APPENDIX 1: EUROPEAN UNION (AMENDMENT)
BILL
Memorandum by the Foreign and Commonwealth Office
1. This Memorandum describes the purpose and
content of the European Union (Amendment) Bill, and explains why
powers have been included to make delegated legislation and the
nature of, and reason for, the procedure selected for the exercise
of these powers.
Background and purpose of the Bill
2. The Bill will amend the European Communities
Act 1972 and thereby enable the United Kingdom to ratify the Lisbon
Treaty amending the Treaty on European Union and the Treaty Establishing
the European Community ("the Lisbon Treaty"). The Lisbon
Treaty was signed on behalf of the United Kingdom on 13 December
2007. The main provisions of the Bill will -
- amend section 1 of the European
Communities Act 1972, by adding the Lisbon Treaty to the list
of treaties set out in section 1(2), with the exception of those
provisions of the Treaty that concern the European Union's Common
Foreign and Security Policy;
- make, and provide power to make, changes in Acts
and instruments made under an Act in consequence of the changes
made by the Lisbon Treaty affecting terminology;
- record Parliament's approval of the increase
in the powers of the European Parliament, as provided for in section
12 of the European Parliamentary Elections Act 2002;
- provide that any future treaty amending the principal
EU Treaties must be approved by Act of Parliament before the United
Kingdom may ratify it;
- provide that, where a draft EU decision is proposed
under certain listed Treaty provisions, the vote of the United
Kingdom may not be cast in favour of adopting the decision, unless
Parliamentary approval has first been given.
3. The Bill includes one power to make subordinate
legislation, in subsections (4) and (5) of clause 3.
Clause 2: Changes of terminology
4. Article 1(2)(b) of the Lisbon Treaty 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
(hereinafter referred to as "the Treaties"). Those two
Treaties shall have the same legal value. The Union shall replace
and succeed the European Community.
5. The Lisbon Treaty amends other provisions
of the TEU and of the Treaty establishing the European Community,
which it renames as the Treaty on the Functioning of the European
Union (TFEU).
6. The Lisbon Treaty also makes large-scale changes
in the numbering of the articles in the TEU and the TFEU. Article
5 of the Treaty and the Annex to which it refers provide for the
renumbering in accordance with a table of equivalences.
7. Clause 2 makes general provision to reflect
the consequent changes in terminology.
- A definition of "the EU"
is added in the European Communities Act 1972 (subsection (1)).
- References to the EU in an Act or an instrument
made under an Act are to include reference to the European Atomic
Energy Community (Euratom) where the context either permits or
requires such an interpretation (subsection (2)).
- References in an Act, or an instrument made under
an Act, to the original Communities - the European Community,
the European Coal and Steel Community or Euratom - or to those
European Communities collectively, are to be treated as referring
to the EU, or as including a reference to the EU, as the case
may require (subsection (6)).
- The Schedule, which sets out substitutions of
terminology in the European Communities Act 1972 and the Interpretation
Act 1978, is introduced by subsection (3).
Power to make other amendments as to terminology
Powers conferred on: the Secretary of State or
the Treasury
Power exercisable by: order
Parliamentary procedure: negative resolution
8. Subsections 3(4) and (5) enable the Secretary
of State or Treasury to modify Acts or instruments made under
Actsto "reflect changes in terminology or numbering"
arising from the provisions of the Lisbon Treaty. This power is
included since it would be impracticable to seek to include in
the Bill all the modifications which may be necessary to adapt
legislation to take account of changes in terminology and the
numbering of articles in the Treaties.
9. The scope of the power is limited to making
amendments in order to reflect changes, that arise from the Lisbon
Treaty, in terminology or numbering - ie. not to make changes
of substance. The reference in clause 2(4) to "other amendments"
relates back to subsection (3) and the Schedule which sets out
amendments of terminology in the European Communities Act 1972
and in the Interpretation Act 1978.
10. It was possible to include the amendments
in subsection (3) and the Schedule in the Bill. They illustrate
the type of amendment contemplated by the order-making power.
11. An order made under the power may include
incidental provision - clause 2(5)(a). The ambit of that aspect
of the power is limited by the general limitation as to scope.
12. The Department considers that the Negative
Resolution procedure is appropriate, notwithstanding the fact
that the power may be used to amend primary legislation, having
regard to the limited scope of the power. Parliament's ability
to scrutinise the provisions made under the power is not removed,
but the power is to deal with matters with which the Department
considers Parliament would not expect to be burdened, other than
exceptionally.
Power to make provision for entry into force of
Clause 3 (and Schedule)
Powers conferred on: Secretary of State
Power exercisable by: order
Parliamentary procedure: none
13. Subsection (1) of Clause 8 enables the Secretary
of State to provide by order made by statutory instrument for
Section 3 (and the Schedule) to come into force. Under subsection
(3), the other provisions of the Act come into force on Royal
Assent. It would not however be appropriate for provisions amending
existing United Kingdom legislation to reflect changes in terminology
made by the Lisbon Treaty to come into force prior to entry into
force of the Lisbon Treaty itself. This power will enable these
provisions to be brought into force at the same time as the Lisbon
Treaty.
14. Subsection (2) of Clause 8 provides that
an order made under subsection (1) may make provision generally
or for specified purposes only; may different provision for different
purposes; and may include incidental, transitional and consequential
provision.
15. This flexibility may needed were it necessary,
for example, to bring into force the order-making power in subsection
4 of Clause 3 earlier than the other provisions of that Clause.
It might also be necessary, for example, to make different provision
for different purposes where the legislation to which Clause 3
is to be applied contains different texts for different purposes.
Foreign and Commonwealth Office
March 2008
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