European Union Bill

Nigel Evans Excerpts

Wednesday 26th January 2011 Commons Chamber

[Chris Bryant]

May I just clear something up? I am not right honourable, although many hon. Members have recently referred to me as such. Many would doubt whether I am even honourable.

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

Order. I am not calling a Division on this one!

[Chris Bryant]

I do not think you are able to call one, Mr Evans.

The hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) seems to be arguing that we should adopt a French style of intransigence, permanently trying solely to defend the British interest. In the end, such an approach cuts off our nose to spite our face. I do not think that anybody here thinks that the double-sitting arrangement is sensible, and most French politicians would agree in private. If this country starts setting up barriers to try to make it more difficult to change anything in the European Union, other countries will do the same and we will end up keeping some of the anomalies and ludicrous elements of the European Union. That is why I oppose the clause. I would have dealt with all that in a short intervention on the Minister.

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[Mr Cash]

I beg to move amendment 53, page 6, line 41, leave out ‘(3) to (5)’ and insert ‘(3) and (4)’.

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

With this it will be convenient to discuss the following:

Amendment 26, page 7, line 7, leave out subsections (5) to (7) and add—

‘(5) This subsection is complied with if—

(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to support a specified draft decision and is of the opinion that the decision relates only to one or more of the following purposes—

(i) to make provision equivalent to that made by a measure previously adopted under Article 352 of TFEU, where that previous measure was adopted following the commencement of section 8 of the European Union Act 2011 and the draft decision relating to that measure was approved by Act of Parliament;

(ii) to repeal existing measures adopted under Article 352 of TFEU;

(iii) to consolidate existing measures adopted under Article 352 of TFEU without any change of substance, where those existing measures were adopted following the commencement of section 8 of the European Union Act 2011 and the draft decisions relating to those measures were approved by Act of Parliament; and

(b) each House agrees to the motion without amendment.’.

Amendment 43, page 7, line 7, leave out subsections (5) to (7).

Clause stand part.

[Mr Cash]

The amendments have been tabled by my hon. Friend the Member for Daventry (Chris Heaton-Harris) and myself, as well as several other Members, including my hon. Friends the Members for Aldridge-Brownhills (Mr Shepherd), for Harwich and North Essex (Mr Jenkin), for Wellingborough (Mr Bone) and for Northampton South (Mr Binley), and the right hon. Member for Belfast North (Mr Dodds) of the Democratic Unionist party.

We are dealing with a very broad provision in the treaty known as article 352, which is generally described as a flexibility clause but which has an ancient and controversial history. Even back in the 1970s, before I came to the House, when I was practising law, I was discussing a very controversial provision known as article 308, and I shall tell hon. Members why. When, in our legal processes and legislative procedures we pass laws, we do so on the basis of what is stated in an Act of Parliament and we consider the words. Some of the remarks I made in the previous debate on clause 7 about abstract principles are related to this issue. Ordinary statutes, particularly in the field of administrative law, frequently make certain provisions after a whole series of propositions in different sections. Right at the end, there is often an expression such as, “And all such measures as may be regarded as reasonably necessary to carry out these functions,” but they are very carefully constrained by the administrative court, and the tests are quite significant. If there is a catch-all provision that has the effect of enlarging the existing treaty arrangements, it is incredibly important to make sure that what is included can be justified and has proper authority.

In the context of legislation that comes to the House and thereafter affects the daily lives of the electorate, we already know, for reasons that I do not need to enlarge on, that the manner in which legislation is implemented could, in a nutshell, be one or two lines or a paragraph in a treaty that are equivalent to an entire Act of Parliament. With that comes a whole process of interpretation that is different from our own, because it is not necessarily precise and because it looks at purposes—it has a purposive quality. Then there are provisions relating to subsidiarity that generally are not adhered to.

When we are dealing with a specific treaty and considering its wording and range, we should ask, when it becomes part of UK legislation through section 2 of the European Communities Act, as enforced by the courts and their system of interpretation, how far and to what extent it was anticipated that the legislation being spelt out, even in a treaty, would result in certain consequences in terms of the precise policies that will emerge from the process. It is incumbent on us to implement the law, under section 2, but at the same time there is a great degree of collateral within which the actual provisions in a treaty are brought into effect, and there is also their effect on the people to consider. In many instances, people could not reasonably have been expected to know exactly how that provision would turn out in policy.

I happen to be a bit of a traditionalist and I think that when we pass legislation it should be consistent with policy making, but sometimes I think that my hon. Friends—I say this with great respect to them—are not necessarily quite as conscious when considering such issues about the direct impact of it all on the electorate, or about the degree of discretion that we are giving both to the European Union and to Ministers in implementing these sorts of provisions.

