European Union Bill

The hon. Gentleman has the right intentions, but the new clause would not achieve quite the purpose that he and my hon. Friend the Member for Daventry intend. It would have some unintended and unwanted consequences as well. Let me explain why I consider that to be the case. As I said at the outset, any proposals under the four treaty articles covered by the new clause would not constitute a transfer of power or competence from the UK to the EU, because the EU's ability to act in those ways is already provided for by the treaties. Those decisions are not what the Government consider to be ratchet clauses, so we do not believe that such measures should, as a matter of policy, be subject to the controls provided for within the measure. Furthermore, proposals for EU secondary legislation under articles 82(2) and 83 fall within the scope of our opt-in to title V under protocol 21 to the Lisbon treaty. We have already undertaken to review the procedures for parliamentary scrutiny of the use of the opt-in to ensure that Parliament has an increased say. I spelled that out, in outline, in my written ministerial statement of 20 January. For the future, we have made it clear in clause 9 that the use of the ratchet clauses in some of those articles should ensure that any British participation in such measures by virtue of our opt-in should be preceded by the approval of both Houses of Parliament, and that our agreement to the final measures proposed should be preceded by parliamentary approval by Act of Parliament. We believe that that represents a significant step forward in enhancing the controls of the House on those justice and home affairs ratchet clauses while maintaining the same proportionate and sustainable approach that we have sought to take with all other parts of the Bill. Furthermore, since three of the four treaty provisions that are the subject of the new clause are in the area of freedom, security and justice, any such decisions by a British Government to opt in to proposals for EU legislation would themselves be subject to the UK's opt-in protocol. One way in which the Bill will increase public accountability is by providing that any proposed treaty change to give up our freedom not to take part in justice and home affairs by removing our opt-in protocol would require a referendum first. I am not arguing that the current arrangements for scrutiny are perfect—I think I made that clear earlier in our proceedings—nor am I arguing that the new clause is unnecessary for that reason. In my written statement of 20 January, I outlined the proposals for further enhancements of parliamentary scrutiny arrangements for all areas of freedom, security and justice opt-ins. I will not go into detail at this stage—I think that most Members of the House who are present are familiar with the content of that written statement—but if the new clause were adopted, in addition to the enhanced security measures on JHA that I proposed in January, there would be a practical implication—that in some cases Parliament would be required to look at the same issue more than once: first, when considering whether to opt in to a measure under one of those legal bases, then when considering whether to apply the emergency brake in each case. There would even be the possibility of a third examination of the same measure if the emergency brake provisions were to be used by the UK, or indeed any other member state, and there was then agreement at the European Council to refer the matter back to the Council of Ministers for the negotiations to continue based on the ordinary legislative procedure. I simply do not think that that multiplicity of debates and votes in Parliament would be a good use of limited parliamentary time. The tests set for the emergency brake in the treaties are quite high. For that reason, we should hesitate before agreeing to a new clause that would require a mandatory parliamentary procedure for any of the measures covered by the four articles that it mentions. The test incorporated in article 48 of the treaty is that the emergency brake can be invoked where the measure"““would affect important aspects of its””—" meaning a member state's—"““social security system””." Under articles 82 and 83, the test is whether the measure"““would affect fundamental aspects of””" a member state's"““criminal justice system””." Those are high bars to leap, but it is important to note that it is for the member state—and the member state alone, not anyone else—to decide whether that test should be met. However, under the new clause, parliamentary approval would be needed before a British Government could consider whether the emergency brake should be used for any proposal for a measure under any of the treaty provisions that it specifies, no matter how small its potential effect on the UK. For example, co-ordination regulations are amended regularly under article 48 of the treaty on the functioning of the European Union to take account of changes in the various social security systems of member states. Many of those amendments simply do not have any practical effect in the UK—for example, a change in the name of a Dutch benefit or an update of a reference to German national legislation. I do not think that that is what my hon. Friend the Member for Daventry intends, but the new clause would result in both Houses of Parliament being obliged to consider whether it was appropriate to use the emergency brake in respect of an amendment to