European Union Bill

Lord Wallace of Saltaire Excerpts

Tuesday 5th April 2011 Lords Chamber

[Lord Wallace of Saltaire]

We have had a technical debate—thank goodness, in a sense. I shall dash back home and get my European Union juriste linguiste dictionary and look at one or two translations of terms, particularly “power” and “competence”. I recall some years ago, in the early discussions on Schengen and British border controls, explaining to a French audience the difference between border checks and border controls, the former being selective and the latter systematic. It was explained to me that the translation into French of “check” is “contrôle” and the translation of “control” is “contrôle”. The subtlety of the English language did not easily play in French. This may be part of what we are getting at here.

The amendment raises some interesting questions about parliamentary sovereignty, as the noble Lord, Lord Davies of Stamford, recognised, and about the evolution of judicial review. I take it as given that ministerial decisions will be made in the first place to Parliament. Noble Lords will be well aware that the Government are taking through, as part of a package that includes this Bill, a number of measures to improve parliamentary scrutiny of new legislation. Ministerial decisions would, therefore, go in the first instance to the scrutiny committees of both Houses and would be examined fully by both Houses.

In the evolution of judicial review, which, as we all recognise, has become a good deal more active in recent years, whereas ministerial judgments are frequently subject to judicial review, judicial review of parliamentary decisions is a great deal more hesitant. The Solicitor-General said in the other place:

“Judicial review has increasingly become part of the legal armoury since the second world war. Ministers, whether of the present Government or the last, are not above the law, and it is for our independent judiciary to arbitrate, through judicial review cases, in disputes between the citizen and the state. The courts apply the laws enacted by Parliament, and Parliament can make, amend and repeal legislation as it thinks fit”.—[Official Report, Commons, 18/1/11; col. 691.]

The evolution of judicial review, it seems to me as a non-lawyer, is therefore likely to take a rather different approach to ministerial judgments on executive issues and ministerial Statements, which have been thoroughly scrutinised and accepted by Parliament. I hope that that begins to explain why, in the Government’s opinion, this amendment is not necessary. I have absolutely no doubt that there will be those who will wish to apply for judicial review of all ministerial decisions related to the sharing of powers within the EU. We have seen that already. That is precisely why one of the measures that we are taking to try to rebuild public trust in our engagement with the EU is to propose a strengthening of parliamentary engagement and scrutiny to ensure that the Government are not trying to slip things past people but are being increasingly transparent.

In the case of the judicial review brought by Mr Stuart Wheeler in connection with the treaty of Lisbon, the European Union (Amendment) Bill had received Royal Assent before the judgment of the court had been handed down. The issue was whether the Government should ratify before the process of judicial review had been completed. It is quite clear that a Government would not proceed to ratify a treaty amendment until a process of judicial review had been completed, although I think it unlikely in the extreme in the delicate relationship between our common-law judiciary and a sovereign Parliament—

[Lord Hannay of Chiswick]

The Minister has gone into an interesting point, which I wanted to ask about. The Stuart Wheeler case is relevant because there were attempts by a number of people to suggest that Parliament should suspend the completion of the ratification process until the judgment on the case was reached. The Government of the day declined that, correctly in my view, but the noble Lord is quite right that the deposit of the instrument of ratification took place after the court had ruled. It is not quite that the ratification was not complete; the deposit of the instrument of ratification, which is the last stage, had not happened. Am I taking it from him that the Government’s view will be in future that, if this sort of situation arises, they will not interrupt the parliamentary process of taking a decision on the European Union matter that is before them, so that the only impediment will be to the final deposit of an instrument of ratification and not to the completion of the parliamentary ratification?

[Lord Wallace of Saltaire]

My Lords, the noble Lord is raising a point whose subtlety is close to that with which juristes linguistes deal. My notes say that the Government would not complete ratification until a judicial review challenge had been taken. I have also been suggesting to noble Lords that a stronger parliamentary engagement and oversight in examining a ministerial judgment would make judicial practice in accepting claims for judicial review less likely in the future.

[Lord Hannay of Chiswick]

I do not think that we need pursue this matter this evening, but can the Minister be more precise when we come to that point at a later stage in the Bill? It is quite important. If the Government’s attitude is going to be that they will stop the process in Parliament while the legal process is going on, that is a completely different thing from saying that they will not complete the process by depositing an instrument of ratification until that is over. Will he clarify that point at a later stage or in writing?

[Lord Wallace of Saltaire]

I am happy to do so. I recognise that there are a number of complex judicial as well as parliamentary sovereignty issues at stake, some of which we will return to later, but I offer that assurance to the noble Lord and I hope that I have answered some of the questions raised by the noble Baroness.

[Lord Davies of Stamford]

I would have preferred the previous Government to have taken an even more robust line on the Stuart Wheeler case and to have in no way taken account of the judicial review in proceeding with the ratification process or depositing the instruments of ratification. It seems intolerable that there should be any judicial oversight of the proceedings in Parliament. That seems to be explicitly excluded by the Bill of Rights. I would be particularly worried if the present Government went in for a process of slippage, going even beyond the insufficiently robust approach of the last Government and allowing the timetable for the parliamentary consideration of a particular Bill to be affected by proceedings in a court of law.

[Lord Wallace of Saltaire]

I foresee that when we get to the debate on Clause 18 we shall have a great many discussions on the exact relationship between the judiciary and Parliament and parliamentary sovereignty. The time for that debate is not now but then.

