European Union Bill

My Lords, in moving Amendment 3 I hope that I shall not stir up quite as many areas of difficulty as we dealt with in the previous marathon debate. I stress to the Minister who will answer the debate that this is essentially a probing amendment to ask about the role of a Minister of the Crown in dealing with treaty changes in the future, and about the role of Parliament and the way in which judicial review of ministerial decisions will work in practice. Under the Bill, a referendum would be required only if the Government of the day wanted to support a treaty change. That is clear. If the Government are not so minded, they can block the change at the negotiation stage in the European Union. The Government see this as a straightforward mechanism, but I would like to examine it a little further. The Government contend that if they were not in favour of any treaty change, such a block would be absolute because all types of treaty change that are subject to the referendum provisions would have to be agreed unanimously at EU level. The withholding of agreement on behalf of the United Kingdom would therefore mean that a proposal could not be part of any new treaty or form part of any treaty change. There would therefore be no referendum because there would be no such treaty change. This would apply both to treaty changes and to new treaties. Can the Minister explain how this would work? The helpful fact-sheet that the Government published earlier states that the Minister presenting the measure has to decide whether any treaty change transfers a power or a competence from the United Kingdom to the European Union. I hesitate to say a power or a competence in view of the discussion that we have just had—to which we will have to return—and the distinction that has been drawn will have to be bottomed out in the course of our discussions on the Bill. However, let us for the moment stick with either a power or a competence. The Minister, moreover, will have to decide whether the transfer amounts to one of significance. It is a powerful provision that the Executive are taking to themselves; it is not one that they will necessarily share with Parliament. That is my understanding, but if the noble Lord believes that Parliament will always share the decision he can put me straight on that. However, I wish to probe the point further. In making the decision, the Minister will be required to make a reasoned statement to explain the decision that he or she has taken and to explain why the change mooted is a significant change. Can the Minister be clear on this point? The fact-sheet states that the decision will be open to legal challenge through judicial view. However, all ministerial decisions are open to judicial review, so there is nothing special in that point. Will the decision be open to parliamentary challenge at the point the statement is made? The fact-sheet does not indicate that. On the timing of the parliamentary intervention, will the reasoned statement be made in Parliament? Will it be written or oral? In either case, will it be open to challenge in Parliament at the point that it is either written or given orally? If the Minister’s response is that such a reasoned statement is not open to parliamentary scrutiny and challenge at the time it is given, can he explain when and how—I quote from the fact-sheet—under Clause 4 of the Bill, "““Parliament would have the opportunity to scrutinise the minister’s assessment during the progress of the Act””?" How would that work? How would Parliament add a referendum at any stage, as suggested in the fact-sheet? What mechanism would Parliament have to deploy to trigger a referendum if it felt the Minister had got it wrong? Our own Constitution Committee accepts that ministerial statements would be subject to that ministerial review. At Second Reading there was a little confusion over that. The noble Baroness, Lady Falkner of Margravine, put a rather different point of view but, having reread it, it is clear that that is what is meant. That is the view that the Constitution Committee also took. Let us suppose that such a judicial review is mounted. For example, the Minister might decide that a treaty change is necessary but that it is not significant enough to trigger a referendum. Let us suppose that one of our colleagues, perhaps a noble Lord, decides to challenge that decision through judicial review—they could do it through a parliamentary position but let us stick with judicial review for the moment. Does the change that the Minister wants to see going through go ahead even if legal challenges are pending through the judicial review process, which may be mounted by a Member of either House or indeed a member of the public, or does the Minister wait until the legal proceedings have been completed before the change comes into force? This is potentially something of a legal minefield. As I think I mentioned at Second Reading, it will no doubt be grounds for endless wrangling in Parliament over the wording of a reasoned statement. I am sure that there will be those who want to challenge, by whatever means available to them, any decision not to have a referendum. Equally, on the other side of the argument, there will be those challenging the decision to have one. Add to that the legal route of judicial review and we really have what our own Constitution Committee describes as a really complicated and difficult position. We have already had ably demonstrated in your Lordships’ House a very different interpretation of the Bill in Amendment 1 from Clause 1(5). My point is that that was not necessarily just a political argument, although obviously politics is all part of this; it was an argument about the impact of Article 48(6) and what the legal position already is. Among the very clever noble Lords we have discussing these things are those who have a wealth of experience as senior civil servants and who are used to drafting, and others who have been Ministers in the EU and are used to negotiating. If we already have a demonstration of just how wide those interpretations can be, the questions that I raise here about the impact of judicial review are enormously important. I want to raise a political point, too. The measure has been described by our own Constitution Committee —on which sit members of the Minister’s party, the Conservative Party, my own party and the Cross Benches —as a measure that, "““hinders rather than helps transparency and accessibility in the law””." How does that help to address the disaffection which the Government believe is the trigger at the heart of the Bill and the fundamental basis for bringing it forward? I am not suggesting that a degree of disaffection does not exist—although it can be exaggerated—but question whether the measures do anything to address that disaffection. Will a measure that hinders rather than helps transparency and accessibility in the law worsen that disaffection rather than ameliorate it? I beg to move.