What is the effect of article 352? I shall explain my concerns about the Bill in relation to that wide-ranging provision, and I shall quote from article 352. It is important to set that out, as it is the framework for my general concern. Article 352 states:

“If action by the Union should prove necessary”—

that is a big question; who says?—

“within the framework of the policies defined in the Treaties”—

which have an enormously wide ambit, including what they involve, their purpose, nature and interpretation—

“to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously”—

that is important—

“on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.”

The article continues:

“Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament”—

not Ministers, though they have the right to determine whether or not they will apply the unanimity rule.

There is then a provision stating that where subsidiarity arises,

“the Commission shall draw national Parliaments’ attention to proposals based on this Article.”

The article goes on to say that such measures shall not entail the harmonisation of member states’ laws or regulations where the treaties say that there should not be such harmonisation. Finally, it states—this is important—that the article cannot serve as a basis for attaining objectives relating to foreign and security policy, and it imposes certain restrictions consistent with limits set out in article 40 of the Treaty on European Union.

That is what article 352 states. It is a very wide provision. It is certainly subject to unanimity by the Council. I therefore assume that my right hon. Friend the Minister will assure us that the veto would be used, were the existing treaties—wide and deep as they are and effective as they are on our constituents—to be amplified by the use of that extremely wide power. I should mention that a few years ago the European Scrutiny Committee went over to see the Commission and its legal advisers. We had a full report on the provision in question, which at that time was described as article 308.

My amendments would knock out the provisions that would enlarge the Government’s capacity to bypass—I use this language carefully—the principles on which I assume Parliament would want to insist. Because of the ambit of the measure, we should ensure that it is used as tightly as possible.

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[Mr Clappison]

I beg to move amendment 14, page 7, line 33, leave out from first ‘of’ to end of line 44 and insert

‘any existing or proposed measure under Title V of Part 3 of TFEU.’.

[The First Deputy Chairman]

With this it will be convenient to discuss the following:

Amendment 27, page 7, line 33, leave out from ‘measure’ to end of line 44 and insert

‘presented to the Council pursuant to Title V of Part 3 of TFEU, apart from a notification in relation to a measure that, at the time of the notification, would if adopted extend the powers of Eurojust to include the initiation of criminal investigations.’.

Amendment 99, page 7, leave out lines 34 to 36.

Amendment 98, page 7, leave out lines 37 to 44.

Amendment 47, page 7, line 44, at end insert—

‘(d) the provision of Article 83(2) of TFEU (harmonisation of criminal offences and sanctions) that permits the establishment by directive of minimum rules with regard to the definition of criminal offences and sanctions in an area subject to harmonisation measures by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question.’.

Amendment 28, page 8, line 1, at end insert—

‘(3A) Subject to subsection (3B), a Minister of the Crown may not vote in favour of or otherwise support a decision under Article 4 of the Schengen Protocol that would cause the United Kingdom to participate in further provisions of the Schengen acquis, unless a Minister of the Crown has given an oral statement to the Chamber of the House of Commons on Her Majesty’s Government’s intention to support the draft decision.

(3B) Subsection (3A) does not apply to a decision that falls under section 6(4)(k).

(3C) In subsection (3A), “the Schengen Protocol” has the same meaning as that given in section 6(5).’.

Amendment 29, page 8, line 1, at end insert—

‘(3D) A Minister of the Crown may not permit the United Kingdom’s participation in the final adoption of a measure building upon the Schengen acquis unless a Minister of the Crown has given an oral statement to the Chamber of the House of Commons on Her Majesty’s Government’s intention that the United Kingdom will participate in final adoption of the measure.’.

Amendment 30, page 8, line 3, leave out from ‘under’ to end of line 5 and insert

‘any of the following unless the draft decision has been approved by Act of Parliament—

(a) the provision of Article 77(3) of TFEU that permits the adoption of provisions concerning passports, identity cards, residence permits or any other such document;

(b) the provision of Article 81(3) of TFEU that permits the adoption of measures concerning family law with cross-border implications through a special legislative procedure;

(c) the provision of Article 87(3) of TFEU that permits the adoption of measures concerning operational co-operation between the authorities referred to in Article 87 of TFEU;

(d) the provision of Article 89 of TFEU on the operation of certain competent authorities of a member State in the territory of another member State.’.

