European Union Bill

My Lords, I am grateful to those noble Lords who have sought, through the tabling of these amendments and in Committee, to clarify the spirit of the provisions in the relevant clauses of the Bill by tabling all but one of the amendments before us in this group. I am also grateful to the noble Lord, Lord Liddle, who has just indicated that he is moving his amendment formally in order, quite rightly, to elicit from the Government our case for the amendment that we have tabled within the group. As my noble friend Lord Wallace made clear in Committee, it has not been and nor should it be the Government’s intention to tie the hands of Ministers and their officials who negotiate assiduously in the development of European Union legislation in order to protect and maximise the UK’s interests and priorities. The fact is that Ministers and officials have participated constructively for many years in the earlier stages of the development and negotiation of various EU measures, and nothing in this Bill will prevent that from continuing in the same way. When it comes to the point at which the final decision is taken in the European Council or the Council, what the provisions of the Bill are designed to do is to prevent a Minister from voting in favour of a treaty or other measure specified in Part 1 at this final stage, or otherwise allow the adoption of a treaty or measure to happen, unless and until he or she has the approval specified in the relevant clause of the Bill. As we know, this may be an Act of Parliament or it may be an Act and a referendum where there is a transfer of competence or power. The Bill does not prevent the Government from signing up finally to and participating in anything at the EU level, but Ministers would first have to have the support of Parliament and, where necessary, of the British people before doing so. The amendment tabled in my name in the Marshalled List makes the position crystal clear, and I hope to the satisfaction of noble Lords. The effect of the amendment will of course govern the use of the phraseology we are concerned with throughout the whole Bill, and therefore not oblige us to table a series of consequential amendments because this change to Clause 1, which is interpretive, will govern the whole Bill. As my noble friend Lord Wallace explained in Committee, the words we are concerned with, ““or otherwise supporting””, are included to make clear that, at the point of the final and formal decision in Council or the European Council, a Minister would be unable to allow a measure to be adopted in Council or the European Council through means other than a positive vote, which under this Bill would have to be preceded by the necessary national procedures—namely, an Act and a referendum, if required. Articles 235(1) of the Treaty on the Functioning of the European Union and Article 238(4) make clear that abstentions at the point of final and formal decision in Council do not serve to block, but rather are treated as support for the adoption of a proposal requiring unanimity. Therefore, letting a measure through by abstention in the Council and then claiming by way of excuse or explanation, as it were, that although it transferred competences or powers and should have had national approval somehow it slipped through and Ministers could not help it, would not be allowed. In addition, as many of your Lordships know, in Brussels matters often do not proceed to a formal vote. The chairman may just seek the sense of the room, and if no one dissents, take it that the proposal has been finally agreed unanimously. It is then ticked and it goes through. That could happen only after national procedures, which would require parliamentary approval, while if competences and powers are being transferred, it would of course require a referendum. So the phrase ““or otherwise supporting”” seeks to ensure that Parliament and the British people can be confident that there is no possibility that any inaction on the part of the Government of the day could allow a measure to be finally decided and agreed without the proper approval of Parliament or the people or, indeed, both. To allow a measure to be adopted in such a way would represent a sleight of hand that would cheat both this Parliament and the public out of their rightful say. My noble friend also made the point that, in this way the Government were replicating the phrase used by the 2008 Act, which was introduced by the previous Government when Parliament was approving the ratification of the Lisbon treaty. However, we accept the point—made, I think, by the noble Lord, Lord Davies of Stamford—that, although that was the position before, there is no reason why we cannot improve the drafting of provisions from the past, as indeed we can improve on much else that went on during the past Government and seek to do so. We have reflected further on this point, as we have on all the amendments tabled in Committee, as we should. For the reasons I have given, we have tabled a government amendment to spell out, in the interpretation in Clause 1, exactly what is meant by ““or otherwise supporting”” and to explain when and where it applies: to wit, that it is only at the final and formal stage in the Council, or the European Council, that the bar on voting for or abstaining on—in other words, otherwise supporting—measures applies, unless or until there is parliamentary and, where necessary, public approval, in which case of course the support could go forward. We feel that providing this amendment to the definition provides the clarity that noble Lords were seeking in their amendments. It spells out unambiguously the limitations on Ministers and in doing so makes clear—and I make clear now—that this and future Governments may negotiate proposals in future in the same way as they do now and they should seek the views of the scrutiny committees of both Houses in the same way as they do now and undertake any other existing national approval procedures that are required before finally agreeing to a proposal in the European Council or the Council. That is the position. I hope noble Lords will accept that clarifies the concerns we all had in Committee on this matter and therefore I will beg to move the Government’s amendment. This will confirm to noble Lords that we have heard and addressed their concerns. I ask the noble Lord to withdraw his amendment, which seeks an exactly similar effect.