European Union Bill

David Lidington Excerpts

Wednesday 26th January 2011 Commons Chamber

[The Minister for Europe (Mr David Lidington)]

Amendments 24 and 25 would require that before the EU can accede to the European convention on human rights, Parliament would need to approve the EU’s accession by Act of Parliament. At present, the EU and its institutions cannot be held to account for the fulfilment of its existing international legal obligations by the ECHR in the same way as the EU member states all can. Accession by the EU to the convention would close this gap.

EU accession to the ECHR is, as I think my hon. Friend the Member for Daventry (Chris Heaton-Harris) acknowledged, already expressly provided for in the EU treaties, as amended by the treaty of Lisbon. Article 6(2) of the treaty on the EU provides that

“the Union shall accede to the ECHR”.

[Mr James Clappison (Hertsmere) (Con)]

I am sure that in his usual persuasive way my right hon. Friend will give us a very good account of the legal case for the EU acceding to the ECHR. I hope that as he does so he will dispel the suspicion that is forming in many people’s minds that the real reason, never mind the complicated legal rationale that he has given, is to put the EU on the same footing as the other signatories to the convention, which are all member states, and to give the EU the character of a member state. It is only member states that have acceded to the ECHR, and all the members of the EU have done so. I am sure that my right hon. Friend will give us a very thorough explanation, which will also serve to dispel that suspicion that is forming in many people’s minds.

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[Mr Lidington]

Certainly I agree that it is important to keep in our minds the distinction between the member states and the EU as an entity. It is therefore important that the treaties set out plainly that accession to the convention would not affect the EU’s competences in any way, and that any extension or enlargement of EU competence would therefore have to be obtained by the normal process of treaty amendment, which is subject to the various checks that we are laying out in this legislation. Under protocol 8 to the treaties, it is also made clear that the Union’s accession to the ECHR will in no way affect the situation of the individual member states as parties to that convention. So the accession by the EU to the convention cannot give further powers or competences to the EU; nor will it affect member states’ own standing with respect to the ECHR.

In dealing with Council of Europe matters, the Government are always on the alert to avoid creating either the impression or the reality that EU member states, which are all individually parties to the ECHR, are acting as a bloc. The situation is unusual, because the Council of Europe is an institution in which EU member states have a majority over other state parties. Therefore, it is important that that distinction of principle to which my hon. Friend alluded is maintained.

[Mr Clappison]

May I say—I hope the Minister will appreciate this—that he has been extremely assiduous in attending to Council of Europe matters and exemplary in discharging his ministerial responsibility in respect of them? He made an extremely important point about the Council of Europe, which is that it includes many other nations that are not EU member states. It is a good thing for countries that are members of the Council of Europe to be dealt with individually, including those that also happen to be EU member states, so as not to create in any sense the impression that there is an EU bloc, because that has a bad impact on human rights in Europe, extending more widely than just the EU.

[Mr Lidington]

I agree. Quite apart from any constitutional or legal significance, it would be politically and diplomatically counter-productive to go down the route that my hon. Friend has rightly warned against. Whether the UK as state party should continue to have the relationship with the European convention on human rights that we currently have is a matter of intense in the debate in the House, and Members on both sides of the Committee have their views on that.

The point for the purposes of this afternoon’s considerations is that the accession of the EU to the ECHR would make no practical difference to the UK’s position. The Government see some advantages in EU accession, because the European Court of Human Rights in Strasbourg could act as a direct check on how EU institutions exercise their powers, in exactly the same way it acts as a check on the actions of all other signatories to the convention. I know that some of my hon. Friends will say that they believe that the European Court of Human Rights should not have that type of authority over this country, but I say to them that it is my belief that the EU and its institutions should be held to the same standards on human rights as we expect of member states.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I thank the Minister for giving way and for his patient responses to so many questions. I wonder whether it is necessary for the EU to sign up to the ECHR, because we have already debated the question of how EU law comes into effect in this country, which is by Act of Parliament. Therefore, any decision made by the EU can come into effect here only under our own laws, which are of course already justiciable under the European Court of Human Rights. This is not so much an added safeguard as a symbolic step towards creating the European Union as a state.

[Mr Lidington]

We certainly need to guard against that. The Government have accepted, as did the Conservative party before the general election, that the ratification of the Lisbon treaty is a political and legal reality and that we will work within that context. The treaty states that the EU shall accede to the ECHR, and it also provides that the judgments of the European Court of Human Rights should be considered, once accession has taken place, as general principles of EU law. In those circumstances, one would expect that those in the Commission who are responsible for drafting European directives and other legislative initiatives would have regard to the judgments of the Court and would frame draft European legislation in order to meet the standards of that jurisprudence.

[Jacob Rees-Mogg]

Will the Minister clarify Her Majesty’s Government’s view of the Lisbon treaty, because it seems to me that they are in quite a strong position to say that things that have not already been done, which are subject to unanimity before they can be implemented, need not be implemented by the Government?

[Mr Lidington]

There is a clear statement on the face of the treaty that the EU shall accede to the European convention on human rights, and the Government’s position is that we accepted that statement and that commitment as part of the Lisbon treaty. As I hope to explain shortly, the law and our procedures in this House provide a number of safeguards that, I believe, will enable the House of Commons and the other place to scrutinise in detail any proposal for accession when it comes forward.

[Mr Cash]

Will the Minister give way?

[Mr Lidington]

I will give way, but a large group of amendments is listed on the Order Paper for consideration later today, and those amendments stand in the names of many hon. and right hon. Members. I want to try to limit my comments on the early group so that we have time for a thorough debate on those amendments on justice and home affairs, which I think the Committee would expect.