[Lord Kerr of Kinlochard]

Does the Minister agree that the likelihood of judicial review is greatly enhanced by the creation of the significance test? In almost any case where Parliament does not wish to have a referendum because it has accepted the Government’s statement that the issue is not sufficiently significant to justify a referendum, that will be challenged in the courts. The issue will not be whether to go ahead and complete the process of ratification but whether or not to have a referendum. It will be a bold Government who decide to go ahead and complete the process before the court has ruled on the significance point. What is extraordinary is that we should create a system where we are going to invite the court into the middle of our legislative procedures. If we have not finished here in Parliament, we will have to suspend if the significance test is being challenged.

[Lord Wallace of Saltaire]

My Lords, my understanding, and I stress that I am not a lawyer, is that it is the ministerial judgment that is subject to judicial review and not the parliamentary decision. I will clearly have to consult before I come back on Report on the exact meanings at stake, but my understanding is that parliamentary decisions are much more robustly resistant to judicial review.

[Baroness Falkner of Margravine]

I wonder whether I might help my noble friend a little, because the point brought up by the noble Lord, Lord Kerr of Kinlochard, is interesting. Our understanding of this issue is that the Minister would provide a statement setting out his reasons behind why the item under discussion either was or was not of significance, so the possibility of judicial review would therefore apply to the reasoning behind the Minister’s statement. In that case, it would seem that it would not be Parliament’s judgment under question but the Minister’s reasoning, presumably guided by legal advice.

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[Lord Wallace of Saltaire]

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

[Baroness Symons of Vernham Dean]

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

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

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

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[Baroness Symons of Vernham Dean]

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

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

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

[Lord Wallace of Saltaire]

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

[A noble Lord]

That was years ago.

[Lord Wallace of Saltaire]

It was years ago, as the noble Lord says, but every time that I questioned it in opposition I was referred back to that statement. It says that on a number of occasions, there are a number of blurred edges to the constitutional relationship between the United Kingdom and these islands. I have scars on my back about this. On a visit to Jersey two years ago, I questioned whether the current constitutional relationship was sustainable in the light of globalisation in financial and other arrangements. I was subjected to attacks for a week in the local press, the best of which suggested that both my wife and I were French spies, so attempting to clarify the relationship can get one into deep trouble. I do not recommend that we go too far down that road.

If a treaty were to affect Gibraltar alone, we would certainly have some interesting questions but it is difficult to imagine a situation in which such a treaty change might happen. As the noble Baroness rightly suggests, there is a range of issues where the different, semi-independent entities around the European Union are affected. Monaco, Andorra and the départements and territoires d'outre-mer, or DOM-TOM, have a rather different relationship with the European Union from ours. As the noble Baroness will recall, we chose to encourage our overseas territories to fund themselves through becoming offshore financial centres rather than getting them to a closer association with the EU so that others could fund them. That might possibly have been a mistake but it is where we are.

[Lord Davies of Stamford]

I think that I heard the Minister say that if an issue affected Gibraltar alone, some very interesting questions would arise. That implies that the Minister wants to leave the legislation as it is currently drafted without those interesting questions, as he describes them, being addressed. Surely he would agree that it would be completely barmy for the people of the United Kingdom to have to vote on a referendum on a matter that affected Gibraltar alone. So why can we not simply change the text of the Bill in a common-sensical way so as to exclude that possibility completely? It would be very easy to do.

[Lord Wallace of Saltaire]

My Lords, I think that this is the point where I should refer to Protocol 3 to the 1972 treaty of accession to the European Union under which Gibraltar chose to become a member of the EU and the other Crown Dependencies chose to become non-members of the EU but with a number of associated areas. That is another complex area. I find it impossible to envisage a situation in which there would be a treaty change that applied to Gibraltar alone. Ultimately, this is a hypothetical question, but I see that the noble Lord wishes to pursue it further.

[Lord Davies of Stamford]

I ought not to be satisfied by that; when we are drafting legislation in this place, we should try to make it as complete as possible, just as one should with any legal document. We are after all talking about the laws of the land. The Minister may be brave enough to say that he himself cannot anticipate this possibility, but we know that possibilities can arise that were never anticipated even by the most brilliant minds. Surely we should just have legislation that makes it clear that there would never be the absurdity of the people of the United Kingdom having to vote in a referendum on a matter that affected Gibraltar alone.

[Lord Wallace of Saltaire]

My Lords, I have scars on my back from the extent clause. I have tried on previous occasions to raise the question of the extent clause and the conditions under which UK legislation applies to the Crown dependencies. This is a very arcane area.

[Lord Hannay of Chiswick]

My Lords—

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[Baroness Butler-Sloss]

My Lords, I do not want to strike a note of discord with the Minister or indeed with the noble Lord, Lord Hannay, but the noble Lord, Lord Davies, has a point. If you read Clause 2(2)(a) as perhaps a court might read it, there is the possibility—however remote, as the noble Lord, Lord Hannay, says—that in future something might happen that affected Gibraltar but did not affect the United Kingdom. As it reads at the moment, the UK would have to have a referendum. That is my interpretation of the paragraph.

[Lord Wallace of Saltaire]

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

[Baroness Symons of Vernham Dean]

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

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

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

[Lord Wallace of Saltaire]

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

[Baroness Symons of Vernham Dean]

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