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Mr. Cash: Amendment No. 55 concerns the way in which Acts of Parliament or statutory instruments made under Acts of Parliament will be treated as referring to the European Union rather than to the Community, which is a similar issue to that covered in the previous debate. I do not intend to speak for more than a short time, because I raised most of the issues that I want to address in the previous debate. Furthermore, I encapsulated the fundamental question about the merger of the treaties in the speech that I made about an hour ago.
an Act or instrument made under an Act,
a reference to all or any of the Communities,
which relates to my point about the merger of the existing treaties. I objected to, remain concerned about and would oppose again, if I had the opportunity to do so, the intergovernmental arrangements under the Maastricht treaty, because they provide for European government rather than European trade. Irrespective of the question whether there is intergovernmentalism, the collapse of the pillars and the fact that the existing
treaties will be merged into a Union and will overtake the Community, my fundamental objection to the way in which the whole of the European Union is being relentlessly integrated is that the arrangements involve European government rather than European trade. I am in favour of an association of nation statesas a matter of fact, I would prefer to return to the European Free Trade Association.
In an Act or instrument made under an Act a reference to all or any of the Communities shall, in the application of the enactment or instrument after the passing of this Act, be treated as being or including (as the context requires) a reference to the EU.
That is a deeming arrangement, and it is effectively a retrospective arrangement. For both those reasons, I take exception to it, which is why I want it left out. It does include the European Communities Act 1972. As people pay more attention to the issue in future, as and when it arises, they will find that unexpected things will be done under the arrangements which will have consequences that people do not at present anticipate. My objection is that the provision is not only about terminologyit has certain substantial consequences. The issue links back to the merger of the treaties, to which I object, and relates to a deeming or retrospective provision, to which I take exception.
Stewart Hosie (Dundee, East) (SNP): In arguing that subsection (6) should be amended, is the hon. Gentleman not going through the same arguments as those on the previous group of amendments? Subsection (6) is a consequence of the treaty and this Bill. Although some of the hon. Gentlemans arguments may be right and he may be opposed in principle, is he not arguing about a consequence of the treaty and the Bill, and no more than that?
Mr. Cash: I do not wholly disagree with the hon. Gentleman, but the issue is different in respect of the arrangements under the earlier subsections. In discussing those, we were dealing exclusively with terminology; now, we are dealing with the deeming of an Act. The idea is that there is a retrospective deeming of the wording and that that involves more than terminology because it has constitutional implications. However, frankly, although it is objectionable, I do not think that the issue is of the same order of concern as the previous proposals relating to whether there should be an affirmative or negative procedure and the whole question of the modification of Acts of Parliament through statutory instruments. That is as much as I need to say on the provision so I shall sit down.
Mr. Francois: Amendment No. 55 seeks to delete subsection (6) from clause 3. As we have seen from our discussion of amendment No. 39, clause 3 gives legal force in domestic United Kingdom law to the Lisbon treatys collapse of the separate European Community pillars, which include among other things the single market and the common agricultural policy, into the European Unions new unitary legal identity, which will also incorporate the currently legally distinct common foreign and security policy and co-operation in police and criminal justice matters.
On the international level, terminological changes flowing from and supporting that fundamental change are made to existing European Community CFSP and police and criminal justice Acts brought in under the current treaties by article 5(3) of the Lisbon treaty. The laws will continue to have force until they are amended or repealed under the new treaty provisions. Article 5(3) of the Lisbon treaty provides that all existing references in those laws to the titles, sections and numbering of the treaties will be automatically understood to refer to the titles, sections and numbering of the treaties as amended by the Lisbon treaty.
Clause 3 seeks to amend UK legislation to keep it in line with those changes at EU level. To that end, subsection (6) seeks to provide for a blanket change in how terminology in existing UK law will thereafter be understood. Specifically, it says that any instance of European Communities shall be treated as a reference to the European Union.
As we have seen, those changes can have wide-ranging importance due to the fact that the new EU will be far wider than the existing European Community. In particular, the change in the meaning of all UK law currently referring to the European Communities could, depending on the UK laws in question, give domestic legal effect to common foreign and security policy provisions, despite the fact that the Bill excludes the CFSP from the definition given to the EU treaties in the 1972 Act. That is because the term EU alone is not restricted to the 1972 Acts definition of the EU treatiesas provided in clause 3(1) of the Bill, it includes everything under the EU exactly as it is provided for in the treaty on European Union at international level. That means the common foreign and security policy as well.
Our key objection to subsection (6) is that it is such a blanket provision, the true consequences of which we cannot know without examining every individual change that it would make to each of the affected EU laws. For that reason, the subsection is not only potentially somewhat dangerous but unnecessary because, as we saw during our debate on the previous group of amendments, clause 3(4) and (5) already give the Government the power to make orders to vary the terminology of any references in UK law that have not already been provided in the schedule to the Bill.
We have already stated that we believe that orders made under subsections (4) and (5) should be made only by the affirmative procedure so that we can better scrutinise the effect that each would have. I am disappointed that the House did not see fit to agree to that amendment, but the argument was nevertheless put and debated. Clause 3(6) is also a potential problem, as changes made under that provision are not even subject to the negative procedure.
Under clause 3, the changes in each instance are automatic and outside the scope of parliamentary scrutiny and are therefore unwelcome. Amendment No. 55 will improve the Bill without wrecking it, by allowing for all terminological changes in UK legislation following the Lisbon treaty, were it to be ratified, to be brought before Parliament for scrutiny, to ensure that the changes were really only terminological and were otherwise acceptable to the legislature.