[Mr Cash]

I have already been helpful to the Minister in limiting my earlier remarks. Having said that, I would point out to him that this afternoon the European Scrutiny Committee has considered the document, “EU Accession to the European Convention on Human Rights”, and set out in full, for the purposes of ensuring that the House is properly informed about what all the arguments amount to, both the questions and answers that he has given to that Committee. In particular, we include his letter of 30 June, our letter of 8 September and his letter of 21 September, and the detailed matters that arose on that, which take up two pages. We include our letter of 27 October and the explanatory memorandum of 15 November. The idea that the Minister can slide past this—

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[Mr Cash]

There is an obligation to answer this point.

[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 David]

I thank the hon. Member for Stone (Mr Cash) for providing an indication of what his Committee’s recent report says. We have heard over the last few days how important his reports have been in the consideration of this Bill. I also thank him for providing a useful context to the developing relationship between British law and European law.

During the last couple of days, we have heard a great deal from the Government about so-called direct democracy—enabling the people to make decisions themselves. However, it is worth remembering that the Conservative party has never been the party of devolution in Britain and it has always had a very limited definition of the European concept of subsidiarity. During the last few days, we have also discussed the exemption clause and the significance test—ways in which the Govt are substantially qualifying their apparent commitment to referendums. This afternoon, we go on to discuss the Government’s proposals for those issues that they deem, to quote the Minister for Europe, are “not of sufficient significance” to require a referendum.

Clause 7 sets out where primary legislation is required in such areas. It is interesting that the Government see Parliament playing a key role, but only on what it considers to be second tier issues—issues that do not require, to quote the Minister again, a “full-blown referendum”. Leaving aside the difference between a full-blown and a half-blown referendum, this differentiation between what is deemed appropriate for direct democratic decision making and for parliamentary decision-making well illustrates the incoherence and contradictions at the heart of this Bill.

For example, yesterday we heard from the Minister how under schedule 1 to the Bill any change to the appointment procedure of the advocates-general of the ECJ would attract a referendum. However, according to the letter that the Minister sent to his Back Benchers in November, a move from unanimity to qualified majority voting for decisions concerning the number of advocates-general would not attract a referendum, but would be covered by clause 7. Perhaps he will be kind enough to explain to the Committee why there are to be different procedures on those two related issues. It would be difficult in the extreme for any Government to explain why a referendum would be held on the one issue, but not the other.

It should be stressed that clause 7 is not about stopping changes at either the Council of Ministers or the European Council, because any member state can block a change to an internal passerelle clause. Clause 7 is only about providing parliamentary approval if the Government have already agreed to use one of the decisions set out in the clause. As my hon. Friend the Member for Wolverhampton North East (Emma Reynolds) pointed out yesterday, it would be extremely difficult for a Council decision to abolish unanimity in respect of the adoption of any future acts. Indeed, Sir John Grant, the former United Kingdom permanent representative to the European Union put the matter extremely well in his evidence to the European Scrutiny Committee when he said that

“everybody’s got to agree that some of them are going to be outvoted.”

It is extremely unlikely that such a scenario would arise, so in reality the impact of clause 7 will be very small indeed.

After clause 7 we have clause 8, which would give Parliament a greater role over the so-called flexibility clause in the Lisbon treaty, and after that there is clause 9, which deals with justice and home affairs issues. Yesterday we discussed how some justice and home affairs issues would be covered by a referendum; today we discuss some justice and home affairs issues that will not. In particular, I want to refer to opt-ins to measures

“under the area of freedom, security and justice”.

Interestingly, the Bill does not really deal with one extremely important area. Britain has a temporary opt-out in the Lisbon treaty with regard to certain justice and home affairs measures. Under that protocol there are transitional provisions that provide for the United Kingdom to participate—or not—in certain European Union justice and home affairs measures. For example, the Government decided not to opt in to the draft EU directive on human trafficking. They decided not to opt in to that directive at the start of the legislative process, making the same decision during that process and at its conclusion, although I understand that they are to review the position when it comes to the adoption of the directive.

We believe that this is an important issue—an issue that clearly has to be addressed on an international and a European basis. I understand that the Government have decided to opt in to the sexual abuse, sexual exploitation of children and child pornography directive—and quite right too—but what about the issue of international human trafficking? Our view is clear: it is an important issue that Britain should be tackling in co-operation with our European partners. However, the issue before us today is whether it is sensible, according to the Government’s own logic, to agree to their proposal that such opt-in provisions should be subject to parliamentary scrutiny, but not a referendum. We fully believe that there should be more parliamentary scrutiny. That is why we agreed to an enhanced role for national Parliaments in the Lisbon treaty. However, given that the Government have been arguing for referendums on important issues, why are they not proposing a referendum on such an important issue?

According to the protocol to the Lisbon treaty, the United Kingdom has an opt-in provision that will last for four and a half years. After that, Britain will be fully part of the justice and home affairs decision-making process. Last night we heard that the Government had absolutely no intention whatever of allowing referendums to take place before 2015 at the earliest. The question that I ask is: why? According to the Government’s own logic, if there are to be referendums on important changes that affect the United Kingdom, there should surely be a referendum on this justice and home affairs opt-in during the course of this Parliament. Nothing better shows the inconsistency and incoherence of the Bill than this. It is a muddled clause in a very muddled Bill.

So much for clause 9. Next is clause 10. If what we have been discussing does not make things complicated enough, clause 10 sets out a further six decisions that require parliamentary approval. It is as though the Government have gone out of their way to create a piece of legislation that is deliberately confusing, obsessively complex and designed to confound every constitutional expert in the land.

