The House of Commons today debates the European Union Bill, the most important measure in which is to prevent any further accretion of power to the EU unless approved by referendum. The Bill, significantly, also restricts the power of Ministers to act under the Royal Prerogative in approving draft decisions proposed by the European Commission without an Act of Parliament, where those decisions may lead to a ‘significant’ increase in the powers or competences of the EU.
The Bill is not perfect. Unsurprisingly, some of the drafting is poor (for example, current section 7 (4) (c) speaks of that “a decision under the provision of Article 64(3) of TFEU that permits the adoption of measures which constitute a step backwards in European Union law as regards the liberalisation of the movement of capital to or from third countries.” I do not envy the first court asked to disentangle this colloquial gobbledegook.)
In addition, there is much to be said for the argument that the Bill closes the stable door after the Treaty of Lisbon has bolted. The Government’s position on this – that the Treaty had become law before the general election – is correct to a point. Yet, whilst no consideration appeared to have been given to an advisory referendum on the fresh powers of the EU to provide the Government with a fresh negotiating position, the political reality is that such a referendum was impossible under this Coalition.
In these circumstances, this Bill represents real progress for those of us who believe the EU’s power has increased, is increasing and ought to be diminished. Its provisions are comprehensive and include powers increased not only through extensions to exclusive EU competences but also to ‘shared’ competences. It regulates transfers of power in every area of EU authority. It is, of course, the case that a future Parliament could repeal the Act before transferring sovereignty. The reality, though, is that it would be politically impossible for a Party to stand for election on such a platform.
The objection of the Conservative rebels is that the Bill would allow the courts, not Parliament, to determine whether a Minister was justified in affirming that a measure did not make a ‘significant’ difference to the relative power of the EU. Their proposal is that Parliament should be the final arbiter of such questions.
Whilst superficially attractive to those supporting Parliamentary sovereignty, this objection misses the point completely. The point of the Bill is to prevent future governments – who in most cases have an almost comprehensive control over the House of Commons through their whipped majority – from transferring sovereignty. Were Parliament given the unfettered power to approve such Ministerial pronouncements, the Act would be futile. Any Government wishing to approve such Treaties or measures would be able to use its majority to ensure they never need be approved by referendum. We have seen in the Governments of Blair and Brown how grossly duplicitous governments can be over promises relating to European policy.
Further, the provision allowing the courts to scrutinise such ministerial pronouncements is not novel. It is a mirror of similar provisions in the Human Rights Act, allowing the Courts to determine whether a ministerial pronouncement – that a Bill is compatible with the European Convention on Human Rights – is or is not correct. Nor does it erode Parliamentary sovereignty as it is the review of an executive statement, albeit on the provisions of a Bill before Parliament. My only suggested amendment is that the Supreme Court be authorised to review such Ministerial pronouncements. This would be novel, as the court is final court of appeal and has never before made fresh and unappealable decisions. However, such a decision would be so important that it would inevitably be appealed to the Supreme Court in any event; and it is surely right that only the largest panel of the highest court in that land should be able to make such momentous decisions.
This Act truly entrenches Parliamentary sovereignty. It prevents Parliament from eroding its own sovereignty without the undoubted consent of the People. It is one in the eye for the European Union and marks the beginning of our struggle to retain our independence. It deserves to be supported.