Amendment 31, page 8, line 7, leave out from ‘measure’ to end of line 16 and insert

‘unless the notification in respect of the measure has been approved by Act of Parliament; but this provision shall not apply to a notification in relation to—

(a) a measure extending the powers of Eurojust to include the initiation of criminal investigations;

(b) a measure adopted under Article 81(3) of TFEU (family law) that determines those aspects of family law with cross-border implications that may be subject to the ordinary legislative procedure;

(c) a measure adopted under Article 82(2)(d) of TFEU (minimum rules on criminal procedure) that identifies a further specific aspect or aspects of criminal procedure to which directives adopted under the ordinary legislative procedure may relate;

(d) a measure adopted under Article 83(1) of TFEU (particularly serious crime with a cross-border dimension) that identifies a further area or areas of crime to which directives adopted under the ordinary legislative procedure may relate.’.

Amendment 34, page 8, line 16, at end add—

‘(7) A Minister of the Crown may not give a notification under Article 3 or 4 of the AFSJ Protocol that the United Kingdom wishes to take part in the adoption and application of a measure, or to accept a measure, to which this subsection applies unless—

(a) the notification is approved by Act of Parliament; and

(b) the referendum condition is met.

(8) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (7) as references to a notification.

(9) Subsection (7) applies to a measure that includes, at the time of notification by a Minister of the Crown under Article 3 or 4 of the AFSJ Protocol, the extension of the powers of Eurojust to include the initiation of criminal investigations.’.

Amendment 35, page 8, line 16, at end add—

‘(7) A Minister of the Crown may not give a notification under Article 4 of the AFSJ Protocol that the United Kingdom wishes to accept a measure to which this subsection applies unless—

(a) the notification is approved by Act of Parliament; and

(b) the referendum condition is met.

(8) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (7) as references to a notification.

(9) Subsection (7) applies to the following—

(a) a measure adopted under Article 81(3) of TFEU (family law) that determines those aspects of family law with cross-border implications that may be subject to the ordinary legislative procedure;

(b) a measure adopted under Article 82(2)(d) of TFEU (minimum rules on criminal procedure) that identifies a futher specific aspect or aspects of criminal procedure to which directives adopted under the ordinary legislative procedure may relate; and

(c) a measure adopted under Article 83(1) of TFEU (particularly serious crime with a cross-border dimension) that identifies a further area or areas of crime to which directives adopted under the ordinary legislative procedure may relate.’.

Amendment 39, page 8, line 16, at end add—

‘(7) In addition to the approval required in accordance with subsection (1) or (4), as the case may be, a Minister of the Crown may not give a notification under Article 3 or 4 of the AFSJ Protocol that the United Kingdom wishes to take part in the adoption and application of a measure, or to accept a measure, to which this subsection applies unless—

(a) the previous decision by virtue of which that measure is proposed or was established has been approved by Act of Parliament; and

(b) the referendum condition in relation to that previous decision has been met.

(8) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (7) as references to a previous decision.

(9) Subsection (7) applies to a measure proposed or established under Article 82(2) or 83(1) of TFEU by virtue of either—

(a) a previous decision, in which the United Kingdom does not participate, adopted under Article 82(2)(d) of TFEU that identifies a further specific aspect or aspects of criminal procedure to which directives adopted under the ordinary legislative procedure may relate;

(b) a previous decision, in which the United Kingdom does not participate, adopted under Article 83(1) of TFEU that identifies a further area or areas of crime to which directives adopted under the ordinary legislative procedure may relate.’.

New clause 5—Approval required in connection with Title V—

‘(1) A Minister of the Crown may not give a notification to which this subsection applies unless Parliamentary approval has been given in accordance with subsection (3).

(2) Subsection (1) applies in relation to a notification under Article 3 of Protocol (No. 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to TEU and TFEU (the “AFSJ Protocol”) and Article 4 of the Protocol integrating the Schengen acquis that the United Kingdom wishes to take part in the adoption and application of any measure proposed under Title V.

(3) Parliamentary approval is given if—

(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to give notification in respect of a specified measure, and

(b) each House agrees to the motion without amendment.

(4) Despite any Parliamentary approval given for the purposes of subsection (1), a Minister may not vote in favour of or otherwise support a decision under a provision falling within Title V unless the draft decision is approved by Act of Parliament.

(5) A Minister of the Crown may not give a notification under Article 4 of the AFSJ Protocol that the United Kingdom wishes to accept a measure unless the notification in respect of the measure has been approved by Act of Parliament.’.

[Mr Clappison]

We come to a new subject area, that of freedom, security and justice, which used to be known as the judicial and home affairs pillar of the EU. As the clause stands, it would require parliamentary approval for a UK decision to opt in to certain provisions in the area of freedom, security and justice. At the moment, as I am sure the Committee knows, the UK enjoys an opt-out in that area. Were a decision to be taken to opt in to one of the matters specified in clause 9, parliamentary approval would therefore be needed.