Let me be clear: we strongly support greater parliamentary involvement and greater parliamentary scrutiny. That is why Baroness Ashton, when she was Leader of the House of Lords under the previous Government, made a statement setting out commitments by the then Government for more parliamentary scrutiny on actions arising from the justice and home affairs protocols. Last week, this Government made a statement that reaffirmed those commitments, and I welcome that. However, we are genuinely concerned about the lack of clarity. This is an obtuse and even eccentric way of addressing serious constitutional issues. They are issues that affect the people of this country on a day-to-day basis, and the country and the House deserve better than the Bill before us today.

[Mr Lidington]

May I first respond to my hon. Friend the Member for Stone (Mr Cash)? He spoke with his characteristic dignity, courtesy and thoroughness about the issue of EU accession. I am sure that he will understand that I want to look carefully at the report from his Committee, rather than responding on the hoof this afternoon. As he would expect, a subject of this significance needs to be discussed by Ministers collectively in order for the Government to come up with the thorough and considered response that every member of his Committee deserves.

Clause 7 fulfils the pledge made in the coalition programme for government that

“the use of any passerelle”—

or ratchet clause—

“would require primary legislation.”

It sets out that the Government may not agree to the use of a number of passerelles, or ratchet clauses, in the EU treaties unless the approval from this House is specified in an Act of Parliament.

As the Foreign Secretary and I have made clear in the past, there is no straightforward legal or treaty definition of a ratchet clause. The European Union (Amendment) Act 2008 listed 10 such clauses and limited the definition to use of the simplified revision procedure and to nine articles that allow for the giving up of the British veto in specific areas. When we considered that commitment in the coalition programme, we decided that that definition was insufficient. So for a start, we have put a referendum lock on many of the passerelles listed in the 2008 Act. We debated those matters earlier in our Committee proceedings. Others we have subjected to a primary legislation lock under clause 7. So the use of article 48(7) to give up the UK veto in an area that we did not include in schedule 1 to the Bill would, none the less, still require full parliamentary approval in an Act of Parliament. The same principle applies to any proposal to move to qualified majority voting in an area of enhanced co-operation in which the UK is a participant.

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[Ms Gisela Stuart]

I apologise if I have missed something that the Minister has already said, but are the lists setting out what requires a referendum and what requires other procedures indicative or exhaustive?

[Mr Lidington]

What is clear in the Bill is that anything under article 48(7) relating to the giving up of a UK veto or a move to qualified majority voting would require primary legislation here. My hon. Friend the Member for Daventry questioned me on those areas of policy, defined in various parts of the treaty, where article 48(7) could be applied to move from the special to the ordinary legislative procedure, but where QMV still applies now and would apply in the new circumstances. If it would help the hon. Lady, I will happily copy the letter I write to my hon. Friend the Member for Daventry to her as well.

We took the opportunity in working on this Bill to take a fresh look at this issue. We concluded that a general principle could be applied—that articles already in the treaties that provided a “one-way” option should also be considered to be passerelle clauses. These one-way options add to or reduce what could be done within existing areas of EU competence, but without changes to either voting rules or legislative procedures. We felt that they should be subject to primary legislation.

We also looked hard at articles that modify the composition or rules of procedure of existing EU institutions and bodies. We will come on to most of those when we debate clause 10. However, we felt that the article allowing for the amendment of the number of Commissioners was a highly significant article as it could be used to negotiate a reduction in the current requirement that every member state should nominate one Commissioner. We therefore proposed, because of the importance of that matter, that any such decision should require approval by primary legislation.

[Chris Bryant (Rhondda) (Lab)]

Is it not ludicrous that there are so many Commissioners? There are far too many of them to give them all proper jobs. Half of them do not have a proper job now. We have ended up with a system under which each country gets one Commissioner, but they are not meant to be there as “the British Commissioner”. They should work together as a commission. When it comes to state aid, it is particularly important that they act independently, not as a national representative.

[Mr Lidington]

The hon. Gentleman, my predecessor in office, puts a strongly held view with characteristic cogency. Whatever the merits of his argument, it seems to me that departing from the principle that each country should be entitled to nominate a Commissioner would be a change of major significance to the way in which the European Union is organised and run. As such, it would seem appropriate, whatever the merits or demerits of the proposal, that this should be subject to primary legislation rather than any less demanding form of parliamentary scrutiny.

[Ms Stuart]

rose—

[Chris Bryant]

rose—

[Mr Lidington]

I am conscious of the pressure on time and I am going to try to make some progress.

Let me respond to the challenge from the hon. Member for Caerphilly (Mr David) about the numbers of advocates-general. There are not 27 advocates-general, so we are not in the position of having one for every member state, but it is important that we retain the veto on this, and we have no intention of giving it up.

It is important for the United Kingdom to be able to approve the appointments of judges and advocates-general, and we felt that it was sufficiently important to be included in schedule 1.

[Mr David]

rose—

[Mr Lidington]

There will be other opportunities for us to debate the number of advocates-general, and I am sure that the hon. Gentleman is ingenious enough to identify them. He and his hon. Friends have managed to weave the issue into every speech they have made so far at every stage of the Bill’s progress.

[Mr David]

rose—

[Mr Lidington]

I am afraid that I am going to deny myself the pleasure of hearing a further explanation from the hon. Gentleman.

