The Reform Treaty, or Treaty of Lisbon as perhaps I should get used to calling it, is big news again, as the European Union (Amendment) Bill to give effect to it has its second reading today. Here are the explanatory notes. Vaughne Miller’s research paper for the House of Commons library is helpful too, and contains some critical commentary on what’s in the bill, and what’s left out.
At first glance, it seems to me minimalist in one sense – although not all its clauses are strictly necessary for the UK to ratify the treaty. It’s minimalist in the sense that it does as little as can sensibly be done to give the treaty legal effect in the UK: it merely amends the European Communities Act 1972 rather than, say, replacing it with a more up-to-date European Union Act. There’s still some old, out of date guff in the 1972 Act about customs and agricultural levies, if I remember right, that might have been cleared away – but haven’t been.
What the government is up to, I think, is to present the bill in a way that gives the impression that this is just one more amending treaty, like Nice or Amsterdam, and that the new EU – which is arguably a new organisation, created at Lisbon – is just the same one that was founded at Maastricht. The presentational aspect of the bill seems to me vital, as it has always been since we joined – section 2(4) of the 1972 Act was I think a masterpiece of disingenuous and misleading draftsmanship, the boring pianissimo bit between the third comma and the semicolon making the most radical effect of any legislation in our modern constitutional history. So, spun legislation is nothing new when it comes to Europe, but I’d love to have seen a copy of the FCO lawyers’ instructions to the Parliamentary draftsman on this amending bill.
The non-necessary parts of the bill relate to Parliamentary control over the new treaty amendment procedures brought in at Lisbon – in fact they’re politically necessary, though legally dispensable. Plus there’s provision for updating terminology in domestic legislation, from EC to EU.
Clause 2 is the legal meat of the bill – it would make European law as amended at Lisbon part of our domestic law. But I agree with the implication in the research paper that the way the bill excludes from domestic law any provision on the new treaties in so far as it could be applied in relation to the Common Foreign and Security policy might have some unexpected effects as far as trade and development policy is concerned: if decisions in those areas flow from CFSP policies, UK firms and individuals might end up not being bound in UK law by them. But that’s all nerdish stuff of course and no doubt the drafters know what they’re doing better than I do. They probably do.
The research paper suggests clause 8 could be amended to provide for a referendum – I wonder whether, as a strict matter of Parliamentary procedure, that’d be outside the scope of the bill. I note that the critical clause 2 is designed simply to come into effect on Royal Assent. But the government’s said it will make sure a debate on a referendum can take place, so an amendment that would require one must be possible.
Interesting.