There are aspects to the European Union Bill, now before the House of Commons, that have received less attention than is desirable. For instance, there has been very little discussion of the fact that Part 2 deals with the Common Foreign and Security Policy.
Foreign Secretary Jack Straw has explained correctly that the common foreign and security policy is not something that was invented for the purposes of the Constitution. It was there at the beginning of the project in the fifties but was abandoned, as it was highly unpopular.
The process of formulating a common foreign and security policy or, at least, the structures of it, as the content still eludes our great statesmen, began with the Treaty of Maastricht and proceeded with every subsequent one.
To a great extent the concept will be finalized in the Constitution but, clearly, it was felt necessary to introduce extra legislation to deal with the subject.
Section 5 is entitled Implementation of common foreign and security policy and tells us that
"(1) The Secretary of State may by regulations make provision for one or more of the following purposes –The section goes on to deal with the creation of summary new offences and the methods whereby the Secretary of State may make regulations. These are our old friends the Orders in Councils, otherwise known as Negative Statutory Instruments.
a) Implementing an obligation of the United Kingdom created and arising by or under the common foreign policy provisions or a related agreement, or enabling such an obligation to be implemented;
b) Enabling the exercise of rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of those provisions or such an agreement;
c) Dealing with matters arising out of, or related to, such an obligation or such rights.
(2) The powers conferred by this section include power to amend enactments or subordinate legislation."
Negative SIs are published by order of the relevant Secretary of State and placed before each House, where they lie for 40 days unless somebody manages to initiate a debate and win it to reverse the Order.
This process is virtually impossible in the House of Commons, where even if such a motion is passed the Instrument goes to the relevant Standing Committee, where it is dealt summarily, committees being filled in proportion to the number of MPs each party has in the House.
In the Lords there is a possibility of praying against and Order and debates do happen. They rarely lead to anything. There have even been occasions when the government lied quite blatantly, saying that one House annulling an Order was inadequate and, therefore, the vote was ignored.
In certain cases, as the relevant section of the European Union Bill, the Secretary of State can avoid the distinctly non-onerous procedure altogether, if he can insert a
“declaration … that the urgency of the matter makes it necessary for the regulation to be made without [Parliamentary] approval”.The argument here would be that there are certain occasions, for example, an attack on the country when the government has to act fast and cannot wait for 40 days. In fact, this is a little disingenuous. There is nothing in the rules that prevents the government to implement the Order in Council, while it is still before the two Houses. It’s just that someone might try to annul it.
But the more important point is that this extraordinary structure is being put into place in order to implement obligations arising out of the common foreign policy or related agreements. In other words, the Secretary of State is acquiring powers to override Parliament completely for the sake of the EU’s foreign policy. One wonders whether the United States Congress would ever pass a law like that.
When one turns to the explanatory notes to the Bill, one finds that related agreements may well refer to
“… treaties entered into by the UK or the EU on the basis of the CFSP provisions of the Constitutional Treaty.”It is also worth remembering that Article I-41 of the Constitution for Europe, which deals with specific provisions relating to the common security and defence policy starts with the following sub-section:
“The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civil and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.”There is plenty more in the Article about the various obligations, none of which will have to be debated in Parliament if the European Union Bill becomes law.
Nor is it quite clear whether anything will be different if the referendum votes the Constitution out, as a great many of the provisions of the common foreign and security policy have been agreed on outside its framework. More can be agreed on during jolly ministerial meetings, if necessary.
Curiously, the government itself seems unable to understand the implications. Another Bill that is making its way through the Commons is the Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill, which has had its First Reading.
One wonders what the purpose of that Bill is. Even if it becomes Act, it will not apply to anything that comes under the European Union’s common foreign and security policy.