The other articles listed in clause 7—covering decisions on provisions for elections to the European Parliament, on the system of own resources of the EU, and on the adoption of provisions to replace the excessive deficit procedure—already require primary legislation before this country can agree to them, and clause 7 replicates those earlier requirements. Decisions under the articles listed in clause 7(2) would require approval in accordance with the constitutional requirements of the member state before the member state confirmed its approval of a decision. The four articles that I mentioned are also subject to enhanced parliamentary control in Germany following the judgment of the Federal Constitutional Court on the Lisbon treaty.

For the other decisions listed in subsection (4), primary legislation will be needed before this country votes in the Council of Ministers or the European Council. In other words, the Act will be needed before the United Kingdom can cast its vote. We intend that to happen before the final political decision to use the ratchet clause is made at European Union level but after official-level negotiations have been completed, so that it is clear to Parliament that that is the final text and it can make a decision on what is proposed without the risk of further changes.

Unlike the 2008 Act, the Bill does not contain a disapplication provision giving Ministers discretion to approve a decision that has been amended since being approved by Parliament. That is deliberate. We want Parliament to approve the final version, although it will of course be examining the proposals from an early stage under the existing arrangements for parliamentary scrutiny of European legislation.

I should emphasise that these provisions will apply only when the Government intend to agree to a measure. If the Government of the day did not support the exercise of any of the ratchet clauses, they would simply block their adoption. However, the pledge in the coalition agreement and the commitment in the Bill provide that when the Government would be in favour of such a decision, Parliament must approve it first.

[Chris Bryant]

I did not intend to speak, but as the Minister refused to give way—it was the first time I had ever seen a Minister do that in Committee—I wanted to make one very brief point. [Interruption.] I see that the Whip is fulminating. He can go and fulminate on his own.

The problem with the Bill, and with clause 7 in particular, is that it will make it more difficult for us to negotiate with other countries to achieve the outcomes that we want for the British people. Let us suppose, for example, that France introduced a law similar to this and we tried to negotiate a proposal that is in the coalition agreement, namely that we should end the ludicrous caravanserai between Brussels and Strasbourg. It is laid down in the treaties that the European Parliament shall have two places in which to sit, which is ludicrous given the vast amount of money that is spent on the two buildings, the vast inconvenience caused to people, and the creation of a monopoly air service which is also ludicrously expensive. Moreover, I do not think that all that has resulted in a better policy and decision-making process. However, if the French Government had a law such as this, they would simply block every treaty change that might be in our interests.

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[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.

[Mr Cash]

I understand exactly what the Minister says, but I am sure he will concede that that is all without prejudice to the fact that the measure is an expansion of what is a very wide provision in itself. For example, on the point that he has just made, there is a self-amendment provision in the treaty. It is difficult in such debates to get right down to the nuts and bolts, but basically this is a problem of an expanding treaty provision that was widely construed and widely drafted in the first place.

[Mr Lidington]

Given the history of the article’s use, I do not blame my hon. Friend for being properly sceptical and inquiring about how it might be used in future, but the Lisbon treaty now sets out explicit and specific treaty bases to govern policy areas and legislative measures that were previously the subject of article 352 authority, so it rules out the article’s future use to authorise measures in those categories.

Despite the greater restrictions on the use of article 352, and although it is not a ratchet clause under the definition that the Government have tried to apply consistently, given its significance we have decided that its use should be subject to greater parliamentary control. At the moment, as my hon. Friend acknowledges, its use is subject to the same parliamentary scrutiny as any other proposal for EU legislation, and the Bill makes it clear that this Government do not believe that that is sufficient, hence the inclusion of clause 9. The provisions will apply to proposals for which article 352 forms one part of the legal base and to proposals based on article 352 exclusively.

The article has been used in the past to authorise a range of important measures: to set up EU agencies such as the European Union Agency for Fundamental Rights; to set up things such as a community civil protection mechanism; and to enable member states to work together to mitigate damage from natural or man-made disasters. They were important decisions, and they exemplify exactly the sort of legislation that will require an Act of Parliament under this Bill before the United Kingdom is able to sign up to it.

I turn, however, to the exemptions. Where legislation based on article 352 is equivalent to a previous measure, prolongs or renews an existing measure or extends a previous measure in terms of its geographical scope, we do not think it right to require an Act of Parliament in order to agree to it—if the substance of the measure is identical to a previously agreed measure. If it is not identical, the measure should none the less be subjected to parliamentary approval by Act of Parliament. Similarly, we do not judge that an Act of Parliament is an appropriate requirement if the legislation simply repeals existing measures or consolidates, without adding to, existing measures made under that article. Any proposal for legislation based on that article, even if the Government consider that it is covered by one of the exemptions, would of course remain subject to the normal arrangements for the scrutiny of EU legislation and the powers of the two scrutiny Committees.

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I hope that the Government will give further consideration to tightening up the statement and to introducing measures on Report that would give further confidence that the House will have a say on these most sensitive of issues—the criminal justice system and the control of our borders. This is one of the most central concerns of my constituents. I hope that Ministers will ensure that we will have proper scrutiny of any such measures.

[Mr Lidington]

I am grateful to all hon. Members who have taken part in the debate, and in particular to my hon. Friends the Members for Daventry (Chris Heaton-Harris) and for Hertsmere (Mr Clappison) for their explanations of the contents of and the motives behind the amendments, and for their offer not to press them to the vote.

I say to the hon. Member for Birmingham, Edgbaston (Ms Stuart) that I will hold back my innate wish to be aggressive to the point of rudeness towards her, and that I am happy to find an occasion to discuss with her and interested Opposition Members the content of last Thursday’s written ministerial statement and how we can take matters forward. It will be better for the reputation of the House, of governance in this country and of how we as a Government and a Parliament handle justice and home affairs coming from the EU if there is the maximum possible agreement across the political parties on a structure that we hope will then endure.