such co-ordination regulations in respect of other member states' national social security systems. I simply do not think that that is a sensible policy to adopt. Amendment 4, which was also moved by my hon. Friend, concerns a situation where in the future the UK might wish to take part in a measure under article 82(2)(d) or article 83(1) proposed following the use of the ratchet clauses in those treaty articles and decided by qualified majority voting. The amendment would ensure that we could not participate in such a measure unless Parliament had given its approval to do so through Act of Parliament. Clause 9 already provides for the use of these two ratchet clauses to be subject to the two-stage parliamentary approval procedure. First, a motion must be carried in both Houses unamended before Britain could opt in to a proposal to use either ratchet. Clause 9 then requires approval in the form of an Act of Parliament before we could agree formally to the decision in Council. I understand my hon. Friend's concern, which is that once the ratchet had been deployed and the UK had opted in to a subsequent measure already subject to QMV, we would be bound by those measures even if the final proposal were not considered desirable by the Government. However, I am concerned that the amendment may not deliver the result that my hon. Friend intends to achieve. Instead, the provisions in the Bill and in the package of measures that I outlined in January represent a more effective solution. First, if the UK formed part of a blocking minority preventing adoption of the measure, we could be ejected from the measure and other member states could proceed anyway without British participation, under the terms of article 3(2) of our opt-in protocol. This, as with all negotiations, increases the importance of effective UK participation in the negotiation and the development of a robust negotiating position with like-minded member states. Secondly, both the treaty articles mentioned in the amendment make provision for an emergency brake procedure. So if we objected to the proposed measure on the grounds that it would affect fundamental aspects of our criminal justice system, we would be able to request that the measure be referred to the European Council. That would cause the suspension of the ordinary legislative procedure. We recognise that the emergency brake must be invoked sparingly, and only if it meets the test laid down in the treaty that it ““affects fundamental principles”” of the United Kingdom's criminal justice system. The emergency brake would not therefore be appropriate if its use were simply designed to ensure that the UK would not be bound by a measure that was subject to QMV and had been negotiated by others, and which the UK Government decided they wished to opt in to at a later date. Thirdly—I do not want to labour the point again and again—I proposed on 20 January strengthened arrangements for parliamentary scrutiny of justice and home affairs matters. These provide a means by which to ensure much more intensive parliamentary scrutiny of the sort of measures that my hon. Friend has in mind, and to ensure that Ministers can be held to account and obliged to answer to parliamentary opinion in a debate and, if Parliament so wishes, a vote on the policy that they wish to adopt. Lastly, as my hon. Friend knows, where the UK's participation in a subsequent measure would depend on a post-adoption opt-in to one of the JHA ratchet clauses, or in other words in those cases where we had not yet opted in to the corresponding ratchet clause, the provisions in clause 9 ensure that an Act of Parliament would be required before the UK could participate in the subsequent measure. This would ensure that no Government could participate in a measure drawing upon a ratchet clause without having first to seek parliamentary approval for the ratchet clause itself. However, as the requirement for primary legislation would not guarantee that the UK could not remain bound by any subsequent measures subject to QMV after we had opted in, it does not seem sensible to legislate on this basis. I therefore urge my hon. Friend to withdraw the amendment. New clause 4 addresses the issue of the European Union budget. The Government give high priority to budgetary discipline and seek, with Germany, France, Finland and the Netherlands in particular, to ensure that the European Union budget should grow by no more than inflation in the next financial perspective. The Prime Minister, and the entire Government, consider that to be of the highest priority. I fear that the new clause as drafted would make it more difficult to achieve our budgetary objectives. It would hinder our work in a number of ways. First, new clause 4 is more restrictive than the position set out in the joint letter from my right hon. Friend the Prime Minister and the leaders of the other countries that I have mentioned. This is because new clause 4 rules out growth above inflation in all areas of EU spending. Negotiations on the next financial perspective will be complicated, long and difficult. We will need flexibility to shape various elements of the EU budget below the lower ceiling for overall spending that we aim to achieve, and to build alliances with other budget-disciplined allies. The new clause would place severe constraints on our ability to build such alliances. That in turn would risk isolating the UK in future negotiations and make it harder for us to achieve our overall objective.