2014 JHA Opt-out Decision

David Lidington Excerpts

Monday 15th July 2013 Commons Chamber

[Mark Reckless]

So his remarks were also very well prepared, for which I give him credit.

Earlier, the Home Secretary responded to me on the issue of whether the opt-ins under the justice and home affairs provisions—if indeed we have opt-ins now—would trigger a referendum. She shared her view that they would not, but she did not give reasons and I do not believe she spoke to the specifics of the point. The European Union Act 2011 was ably taken through the House by the Minister for Europe, whom I am delighted to see in his place—he may be able to correct or assist me, or perhaps share some of the Government’s legal insight, which has eluded me to date on this issue. Section 4(1) deals with triggers for a referendum, and paragraph (i) refers to

“the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom”.

An even clearer trigger is section 4(1)(j), which refers to

“the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom”.

It strikes me that with those opt-ins, the Commission would have the right to enforcement action, and the European Court of Justice potentially to deliver fines.

[The Minister for Europe (Mr David Lidington)]

My hon. Friend was right to read out those paragraphs of section 4(1) of the 2011 Act, but as its title makes clear, that section refers to “Cases where treaty or Article 48(6) decision attracts a referendum”. The decision we are debating this evening, which stems from specific provisions to the Lisbon treaty, is neither a treaty change nor an article 48(6) decision, and it therefore falls outwith the scope of section 4 of the 2011 Act.

[Mark Reckless]

I am not sure whether I have understood the Minister, but section 4(1) is of course subject to subsection (4), which states:

“A treaty or Article 48(6) decision does not fall within this section merely because it involves one or more of the following: the codification of practice…; the making of any provision that applies only to member States other than the United Kingdom; in the case of a treaty, the accession of a new member State.”

Subsection 4(4) does not appear to be triggered in this case.

[Mr Lidington]

I am sorry to intervene again on my hon. Friend, but the point I was seeking to make—I apologise if I was not sufficiently clear—was that this decision on the justice and home affairs 2014 measures is not the product of an initiative brought forward under article 48(6) of the European treaties. Article 48(6) provides for the simplified revision procedure of the European Union treaties; this is not a revision of the Lisbon treaty.