contentious.

I note the massive steps forward that have been made with this Bill and in the written ministerial statement, so I shall not press my amendments to a vote either. I thank the Minister for coming so far so fast and look forward to working with him on this matter in the future.

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[Mr Cash]

Yes, and civil. Let us not get carried away by a few bits of paper and a few words in a Bill. They say that there will be restraint by way of approvals given by the House, but we know the realities. In relation to the opt-in on the investigative order—I think it was on 15 June, shortly after the general election—it can fairly be said that the Minister believed that she had to make that decision because, I think I am right in saying, there was a three-month period within which the decision had to be made. Perhaps there was some justification for the fact that she had to make the decision, but why did she make the decision to opt in? Why did she not make the decision not to opt in? That is my concern.

I plead with hon. Members not to be taken in by the effusions of reservation that emerge in letters, statements and the Bill. Right at the heart of this is the real question of whether we will end up with more Europeanisation of these matters, and the answer, emphatically, is yes.

[Chris Heaton-Harris]

I am sure that my hon. Friend is aware of the findings of the German federal constitutional court, which protects these matters for that country. In one judgment it said:

“Securing legal peace by the administration of criminal law has always been a central duty of state authority…To what extent and in what areas a polity uses exactly the means of criminal law as an instrument of social control is a fundamental decision. By criminal law, a legal community gives itself a code of conduct that is anchored in its values, whose violation is, according to the shared convictions on law, regarded as so grievous and unacceptable for social existence in the community that it requires punishment.”

It is desperately trying to protects its laws as well.

[Mr Cash]

I am so glad to hear that. I was not precisely aware of that part of the judgment, but my hon. Friend has made an important and helpful comment. The argument is right, and it is by dint of the most awful experience in Germany that it has come to these conclusions over an extended period since 1945. It is vigilant about these matters because it does not want ever again to find itself in circumstances, by virtue of a lack of democracy, when Hitler ran Germany. I have an absolute belief in the democratic instincts and principles of the British people, which have been born out of fighting not only that very Germany, but previous wars, right the way back to at least the 17th century. We have built up a democratic system in which we decide what the legislation should be, and we give it careful consideration. We need some parliamentary reform. We are being given the impression that in relation to these matters we will be able to retain our criminal system, but unfortunately, because of the Whip system and the whole direction of Europeanisation, that will be removed by what will happen in practice. As helpful as all these procedures are in indicating the direction in which they might like to go in certain circumstances, I fear that we will have many opt-ins and that, in practice, the proposed procedures will be applied and the Whips will ensure that the measures go through.

I will give the European investigation order as an example. It is still subject to European scrutiny and there will be a debate on it—I cannot remember when—despite the fact that it was decided on 15 June last year. That is because the European Scrutiny Committee had not been set up by that time, but the rules still applied to that order. There will be a debate on that matter, but when it is debated, which in effect is the same kind of thing that the Minister refers to about parliamentary approval, up to a point, there will no doubt be a take-note motion—I cannot remember the precise motion— before the European Committee. The reality is that not once in the 26 years I have watched these matters has a decision of a European Committee not to take note, following a vote that went against a Minister, not been reversed on the Floor of the House by the use of the Whips. Why should I be confident that—

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[Mr Lidington]

The decision on whether to exercise the bloc opt-out is important and sensitive for the United Kingdom. On that point at least, I agree with my hon. Friend the Member for Harwich and North Essex (Mr Jenkin). Its implications for the whole range of complex, technical and often interrelated measures will need to be carefully considered, and they ought to be carefully considered by Government and Parliament. I agree completely that Parliament should give its view on a decision of such national importance. That is why the Government have committed publicly to having a vote in both Houses before making a formal decision on whether we wish to opt in or out.

As outlined in my written statement on 20 January, we will

“conduct further consultations on the arrangements for this vote, in particular with the European Scrutiny Committees, and the Commons and Lords Home Affairs and Justice Select Committees”.—[Official Report, 20 January 2011; Vol. 521, c. 51WS.]

The 2014 decision, however, concerns measures that the UK agreed pre-Lisbon, and in most cases they have already been transposed into United Kingdom law and implemented.

I shall respond briefly to a couple of points that my hon. Friend has raised. Civil justice measures are already subject to European Court of Justice jurisdiction—and were so prior to the Lisbon treaty. The measures falling within the scope of the 2014 decision on criminal justice were not subject to section 2(2) of the European Communities Act 1972 before the Lisbon treaty; the majority of those items of legislation, which are in force in this country, required their own separate Acts of Parliament in order to be implemented, including the Extradition Act 2003, which implemented the European arrest warrant, and about which hon. Members on both sides of the House have many concerns.

If the UK were to decide to remain in the pillar three measures, no new transfer of power or competence would therefore be associated with that decision: it would be neither a treaty change nor a ratchet clause. The decision for 2014 is therefore different in kind from the decisions that we propose, in the Bill, to subject to either a referendum or a primary legislative lock.

Until the Government have decided what to propose on the bloc opt-out, it is difficult to reach any decisions about what to do on subsequent opt-ins, but such decisions seem to have similarities with the decisions on post-adoption opt-ins to new pieces of JHA legislation, with the important difference that this country will already have participated in the measures in question.

The Government will pay all proper attention to the need for parliamentary scrutiny of any such opt-in decision, should that prove to be necessary and should the Government wish to opt back into selected measures; but, just as the arrangements for enhanced parliamentary scrutiny of current JHA opt-ins are a matter to be agreed outside the confines of the Bill, so too are decisions on the parliamentary scrutiny of those other decisions.

In light of the Government’s commitments to more powerful and enhanced parliamentary scrutiny, and because of the nature of the decisions that we will face by 2014, we do not think that the matters in question should be covered by the Bill. I therefore urge my hon. Friends not to press their amendments to the vote.

[Chris Heaton-Harris]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 82,  page 8, line 16, at end add—

‘(6A) A Minister of the Crown may not make a formal decision as to whether to exercise the right of the United Kingdom to make a notification to the Council under the terms of article 10(4) of the Protocol (No 36) on Transitional Provisions annexed to TEU and TFEU, unless—

(a) the decision is approved by Act of Parliament, and

(b) the referendum condition is met.

(6B) The referendum condition is that set out in section 3(2).’.—(Mr Jenkin.)

Question put, That the amendment be made.