European Union Bill

Lord Davies of Stamford Excerpts

Wednesday 8th June 2011 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, I shall speak also to Amendment 7. I hope that the noble Lord, Lord Liddle, will regard this too as a major concession by the Government. These two amendments are intended to address a point raised by a number of Peers during our debate on the first day in Committee some weeks ago on what the noble Baroness, Lady Symons of Vernham Dean, described as a probing amendment. The noble Baroness, along with the noble Lord, Lord Davies of Stamford, and the noble and learned Baroness, Lady Butler-Sloss, raised the question of the correct interpretation of Clauses 2 and 3 with respect to the application of the referendum provision to Gibraltar. They raised the concern that the provisions as drafted could result in the need to hold a referendum in the UK even if the proposed treaty change happened to apply solely to Gibraltar and not to the United Kingdom. They said that this would be nonsensical. I agree that in such unlikely circumstances it would be nonsensical.

As your Lordships’ House is aware, the Bill concerns only the future transfer of competence or power from the UK to the EU. As I promised at the end of that debate, we have reflected further on this issue. Our view remains that the requirement for a referendum to be held in Gibraltar under the provisions of the EU Bill is not self-standing but is dependent on three things: first, that there is a treaty change which applies both to the UK and Gibraltar and, secondly, that the treaty change would result in a transfer of competence or power from the UK to the EU. Then and only then does the third condition arise; namely, whether the treaty change would also represent a transfer of competence or power from Gibraltar to the EU.

That said, we recognise that it is important to be as transparent and clear as possible. That is the Government’s intention. Consequently, we have tabled these two simple amendments to Clauses 2 and 3 to make sure that the meaning is clear beyond doubt. The amendment makes explicit that only if a treaty change were to apply to both the UK and Gibraltar, and the referendum is to be held in the UK, would that referendum also be held in Gibraltar. I beg to move.

[Lord Davies of Stamford]

I hoped to intervene before the Minister sat down but I missed my cue. I shall be very brief. As the noble Lord and his colleague, the noble Lord, Lord Howell, have been courteous enough to mention me in the context of our debates on these matters in Committee, it would be wrong of me not to say that we on this side appreciate that the Government have genuinely reflected on the Committee stage debate on these two matters, relatively minor though they may be. That is encouraging for us and the hope that we can all take part in improving this legislation and that the result of our labours will not be entirely nil. Does the noble Lord have in mind any specific contingency in which there might be a proposal involving the transfer of powers from Gibraltar to the EU, or is this whole subject merely theoretical? Have the Government provided for it as a purely theoretical possibility, or do they have any issue in mind that might be triggered by this clause?

[Lord Triesman]

My Lords, I appreciate the tabling of these two amendments by the Government. I share the view of the noble Lord, Lord Wallace, that they will probably not be thought of as huge concessions almost anywhere. He put that rather generously and he is quite right—they will not. More to the point, they are wise amendments. It may well be that on some future occasion he will wish to land in Gibraltar. He would not want to receive the sort of frosty reception that he would receive if he had done anything to the people of Gibraltar other than what appears as a result of these two amendments. It is a helpful clarification. We are satisfied with it and thank him.

--- Later in debate ---

[Baroness Falkner of Margravine]

I say to noble Lords opposite that we on the Liberal Democrat Benches recognise that this amendment is intended to enhance scrutiny and to improve propositions that might be put forward by the Executive. We also accept the spirit of what noble Lords opposite are trying to do. For the record, I do not find, in the copy that I have just looked up, the elements of the coalition agreement to which the noble Lord, Lord Liddle, referred as endorsing this amendment. I would not want to tempt him to read out the entire section on Europe in the coalition agreement, as the hour is late.

I shall speak to the substantive elements of the amendment. We do not believe that it would be right to take such a dramatic step to remove from the Executive, the Government of the day, the decisions about what they will support or not and to give them to a committee of both Houses. We have had a long debate about Parliament and the importance of parliamentary scrutiny and so on. In Committee, we heard a lot of argumentation across the House regarding urgent situations and what would happen because decision-making was so late and would be so stymied. I find that the methodology proposed here would certainly add to the amount of time that would be taken to deal with measures if a Joint Committee had to rule on them. There would also be the issue of reintroducing some rather subjective concepts: urgency and national interest. We have had debates on those subjects; both are highly subjective. We are also conscious of the judicial review implications contained in the Bill.

Finally, the amendment seems to miss the underlying theme of the Bill, which is that the Executive make a call on a proposal, bring it to Parliament, Parliament agrees it and then the public are to ratify that decision through a referendum. As we have repeatedly heard from the ministerial Bench, the Bill is designed to reconnect the British public with these policy issues that emanate from the European Union. The public will be empowered, through the processes proposed here. To take that away and to give it to a Joint Committee of both Houses seems to me to entirely miss the point of the Bill. On that basis I suggest that it goes contra to where we had got. Before I conclude I give way to the noble Lord,

[Lord Davies of Stamford]

The noble Baroness has said that one of the reasons why she did not want to support the amendment was that she was worried that it would raise the possibility of judicial review on the decision about whether a referendum was necessary. According to this amendment, that decision will be taken by a parliamentary committee—in this case a joint parliamentary committee—so how could there possibly be a judicial review? That would be contrary to the Bill of Rights.

[Baroness Falkner of Margravine]

I think I can see the point that the noble Lord is making. I wonder whether he is interested in hearing my reply, as he is now engaged in another conversation. As I understand the amendment, the committee would make a recommendation to the Government on the basis of urgency, significance and national interest. I think the decision of the Minister, in accepting or not accepting the recommendation, would be subject to judicial review.

For the reasons I have enunciated, I can see that the amendment is well meaning but I urge my noble friends to oppose it.

[Lord Davies of Stamford]

My Lords, the clause makes no reference to the Joint Committee advising the Government. The Joint Committee would have the responsibility for making a decision. By definition, if the decision is made by a parliamentary committee—a Joint Committee or other parliamentary committee—it could not be subject to judicial review.

[Baroness Falkner of Margravine]

Since the noble Lord continues with the matter, I will detain the House for a moment. What is the point of a recommendation coming out of a Joint Committee if the Government ignore it?