Before I move on to the amendments, I should like to respond briefly to some of the points that have been made that are more appropriate to a stand part debate. I turn first to the hon. Member for Caerphilly (Mr David). I will not go on at him incessantly about this, but I found it strange that in a debate on so many amendments, covering such a wide range of justice and home affairs issues, he focused almost entirely on the contents of the next group of amendments that we are due to debate and on the parliamentary lock that would be imposed on the number of advocates-general. I shall try to satisfy him on that point.

We have included in schedule 1 any move to change the basis of decision making under article 19(2) of the treaty on European union from unanimity to qualified majority voting, so that it would be caught by the referendum lock. That article guarantees that there will be one judge from each member state in both the general court and the Court of Justice of the European Union. It is important that we ensure that we continue to have a veto, so that we can insist that there is a UK judge there.

That is important not just for the national interest but for the reason given by my hon. Friend the Member for Esher and Walton (Mr Raab) and others this evening. Four EU member states have common-law jurisdictions, although our Scottish colleagues in the House might argue that the UK is by no means entirely a common-law jurisdiction. Those states are ourselves, Ireland, Cyprus and Malta. For that reason, it is important to have a suitable arrangement for taking decisions about the number of judges, and a requirement for each member state to nominate a judge, so that we can effectively protect the representation of those four jurisdictions in the highest judicial councils of the EU.

The hon. Member for Caerphilly will also find in article 19(2) a requirement for both judges and advocates-general to be

“persons whose independence is beyond doubt”.

Again, that requirement deserves to be protected. I have no reason to believe that the other member states would vote to dilute it, but the importance of the article justifies the referendum lock.

In contrast, article 252 of the TFEU requires there to be eight advocates-general to advise the court. There is not the same idea that there should be one from each member state. The article states that unanimity is needed in order to increase the number of advocates-general beyond eight, and a change to that article would be required for a switch to qualified majority voting. However, I say to the hon. Gentleman that I believe the people whom we represent would find it slightly odd if we invited them to participate in a national referendum on whether to raise the number of advocates-general or on whether to change the method by which that decision is taken. That is the reason for the distinction that we draw in the Bill.

My hon. Friend the Member for Daventry asked about moves towards a common EU asylum system. The British Government strongly believe in the importance of practical co-operation on asylum policy within the EU. Equally, we do not judge that a common EU asylum policy is right for Britain. We believe that on many issues, EU member states have much to gain by working together, but we have made it clear that the emphasis of the EU’s agenda on asylum should not always be on legislation, but on helping member states to improve the quality of their individual asylum systems. As I am sure my hon. Friend knows, the UK has not opted into the reception conditions directive, the qualifications directive or the asylum procedures directive.

My hon. Friend the Member for Stone (Mr Cash) asked about the European investigation order. My right hon. Friend the Home Secretary has set out very plainly on more than one occasion her reasons for recommending that the Government opt in to that measure.

[Charlie Elphicke]

May I just say how much I welcome the strong policy on asylum? Asylum has been a substantial problem in my constituency of Dover, with masses of would-be asylum seekers and economic migrants at Calais wanting to break into the country. Will the Minister tell the Committee more about how we will ensure our strength and independence on border security?

[Mr Lidington]

I do not want to be distracted from the subject matter of the debate—clause 9 and the amendments—so the best thing is for me to tell my hon. Friend that I will either write to him or ask my hon. Friend the Minister for Immigration to do so in response to the point that he raises.

May I summarise the Government’s case in response to my hon. Friend the Member for Stone? There have been many criticisms of the current criminal mutual legal assistance system; it is said that it is fragmented, confusing and subject to delays. In some cases, it takes many months to obtain vital evidence, and when the UK has been the requesting state, that has had a detrimental effect on UK investigations and trials. The EIO seeks to address those problems by simplifying the MLA system among EU member states and introducing strict deadlines for the execution of requests.

It is true that had we not opted into the EIO, we would still have been able to operate MLA with other EU countries, but we would have been in a tiny minority of EU countries not using the EIO. Owing to that, and because deadlines would not apply to UK MLA requests, it is likely that those requests would be given a lower priority than those of other states, and that our prosecutors would have experienced longer delays. Given that 75% of the UK’s MLA traffic is with other EU countries, the practical impact on UK cases would have been significant.

If my hon. Friend wishes to pursue the matter further, I suggest that he first looks at the letter which the Home Secretary wrote to the hon. Member for Nottingham East (Chris Leslie) on 3 August 2010, and which she has deposited in the Library. The letter details a number of specific cases in which the current arrangements were proven to be inadequate. In one case, evidence that was not returned prior to the conclusion of the trial may have led to the suspect being exonerated. Her judgment and the Government’s judgment is that had we not opted in, it is likely that there would be more such cases.

[Nick de Bois]

My right hon. Friend is well aware of my long-term interest in matters pertaining to the European arrest warrant and the EIO. By that explanation, he has demonstrated the importance of, and the need for, the EAW and the EIO. I hope he will reassure us that the Bill gives the House the chance to debate and pass judgment such things, and to facilitate decisions on opting in or out.

[Mr Lidington]

My answer to that is on two fronts. The EAW is, of course, a pre-Lisbon, pillar three arrangement. It was not subject to post-Lisbon scrutiny, let alone to the detailed scrutiny and discussions with Committees and other representatives of Parliament that the Government are proposing. On the European investigation order, I can give comfort to my hon. Friend. It is the Government’s view that the decision to opt in to the order is one of the matters that would not only have attracted significant parliamentary interest, but which would also have raised questions of political and legal importance that would fully justify a full debate in Government time. With that debate would obviously come the opportunity of a parliamentary vote.

