European Union Bill

My noble friend’s amendment addresses a situation that I regard as a nightmare, in which not merely ministerial decisions in an executive capacity are open to judicial review—something that we have been used to in our constitutional practice for the last generation or so—but also a decision by Parliament. As I understand the present situation and as I read the Bill, were it to become an Act a ministerial decision to approve a treaty change under the significance rule without going to a referendum would nevertheless be a decision by Parliament, because Parliament would have to approve and ratify that treaty change. Parliament would decide that it was able to do that without a referendum. It would not be a ministerial decision. Quite clearly, if there was a ministerial decision to go the referendum route and not use the significance rule, that would be a ministerial decision, but it would immediately be ratified by Parliament, as I read Clause 2 of the Bill. Clause 2(2) says: "““The referendum condition is that … the Act providing for the approval of the treaty provides that the provision approving the treaty is not to come into force until a referendum about whether the treaty should be ratified has been held””." It is quite clear that the first decision of a Minister would be not to use the significance clause but to go to Parliament. Parliament would pass a Bill, which would come into force as an Act only when a referendum had been held. It would again be Parliament’s decision to have the referendum. As I understand it, it would be Parliament’s decision either to have or not to have a referendum. As is the present position, in all cases Parliament would have to endorse or ratify an agreement that we in some way change the treaty or add to the competencies of the Union. That is the position under the Bill at present and the position if it were amended as we tried to amend it earlier this afternoon. That means that my noble friend’s Amendment 3 would apply in a situation in which Parliament had taken a decision. What was justiciable—the subject of a judicial review—would be a parliamentary decision. Surely that would be quite contrary to the Bill of Rights. To me, it would be a nightmare prospect and I imagine that that would be the case for many noble Lords on both sides of the House. It would be an almost inconceivable extension of judicial authority, way beyond anything that has ever been foreseen by the judiciary at present. Does the Minister agree with my interpretation and think that there is a prospect of a judicial review of what would be a parliamentary decision? Does he agree with me that we should do everything possible to exclude a priori any such possibility?