Mr. Francois: My hon. Friend and I have both opposed the Bill from the outset. However, it is important to make it clear to the House, should we divide, that amendment No. 55 is a procedural one that would not wreck the treaty, although it would, for the reasons that heand I, pretty much in agreement with himhave outlined, strengthen parliamentary scrutiny. The amendment would not wreck the Bill per se, but strengthen the Houses powers in relation to the treaty.
Mr. Francois: May I go on to make a point about amendment No. 56? Modestly, my hon. Friend mentioned amendment No. 55, but did not go into detail about amendments Nos. 56 and 57. At the risk of infringing his copyright, I want to say a brief word about those amendments, which also stand in his name. Those amendments seek to improve clause 3(6) by limiting its blanket changes in terminology to those of Acts only. Like amendment No. 55, they would improve the Bill by limiting its unforeseen consequences, so we think that they also deserve support.
Clause 3(6) contains a blanket change to the terminology of wide swathes of domestic UK legislation without any detailed parliamentary scrutiny at all. Those alterations in terminology could have substantive effects. Amendment No. 55, which we on the Conservative Front Bench are minded to support should my hon. Friend wish to press it to a Division, seeks to remedy the situation by deleting subsection (6) in a way that would not wreck the Bill in its entirety. If the amendment is agreed to, important changes in British law could be brought before Parliament for specific approval. That would improve the Bill and deserves our support.
Mr. Clappison: I echo the opening remarks of my hon. Friend the Member for Stone (Mr. Cash). This does not seem to be as important as the previous provision as regards transparency, but there are still one or two questions in my mind. In the light of what my hon. Friend said, could the Minister give us a list of the types of Communities that are referred to in subsection (6)? We know about the European Coal and Steel Community and Euratom, but since it refers to
all or any of the Communities,
Will the Minister give us a sense of where this sits in the whole constitutional debate? Part of the purpose of the original constitution was to bring the same terminology into play throughout the various legal provisions relating to the European Community as it was, or the European Union, as it is now.
I am not sure whether the amendments tabled by the hon. Member for Stone (Mr. Cash) were intended to wreck the Bill, as he suggestsI think that he is being unfair on his amendmentsbut I acknowledge his avowed intention to wreck the Bill, and therefore the treaty.
Let me turn to the specific points that the hon. Gentleman raised in respect of amendment No. 55; he mentioned amendments Nos. 56 and 57 only in passing, although the hon. Member for Rayleigh (Mr. Francois) eloquently and pre-emptively amplified the unspoken sentiment behind them. The amendments attack the reality of the situationthat the Lisbon treaty replaces the Community with the Union. If the UK, with Parliaments approval, ratified the treaty, it would be senseless to seek to deny that reality.
Stewart Hosie: The Minister is talking about changes to terminology and numbering. However, the argument in favour of the amendments to subsection (6) appeared to be that if we rename the Communities as the Union, that will somehow give authority or precedence to the EU, particularly in relation to the common foreign and security policy. That would make it constitutional and would therefore raise certain issues. What is the Ministers view on this matter, and does he believe that this change would, even on a single occasion, give precedence to EU law on common foreign and security policy matters?
Mr. Murphy: I am delighted to see the hon. Gentleman in his place and playing such an active part in our proceedings. I could not often say this: on occasion during this debate, the SNPs showing has been as large as, if not larger than, the official Oppositions Back-Bench showing. At the moment, it is half the number of Conservative Back Benchers, but half of two is one, and we are nevertheless delighted to see him.
As I am sure that the hon. Gentleman is aware, the CFSP is intergovernmental and does not apply directly in UK law; it already falls under the auspices of the EU, not the Communities. He can therefore be reassured on that point.
Mr. Clappison: Can the Minister tell us what would be the legal position in the Communities under the provisions of these treaties if the Union seized on a foreign policy issue and was determined, by unanimity or by the procedures involving qualified majority voting, to take a particular course? Can the United Kingdom then legally take a different course under the provisions of these treaties?
Mr. Murphy: I will not be tempted to stray too far down that path, Mrs. Heal, because you would rightly prevent me from doing so. On the specific point, that issue would not arise because strategic decision making on foreign policy is by unanimity. We would not need to block such changes through a legal procedure, but we would do so politically by not giving our agreement in a unanimous process.
Mr. Cash: I said that there were aspects of the other debate that I did not want to replicate in this one, but that does not mean that I thought it was anodyne, and I will tell the Minister why. The explanatory memorandum, which gives the Governments explanation of all this, says:
Article 1(2)(b) of the Treaty of Lisbon inserts in Article 1 of the Treaty on the European Union (TEU) a new third paragraph as follows:
The [European] Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union...Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.
The First Deputy Chairman: Order. I appreciate the hon. Gentlemans comments, but they are rather lengthy for an intervention. He will have an opportunity shortly to wind up the debate and explain his point further.
The provision that is the focus of amendment No. 55 is, as the hon. Gentleman acknowledges, perhaps not anodyne, but less significant than what we discussed earlier. Clause 3 provides that after the passing of the Bill references to the Communities in UK law should be read as references to the Union. That is a purely technical change. In response to the hon. Member for Hertsmere (Mr. Clappison) as regards subsection (6), the Lisbon treaty replaces the European Community with the European Union, so all existing legislation that refers to the European Community, to the Community or to the Communities needs to be updated to reflect the changes in terminology, and that is clearly the intention of the subsection. Amendment No. 55 would delete that provision altogether. In the light of what I just explained to the House about the purpose and effect of clause 3(6), I cannot see that the amendment makes any sense whatsoever.
Amendments Nos. 56 and 57, taken together, would mean that while the type of consequential change that clause 3(6) makes could be made in respect of primary lawthat is, Acts of Parliamentthey could not be made in respect of secondary law, which is the bread and butter of much European business.
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