[Mr David]

I have some sympathy in policy terms with the Government on the issue of the European investigation order, but would it not have been possible to have had informal consultation with, let us say, the outgoing Chair of the European Scrutiny Committee, rather than having no consultation with Parliament at all?

[Mr Lidington]

I cannot recall without advice whether the Committee had just been appointed but had not met, or whether it had not yet been constituted, but the lesson that I draw from that episode—and the Government were far from happy with the fact that we had to take a decision at the end of the three-month period without a formal scrutiny process—is that we have, in the forthcoming discussions, to find a way to address the real difficulty that arises during a Dissolution of Parliament and the period after that before the scrutiny Committees are fully reconstituted. What the new Government found on coming into office was that the EU’s legislative timetable on justice and home affairs had not stopped and there was an accumulation of measures, each with a non-extendable three-month timetable, at the end of which we had to decide whether to make the initial opt-in. A large chunk of that time had already been devoured by the period of Dissolution, and there were no scrutiny Committees in place to do the job that we would want and expect Parliament to do.

[Mr Clappison]

Can I take it from what my right hon. Friend has just said about the European investigation order that although it may be an issue that he would consider as of particular interest and therefore deserving a debate under the scrutiny process, it would not have been caught by clause 9 as it stands? He is therefore conceding that this is an extra stage of scrutiny that has been brought about by the diligent and commendable efforts of my hon. Friend the Member for Stone, who has done a service to the House in ensuring additional scrutiny.

[Mr Lidington]

My hon. Friend is right. I signed off a letter to my hon. Friend the Member for Stone (Mr Cash) earlier today responding to these points, which he put to me in writing, although I expect that he has not yet received it. We draw a distinction between the justice and home affairs matters on which it is already within the competence of the EU to act, but where the UK has an opt-in, and matters that are without the existing competence of the European Union. We have tried to maintain that distinction in each aspect of the Bill, and that is a point that has informed the Government’s collective view on this legislation.

[Mr Clappison]

My right hon. Friend said “where the UK has an opt-in,” but if I may correct him, I think that he meant where we have the right to opt in. There is a substantial body of such matters and, of course, in each case they would be subject to the jurisdiction of the ECJ, should we decide to opt in.

[Mr Lidington]

My hon. Friend is right to make that correction. He is also right when he refers to the importance of the jurisdiction of the ECJ as a relevant new feature of any justice and home affairs measure that is brought forward subsequent to the Lisbon treaty. That is the thing that makes such a profound difference between third-pillar arrangements and the current treaty arrangements. That is why when Ministers—usually the Justice Secretary or Home Secretary—come to the European Affairs Committee of the Cabinet with a proposed decision on a justice and home affairs measure, they are required, as a standard part of Government policy, to produce an analysis of the likely impact of ECJ jurisdiction on our law if the United Kingdom participated in the measure, and also to assess the risks that this would lead to competence creep. My hon. Friend is right that that is an important consideration that we need to take into account when judging the balance of national interests that determines whether we choose to opt in to, or stay out of, a particular decision.

My hon. Friend the Member for Dover (Charlie Elphicke), along with a number of other hon. Members, asked why we needed to opt in at all, because if we have not gone through the whole scrutiny process, we should just leave it and opt out. The treaty gives us a three-month period within which we have to decide whether we want to make an initial opt-in. We can, if we choose, opt out at that stage, let the negotiations take place on the final version of the measure, and then opt in to the final text, as agreed by the others taking part. The problem with what he suggested is that it is not a reliable method of ensuring that our national interests are properly represented, for a number of reasons.

First, if we wait until the final stage, we have to ask the Commission if we may participate. The Council is then able to specify conditions under which United Kingdom can do so. If we judge that the balance of advantage points towards our opting in, there is a further advantage in getting in first. Secondly, if we participate on the first occasion on which we can opt in, we will then be at the table with a vote, helping to shape the final status of the text. We will not be in anything like as influential a position if we make a decision first to stay out. Thirdly, if we are not taking part, we have no vote on the final text. There are sometimes occasions—perhaps on a counter-terrorism measure—where we might decide that, on balance, it will be in our national interest to opt in, but where we dislike one particular element of the draft text. Perhaps we also know that two or three other key member states have similar reservations. In those circumstances, it is possible that the Government’s decision would be to opt in by the end of the three-month period, with the aim of putting together an alliance with those other member states so as to secure through negotiation a final text that meets our interests and means that we are completely content with the outcome.

[Mr Clappison]

My right hon. Friend is being most courteous in giving way. On the question of where the national interest lies, I understand and accept the reasons why the Government, as a coalition, are having to go through the complicated process that he has described. However, in the Conservative manifesto it was conceived as being in the national interest that we should not opt in to any such matters, because we were clear that there should be no further extension of the EU’s power over the UK and we promised to work to return key powers over legal rights, criminal justice, and social and employment legislation to the UK. However, we cannot have envisaged seeking to return those powers while at the same time handing over completely new powers to the European Union, by choosing to opt in. That was the national interest as we saw it, and it remains the national interest.

[Mr Lidington]

My hon. Friend puts his point trenchantly. I am not going to make any secret of the fact that the handling of European policy, and in particular on justice and home affairs, has been one of the most delicate issues for the coalition. There have had to be compromises on both sides to get the package of measures that we are including in the Bill and to shape the general policy that we are pursuing in respect of the European Union.