Three such matters are specified in clause 9(2). Generally, they seem to cover further developments in the field that are not specifically set out in the freedom, security and justice chapter, which is chapter 5 of the treaty of Lisbon. I should say that that is a lengthy chapter containing many matters. I think I can see the Government’s thinking, which is to cover further developments in European law and new ideas in the field of family law, criminal procedure and serious crime. I agree with that thinking, as far as it goes, because it means that opt-ins on those matters will require parliamentary approval.

It should be said straight away that that is an improvement on the current situation, in which there is no requirement for approval of any of the important matters specified in the clause. There will therefore be additional protection, if one wants to look at it that way, and there will certainly be an additional role for the House, which will be required to give its approval before the UK can opt in.

My amendment 14 would take matters further in a logical way, by making any chapter 5 opt-in subject to the same parliamentary approval that is required for the three matters specified in the Bill.

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[Several hon. Members]

rose—

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

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

[Chris Heaton-Harris]

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

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

In April 2010, the European Commission published a document delivering

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

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

“giving Eurojust powers to directly initiate investigations.”

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

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

Among other things, directive 2004/83-EC

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

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

Directive 2003/9/EC,

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

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

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

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

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

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

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

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

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

That is all pretty good.

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

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

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[Ms Stuart]

At the risk of being accused of encouraging the hon. Gentleman, I must say that when Ministers are terribly courteous it is usually an indication that we are not getting anywhere. The first rule of politics is that until they are rude, we are not getting anywhere. The real problem is that the UK Permanent Representative to the EU is politically unaccountable. My ultimate plea is to have the UKRep stand here once a week, as the Deputy Prime Minister does, and be politically accountable for the negotiations and deals that are done at Brussels. Until we have that, all this is—

[The First Deputy Chairman]

Order. The hon. Lady’s comments are going much wider than the amendments currently before us. I believe that there is sufficient meat in the amendments.

[Mr Cash]

I am grateful for that, Mr Evans, because otherwise the hon. Lady might have tempted me yet again. She knows my soft point, and she knows very well that it would not take me long to get going on that issue, either. But, she is right.

I have tabled a number of amendments, but I do not intend to press them to a vote, because we have had a thoroughly good debate, and I, like my hon. Friend the Member for Hertsmere, think that further consultation between the Minister, his officials, the European Scrutiny Committee and our Clerks might help to ensure that we get the maximum out of the provisions, even if they do not really measure up.

In any case, we know what happens in our votes; we have watched them now for about a week. On one occasion, we reached 45 genuine—as I call them— abstentions. By the way, Mr Evans, your name appeared on one list, but I said, “No, he’s Chairman of Ways and Means; this is not somebody you can count in.” Anyway, on parliamentary sovereignty we had between 45 and 50 such abstentions, which is quite a lot, but it is not anything like as many as the number of Members who rather agree with us in the broadest sense. I shall not go down that route, but what happens in votes is not very edifying. We do not win votes, because people are being told to vote in a way that is inconsistent with what they think, and that is another democratic problem.

Amendments 99 and 98 are mischievous, simply because they were tabled only to demonstrate my concern, which I have just raised, that opt-ins should not be allowed under any circumstances. On amendment 47, however, regarding the harmonisation of criminal offences and sanctions, my hon. Friends the Members for Esher and Walton, for Hertsmere and for Daventry are right. I am reluctant to adopt a default position, but for the purposes of debate I want to get out into the open something that concerns me, because the harmonisation of criminal offences and sanctions, on which I dare say books could be written, ought to be as restricted as possible.

Article 83(2) of TFEU, as I state in amendment 47,

“permits the establishment by directive of minimum rules with regard to the definition of criminal offences and sanctions in an area subject to harmonisation measures by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question.”

In a nutshell, I should like that to be one of those measures—from the written statement to which the Minister has referred—that ought to be discussed properly.

Let us think about what the harmonisation of criminal offences and sanctions affects and what its consequences are for the people whom we are elected to represent. If I cannot win the vote on my desire to throw out the whole measure, my minimum default position, however cynical and unhappy I am about opt-ins anyway, is to attempt to include it in the arrangements that the Government have provided.

Those are my thoughts on this group of amendments and on my amendments. If I sound a little concerned about them, I hope that Members will understand. As my hon. Friend the Member for Esher and Walton said, I see the provision under discussion as an enormous step. I am not sure that it is beneficial, because it assumes that there will be opt-ins. There are 30 or 40 of them, and there have already been eight in the past few months. The trend exists, and I do not see anything holding back the tsunami. Indeed, I see the tsunami being built up, and that is not in the interests of the democratic principles by which this House is elected.