European Union Bill

The new clause moved by my hon. Friend the Member for Witham (Priti Patel) raises important issues, and it is right that we should devote some time and attention to her arguments today. I share a large number of the concerns that she expressed, and I welcome her wish to see much more transparency and clarity in the way in which the European Union operates. Having said that, I shall argue that the method proposed by my hon. Friend in her probing amendment is not necessarily the best one to secure those objectives. I shall deal with the main components of the new clause in turn and explain why, although I share many of her concerns, I do not think that the proposal as drafted is the best vehicle to deliver those goals. Let us look first at how to police the boundaries of European competence. I share the anxiety expressed by my hon. Friend, and I believe that this is the mischief that subsection (2)(b) of new clause 7 is intended to address. That subsection requires that a list of any powers or competences transferred from the UK to the EU under the terms of the treaties in the previous 12 months, which have or have not received specific authorisation under any provisions of part 1 of the Bill, be included in the annual report. The treaty position is clear. A competence should be transferred from the UK to the EU only if there is a treaty or treaty amendment unanimously agreed by all member states using the ordinary revision procedure, whereby we have a continuing power of veto. Power, as defined in the Bill, is changing the treaty to give an EU institution or body the power to impose a requirement or obligation on the UK, to impose sanctions on the UK, or to abolish what are defined in the Bill as significant vetoes. Given that those changes to competence or power are covered by the referendum lock as set out in the Bill, there ought to be no possibility of the need for any entries at all in the report under subsection (2)(b) because competence cannot lawfully be transferred by any other means. What lies behind my hon. Friend's argument, I think, is a concern that competence may be extended in ways other than formal treaty change. It is important to try to distinguish the issues. There are cases where the EU has competence—we may argue about whether it ought to have such competence, but that competence has been granted by one or other of the previous treaties—but where the UK has particular views about how the European Union should legislate on the basis of that competence. We may believe that a particular measure is unjustified on grounds of subsidiarity, or that the costs of a particular measure are disproportionate to the benefits being claimed. I offer the Committee an example. We do not dispute that the EU has competence to legislate on the terms and conditions for pregnant workers, but we have very strong views about the content of the particular proposal that is on the table, and we successfully built firm opposition in the Council to the European Parliament's approach, which has effectively brought those negotiations to a standstill. At heart, that is not a matter of competence; it is a matter of policy. Those matters are debated carefully in the discussions about negotiating strategies that take place in the European Affairs Committee of the Cabinet, and they are also covered in the explanatory memorandums that we as a Government submit to Parliament. There are other areas where there are concerns about whether a Commission proposal for new EU legislation or action oversteps the boundaries of existing EU competence. Again, the Government rigorously assess every proposal coming out of Brussels to ensure that it falls within the scope of competence and that the treaty base put forward by the Commission is justified. To give another example, we have been rigorous in asserting our position with regard to matters to do with the EU's eternal competence. Let us look at the External Action Service and consular work. We have firmly restated the treaty position that the EAS has no formal role in consular work, and should support it only by facilitating co-operation and the co-ordination of member states' actions. The competence for consular functions remains with member states. We have made it clear to Baroness Ashton and to the Commission that we would oppose Commission proposals for the EAS to have a direct role in providing consular assistance or in any other way seek to expand the institutions' role beyond the competences set out in the treaty. As a further example, at the Cancun UN conference on climate change, we insisted on prior agreement on when the presidency and the Commission would be authorised to represent the position of the member states, and the forms of words that they would use when doing so. We did that in order to safeguard the position that competence remained with the member states and had not been given exclusively to the institutions of the European Union. In the last resort, if we considered that a proposal went beyond the competence of the EU, we would challenge it during the legislative process and, if necessary, at the European Court of Justice. One of the reasons I hesitate to endorse an annual report is that I think what the Government should be doing is to make clear their views on competence as they affect particular measures whenever those measures are brought forward. If we adopted the proposed annual report, there would be a risk of Whitehall saying, ““Let's wait for the 12 months to elapse for the annual report.”” My hon. Friend will probably have received some parliamentary answers; when I was a free spirit, I used to get parliamentary answers saying that the information would not be made available now, but if I wanted to hang on for six months, it would be made available in that Department's annual report, or when a promised review was published. I would not like us to get into that situation with regard to these matters. I have asked that every explanatory memorandum sent to Parliament should not simply state what legal base the Commission has given to it, but give some assessment of the suitability of that legal base. We need to be much more forward-looking and smarter. Right across Whitehall, we must pay more attention to the Commission's forward work programme, so that we can identify up front any potential issues of concern over competence creep at an early stage, preferably even before the publication of a proposed directive or other measure. That is the way forward for continuing work in government to scrutinise every proposal on competence grounds, and much more openness and activity in Parliament as well.