[Mr Cash]

rose—

[Mr Lidington]

If my hon. Friend will forgive me, I would like to answer one hon. Friend before I give way to another one.

If my hon. Friend the Member for Hertsmere looks back to the debates on the Lisbon treaty, he will remember that he and I walked through the same Lobby, day after day, in opposition to that treaty. My recollection is that we had at least one day when we talked entirely about justice and home affairs matters. He knows the view that I took as a Front Bencher in a Conservative Opposition. I would much rather be either a member of or supporting a Conservative-Liberal Democrat coalition than spend another Parliament sitting fruitlessly in opposition, seeing measures being taken through the House to which I was vehemently opposed but which I was powerless to stop.

[Mr Cash]

My right hon. Friend is getting on to a very sensitive point, and I quite understand the sensitivities involved. When I wrote to my right hon. Friend the Prime Minister on 10 May last year about the coalition agreement, I specifically stated that, if there were to be a coalition—I had made it clear that I would have preferred a minority Government—it was essential that the Liberal Democrats should at least be required to abstain on matters relating to the European Union, for all the reasons that my hon. Friend the Member for Hertsmere (Mr Clappison) has just given. That is the problem, and we are now finding ourselves in an impossible dilemma. In fact, I would say that the situation is untenable.

[Mr Lidington]

I disagree with my hon. Friend’s statement either that we face an impossible dilemma or that the situation is untenable. We have a situation in which two political parties with differences of perspective and tradition on a number of issues are finding a way in which to work together in the interests of the nation as a whole. I think that the coalition is providing stable government. It is new in recent British political experience, but I find that it is hugely welcomed by many people of all political persuasions and no strong political persuasion.

[Mr David]

When the Minister says “people of all political persuasions”, he certainly should not include those on the Opposition Benches. I found his recent comment very interesting indeed. We understand how keen and enthusiastic he was to become a Minister, and this is the first time that he has revealed why he really, really wanted to be one. Also, this is the first time that he—or any other Minister—has acknowledged that the Bill is basically a compromise. It is the result of negotiations between the Liberal Democrats and the Conservatives. It is important that that point is now firmly on record. This is the first time in this whole debate that it has been said. In the interests of transparency and openness, will he elaborate, so that we can find out the exact nature of the negotiating process that led to this rag-bag of a Bill?

[Mr Lidington]

It is a bit rich for the hon. Gentleman to intervene in that fashion. He and I know that, in regard to policy on Europe or on any other matter, Governments of a single party in recent history—Conservative and Labour—have had to compromise a great deal, given the different points of view in the broad churches that those parties represent.

[Ms Gisela Stuart]

They never compromised.

[Mr Lidington]

The hon. Lady says that the Labour Government never sought to compromise. That might explain their result at the last general election.

The answer to the hon. Member for Caerphilly is that there is a collective discussion, and it is a matter of public record that every decision about European policy is routed through the European Affairs Committee of the Cabinet. The membership of that Cabinet Committee is published: it comprises two thirds Conservative Ministers and one third Liberal Democrat Ministers. That is the balance of all the Cabinet Committees. There are discussions and exchanges of points of view, and there is an outcome to which everyone collectively is willing to sign up and support. That seems to be a sensible, constructive way in which to do the business of government.

[Jacob Rees-Mogg]

I thank the Minister for giving way once more. Would he be kind enough to clarify this point about the coalition? Can we take it that the Conservatives do not wish to opt in wherever an opt-in is available, so that whenever we do so, it is because we have been bullied into it by the Lib Dems?

[Mr Lidington]

No, I do not think that my hon. Friend should jump to that conclusion. In yesterday’s debate, I cited some counter-terrorist measures such as the European initiatives on passenger name records or on the tracking of terrorist finance, and it is very much in the interests of the United Kingdom for us to take part in them. The US Government, who have a strong interest in these areas of policy, very much want a transatlantic agreement on such counter-measures and look to us to try to persuade other European Union member states to support a vigorous counter-terrorist policy and effective measures that will satisfy Washington as well as London.

--- Later in debate ---

[Henry Smith (Crawley) (Con)]

Would my right hon. Friend not consider including that in the Bill?

[Mr Lidington]

We are due to debate the measures later.

The Government will have three options. They can decide to opt in to all the measures en bloc, or they can decide to opt out of them en bloc. The judgment that Ministers will have to make—I emphasise that no decision has yet been made, and that we are nowhere near making one or making a recommendation—is that these are measures in which the United Kingdom freely decided that it wanted to participate, because it served our national interest to do so, during the “third pillar” process that existed before the Lisbon treaty.

The Government of the time—Labour or Conservative—decided that each measure was right and that it was in the British national interest to participate; but, of course, that decision was made on the basis that those were intergovernmental matters which did not fall within the jurisdiction of the European Court of Justice. That is a material difference. If we opt in to all these measures in 2014, we must accept that we are opting in to matters all of which will, from that point, be subject to ECJ jurisdiction.

[Mr David]

This is a very important point. One legal opinion says that if we reach that point in 2014 and the Government do not take a decision, Britain will have, in effect, opted in. Is that correct?

[Mr Lidington]

Yes, the default position is that we stay opted in. We have to take a decision one way or the other, and the Government are not going to hide in the corner and hope that nobody notices a decision to opt in. We are going to make a public announcement at the due time and have the debate in Parliament.

