Lord Leach of Fairford: The European Union Bill urgently needs to be amended to prevent the steady mission creep of new EU laws and accretion of powers

Lord Leach of Fairford is chairman of Open Europe whose analysis and recommended amendments to the Bill are to be found here.

The Government’s European Union Bill will return to Parliament on Monday. The Bill is the best opportunity many MPs will have during the lifetime of this Parliament to increase their influence over Britain’s relationship with the EU. For decades, Parliament has seen its position weakened through successive EU Treaties, in turn undermining national democracy and people’s faith in politics. 

This Bill would, with some important amendments, not only grant people a say in any future treaties (through referendums) but also do much to re-establish Parliamentary control over EU laws and moves to transfer powers from Westminster to Brussels.

However, as it stands the EU Bill has some loopholes which urgently need to be plugged if it is to withstand the steady mission creep of new EU laws and accretion of powers. MPs have tabled a series of amendments that would go a long way to address these leaks. Open Europe has set out the most important ones which MPs from across the political spectrum should support as a matter of priority.

Justice and home affairs is the field where the EU gained the most competence under the Lisbon Treaty. As the German Constitutional Court pointed out in its authoritative ruling on the Treaty, crime, policing, justice and immigration are all crucial areas for the ability of any nation to govern itself. Parliament therefore needs to regain full control over when powers in these hugely sensitive fields are being handed over to the European Commission, to MEPs and not least to EU judges. With some simple amendments to the EU Bill, such parliamentary control could be restored overnight. This would not mean that the UK will never sign up to an EU Justice and Home affairs law ever again – only that such decisions would be preceded by proper and transparent debates in Parliament and media. How can anyone object to this?

There is an important distinction to be made between future legislation in these areas and existing legislation.

On future legislation, the UK can decide on a case-by-case basis whether it wants to opt in or not. At present, the Government has too much discretion over which new EU justice and home affairs laws to sign up to, with no control from either people or Parliament. The controversial European Investigation Order, which the Government signed up to last year, is one example of an EU law that was passed without Parliamentary or public approval.

This is not an acceptable practice. With a handful simple amendments to the ‘referendum lock’, the Government would in future be required to get approval from Parliament (and the people in significant cases) before it opts in to a new crime, policing or immigration law. Ireland operates a similar system, so it is difficult to understand why it would not work in the UK.

On existing [italics] legislation: the Government must decide by 2014 whether a whole raft of EU police and justice laws agreed before the ratification of the Lisbon Treaty (in 2009) including the European Arrest Warrant, will continue to apply in the UK. Under this arrangement, if the Government opts out of any one of the existing laws, it has to opt out of the entire lot. If it decides to continue unchanged, ultimate jurisdiction over these laws will for the first be transferred from the UK courts to the European Court of Justice in Luxembourg.

In other words, 2014 will see a clear, binary choice between radically more or radically less EU control over the British legal system. Somewhat extraordinarily, this is a decision for Ministers at the moment. The EU Bill must be amended so as to put this hugely important choice to the people – or at the very least Parliament.

The significance of this choice – and the lack of democratic control over it – has so far been largely missed by the media and even by parliamentarians.

In addition, the provisions relating to the EU Treaties’ ‘flexibility clause’ – one of the clauses which allow the EU to extend its own powers without proper approval from elected chambers – should always require an Act of Parliament before the Government can agree to its use. There are further issues which should be addressed in order for the referendum lock to be made as watertight as possible. Open Europe has set them out in a briefing published this week.

A difficult and complex democratic exercise of this kind will always require fine tuning. The government should be congratulated for attempting to deliver one of its key manifesto promises, within the confines of a Coalition government. On their part, the Lib Dems should be given credit for understanding that this Bill is a key plank in the drive to restore some much-needed faith in the British political system and bring decisions closer to citizens.

It would therefore be wrong to couch any action to address these outstanding issues in terms of rebellion against the Government. On the contrary, our amendments would perfect the Government’s stated objectives – and should therefore be supported by MPs and the Government alike.