European Union Bill

My Lords, if there are no further comments from your Lordships on this issue, it remains for me to seek to allay the fears of my noble friend Lord Waddington on a matter which is undoubtedly complex. Indeed, as the noble Lord, Lord Liddle, remarked earlier, the entire area is complex because the interface between the powers and competences of the European Union and the powers, rights and obligations of the nation state members is vastly complex and, in some senses, is in a somewhat fluid state. Indeed, it is that very fluidity that gives rise to the unease for which I believe there is substantial evidence, and I speak as someone who has been involved for just short of 50 years—even before the UK joined the then European Community—in trying to see that the European Union works in a balanced, effective and beneficial way. Over the past few years, not only in this country but in many countries we have seen an appalling record of declining confidence in, support for and public consensus over the whole construct of the European Union. In my view, the EU has conferred considerable benefits on its members and on the peace and stability of the whole world in the past, and, provided it proceeds in a sensible way with good public support, it will do so in the future in a number of, although not unlimited, areas. This is a perfectly sensible aspiration and one which I think the Bill and its aims reinforce, although I realise that that is not understood or accepted by noble Lords opposite. The amendment would remove the provision setting out that future treaty changes which serve to codify practice under the treaties, in relation to the previous exercise of an existing competence, should not in principle require a referendum. My noble friend is concerned, as he says Members in the other place were during debates on the Bill, that codification could be used as a vehicle for transferring power or competence from the UK to the EU and that this provision might provide a loophole to allow such a transfer under a future treaty change without a referendum. If a treaty change is merely a codification of the previous practice of existing competence and nothing else in that treaty would fall within Clause 4(1) of the Bill, the Government do not think that a referendum should be required and the matter would proceed on that basis. Genuine codification—I emphasise ““genuine””—is not a transfer of power or competence. The EU competence in question already exists and the EU has already acted to that effect. Even if the UK did not agree to codify existing practice by means of a treaty amendment, the EU would be able to continue to act within the relevant existing competence. Therefore, in effect there would be no point in attempting to go down another path because the EU would already be doing what it was doing within the existing competence. An example of a treaty change which we would consider to be codification would be the introduction of a separate legal base for action previously taken to provide macro-financial assistance to some third countries. Article 352 of the TFEU, which we all know well, was used in April 2004 to provide macro-financial assistance to Albania. It was then used a further seven times to provide macro-financial assistance in a similar way to other countries. When the Lisbon treaty came along, it codified this use by providing a separate legislative base under Articles 212 and 213 of the Treaty on the Functioning of the European Union, which cover economic, financial and technical co-operation with third countries. That change was, in our view, a genuine and sensible codification of existing EU practice within existing EU competences. Under this Bill, such a codification would not have required a referendum, and indeed the whole discussion leading up to whether it would have triggered a referendum would have been in that light. Therefore, the codification would have gone ahead smoothly. Other aspects of the Lisbon treaty did of course involve competence movements and power transfers, and that is why under this Bill the Lisbon treaty would certainly have triggered a referendum—in my view, rightly so. The European constitution had many similarities with the Lisbon treaty and the previous Government were happy to see a constitution proposed on that, so their worries about ““undermining representative parliamentary democracy”” and other fine words that we have heard did not arise on that occasion. One has to be clear that, just because one proposes a referendum or a referendum on a set of proposals, that does not necessarily undermine parliamentary democracy. To claim that it does and to set it up as a polar argument between one extreme of Parliament and another extreme of consulting people in this internet age is, I believe, an absurd way of looking at the real situation. I return to the amendment. We come to the matter on which great legal minds have been playing over the past few minutes—whether a codification is a codification is a codification and objectively so, or whether only a genuine codification is an okay concept but in certain circumstances a codification might not be genuine. The Government take the view that ministerial decisions on codification are thoroughly tested and scrutinised to establish their genuine nature, as should be the case with all proposals for treaty change. The Bill provides for that careful examination. I have heard the views—they are very distinguished views backed by considerable experience—that the codification concept is clear-cut. However, like many things in life, not everything is what it seems. Some codifications may indeed be absolutely beyond peradventure clear-cut but others may have fuzzy edges, where it is not quite clear whether the codification is genuine or whether it could lead to treaty change and shifts in competence. That is precisely what my noble friend Lord Waddington is concerned about. Under the Bill, any proposed treaty amendment or Article 48(6) decision would require an analysis by the Government of whether it involved any one of the criteria in Clause 4(1). A statement to that effect, with reasons, must be laid before Parliament. The existence of the first part of Clause 4(4) on codification does not remove the obligation on the part of the Government to make this statement. Therefore, Ministers must still assess whether a treaty change transfers power or competence from the UK to the EU and explain the reasoning in a statement to the House. Where a Minister was of the opinion that a treaty change went further than codification of existing practice in an existing competence and therefore would transfer power or competence from the UK to the EU, Parliament would need to pass an Act and the British people’s consent would be needed. This would mean that, for reasons which I am not at all clear about, although the Opposition think that this could occur—I very much doubt it myself—there would be an expansion of the European Union’s powers through a treaty change, which in this case might be somehow related to a codification. Therefore, Parliament would have the opportunity to scrutinise the Minister’s assessment during the progress of the necessary Act and, as with all ministerial decisions, the reasoning would be subject to challenge by judicial review. There is thus a strong process, which I hope meets the concerns of my noble friend Lord Waddington. If a Minister decided that a treaty change was purely codification and that therefore no power or competence had been transferred and a referendum was not needed, the Government would introduce an Act of Parliament to ratify the proposal in the usual way with which we are familiar. I am therefore confident in saying to your Lordships that the provisions in the Bill will provide the appropriate level of scrutiny for treaty changes, subjecting genuine codifications to parliamentary scrutiny but not weakening the fundamental requirement that a referendum must be held before the UK can agree to any treaty change transferring power or competence from the UK to the EU. These are the prospects of continuous treaty change which noble Lords opposite have put forward. We have heard the phrase ““multiple treaty changes”” again and again. I can only repeat that a treaty change is a vastly complicated, long-term matter which most countries, most sensible negotiators and sensible Ministers in all Governments will go to great lengths to avoid in order to carry forward, within their existing, very extensive competences, the wide range of changes on the social front, on the judicial front, on a vast number of fronts which can be achieved without treaty change. The concept that continuous detailed treaty change has been part of the pattern of the EU in the past, the present or the future is completely false. That is not the way it has worked; it is not the way it does work; and it is not the way it will work in the future. In due course, I suspect that there will come a time when the European Union wants major reform and perhaps, in a few years’ time, a major treaty will lie ahead, but I do not know. It may be one that transfers competences or it may be one that reassesses certain distribution of powers and competences. That is in the future, but in the mean time, this continually depicted pattern of a multiple series of referenda is a complete fantasy and does not relate to what will happen. However, with the passing of the Bill, we are reminded that the dangers of a smaller trickle of competences and powers unnecessarily creeping to the European Union, against the wishes of the British people, would be checked. There would be great reassurance and a strengthening to the European Union and what we have tried to do over the years would be achieved. That is why I advise my noble friend to withdraw the amendment.