The third option for the Government would be to opt out of the measures en bloc and then seek to opt back in where we continue to believe that the balance of advantage to our national interest lies in participation. A complicated analysis is involved and we are talking about 90 such measures coming up for determination in or before 2014. As this is, again, a matter within existing competence, it is best dealt with through the enhanced scrutiny arrangements that I am proposing and it should certainly require a vote in the House. The Government have explicitly committed themselves to that and it will, of course, happen before the end of this Parliament in 2015.

The two amendments standing in the name of my hon. Friend the Member for Hertsmere and others tabled by my hon. Friend the Member for Daventry propose to subject all opt-in decisions to a requirement for an approval motion in both Houses, not simply those on which there is a significant level of parliamentary interest. Because of the practicalities of such a move on all opt-in decisions, that requirement would risk preventing the Government from being able to secure Parliament’s approval in time to opt in to any new JHA proposal within the three-month time limit set down in article 3 of protocol 21 in order to enable us to participate in negotiations at EU level. That would have a knock-on effect on our ability to help shape the proposal effectively in negotiation, and sometimes that is of great importance. Our votes made it possible to clinch an agreement on the EU-US terrorist finance tracking measure that suited our national interest and ensured that the Americans were content too. That deal became available during a parliamentary recess, when it would not have been possible to go through the formal procedures that the amendments seek to apply to each and every opt-in. That is one reason why in the discussions about enhancing scrutiny we have to find a way to handle the real difficulties that can sometimes arise, both during recesses and in periods of and following parliamentary Dissolution.

May I say in passing to my hon. Friend the Member for Daventry that, although the detail will be the subject of discussions with the relevant Committees and business managers, the possibility of a parliamentary vote would apply to any opt-in decision under the proposals that I made in my written statement. Included in that would be measures following the adoption of a measure by other member states and decisions not to opt out of Schengen measures where there is strong parliamentary interest in the measure or where the measure is of the importance that I have indicated in my written statement. The process proposed in the amendments does not lend itself to timely decision making when a rapid decision needs to be taken. I have outlined the practical reasons why this approach would not be proportionate and I hope that my hon. Friends will therefore be prepared not to press their amendments to a Division.

Amendment 47 would require parliamentary approval before we could opt in to a measure brought forward under article 83(2) of TFEU, which allows for the establishment of minimum rules regarding the definition of criminal offences and sanctions if such approximation of member state criminal laws and regulations is judged to be essential to ensure effective implementation of policy areas in which the EU has already harmonised standards. For example, if the EU set rules about environmental protection and a criminal sanction proved essential to make those rules effective, the EU could consequently set a minimum standard for a criminal offence in that area.

I listened carefully to what my hon. Friend the Member for Stone said, but I do not believe that article 83(2) is a ratchet clause in the way that articles 81(3), 82(2)(d) or 81(1) are so considered. Article 83(2) makes provision for Europe to be able to act under its existing competence without the need to be able to expand EU action in the same way, for example, as article 83(1) provides for the ability to expand the list of areas of serious cross-border crime in which the EU can act. I do not therefore think that it should be subject to the enhanced level of parliamentary control set out in the Bill to which the ratchet clauses are to be subject, given the relative differences in effect.

--- Later in debate ---

[Mr Jenkin]

I am not sure how to answer that question. If the hon. Lady does not mind, I will continue my remarks, because I intend to sit down shortly so that other Members can take part. All I will say is that those decisions should be reserved not only for Parliament, but for an Act of Parliament. They are of such significance that I would prefer the Government to accept amendment 82 so that a decision on those matters is made by referendum.

I remind the Minister that we originally stood on a manifesto commitment to have a referendum on the Lisbon treaty. Indeed, the Liberal Democrats, with whom we sit in coalition, wanted a referendum on the EU as well. Given that common ground, I cannot for the life of me understand why we should not have a referendum on at least this aspect of the Lisbon treaty. If the Liberal Democrats want to call it an “in or out” referendum, they may do so, but the question on the ballot paper should simply be: “Do you want the criminal justice system of this country to be controlled by the European Union?” I know what the answer would be. If the Government were to hold that referendum, I think that they would be very popular. In fact, it might even make the coalition popular. I recommend it to the Minister.

A few moments ago I checked to see whether there is a copy of the document that I am holding on the Table. There are all sorts of things on the Table, including “Vacher’s”, the Standing Orders, “Erskine May” and documents relating to the proceedings of the House. There is the guide to standards of conduct in public life and all sorts of things that direct the behaviour and conduct of Members and what we do in the House. However, this document is not there. It, of course, is “Consolidated Texts of the EU Treaties as Amended by the Treaty of Lisbon”, as published by the Government. I have to say that the index is a little thin, which makes it difficult to find one’s way through it. This is the document that now governs this country. Unless we change our relationship with the EU, this will be the constitution of the United Kingdom, as we have no written constitution of our own. These are the laws by which we are governed, but it is not even on the Table. That underlines how this House, 20 years after we signed the Maastricht treaty, which began to establish European governance, is still sleepwalking into a European federation.

There are those who wishfully believe that the argument has somehow been won by the Eurosceptics. It is an argument that they do not want to have. They want to avoid it because in order to resolve the democratic government of this country, we will have to confront the EU. There will have to be a disagreement with our European partners, because there is so much pride invested in the document, and other member states have so much pride in having drawn the United Kingdom into those arrangements. They will have to be confronted with the humiliation that they were wrong. As the euro collapses around our ears and the peoples of Europe rise up in the streets of their capitals, there could be no better time to do that; and there could be no better time to do it than when the EU itself is asking for new powers and asking us to agree to things for which they need our consent. That is the time we should be asking for our powers and our governance back on a mutually agreed basis. It is lamentable that the Government have not even the willpower to ask for those things.

[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.