Clause 25 - EEA agreement and EEA state

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 1:30 pm on 9 March 2006.

Alert me about debates like this

Question proposed, That the clause stand part of the Bill.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State 1:45, 9 March 2006

I only have a brief point to make. At the end of the clause there is a provision relating to Scotland and Acts of the Scottish Parliament. I want to check whether that has been discussed with the Scottish Parliament and it is content.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I want to make a rather pedantic point, unfortunately, which is also rather complicated, about whether the European economic area agreement, or any modifications to it, are Community treaties. We know that the EEA agreement was entered into by member states of the European Union, the European Coal and Steel Community and the European Free Trade Association, but unlike sovereign states there is no legal persona that is the European Union. Had the referendum gone ahead and the constitution been proceeded with, the EU would be a legal personality; but it is not. Therefore, we have an agreement of member states.

Under the provision, with which I have no basic quarrel other than this technically that I am looking into, there is a definition of the EEA agreement:

“the European Economic Area signed at Oporto on 2nd May 1992, together with the Protocol adjusting that Agreement signed at Brussels— fair enough—

“as from time to time modified or supplemented by or under the Community Treaties.”

The difficulty is that amendments to that are not Community treaties per se, in that they are entered into by the European Union as such, because it cannot do so—only member states can do that—and amendments to the EEA are, by definition in British law, not defined as Community treaties under section 1(2) of the European Communities Act 1972. How do I know that? I have in my hand the European Communities (Definition of Treaties) (Agreement on Enlargement of the European Economic Area) Order 2004, which was necessary to allow the participation of the Czech Republic and the republics of Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland,   Slovenia and the Slovak Republic within the EEA at a time when they were not member states of the European Union.

The second provision of the 2004 order is:

“The treaty specified in the Schedule to this Order is to be regarded as a Community Treaty.”

In other words, it was not, but the order put to Parliament was to allow it to be regarded as such. That is a rather technical point, but there is a circular definition of Community treaties that is perhaps to be avoided. I do not expect the Minister to give me a chapter-and-verse response without notice, but I ask him to consider the matter and ensure that he is satisfied that the legal definitions are in order and we do not have a circular argument about what comprises a Community treaty. I think that the Minister gets the point that I am trying to make and may, indeed, have an answer.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

To the extent that the hon. Gentleman gets the point, I think that I also get it, but it is, as he says, a complicated and potentially circular argument. The only information that I can offer him—his research may have made him aware of this—is that section 1 of the European Economic Area Act 1993 made the EEA agreement a Community treaty for the purposes of the European Communities Act 1972. I shall analyse the hon. Gentleman’s additional comments.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

The principal point is that the EEA agreement was made into a Community treaty by virtue of the 1993 Act, but subsequent changes to it are not, unless there is another bit of primary legislation or an Order in Council that enables them to be.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

The whole Committee accepts the point that the hon. Gentleman has made. The clause amends the Interpretation Act 1978 to provide that references in domestic legislation to the “EEA agreement” will automatically refer to the current version of that agreement. There is no need to have a prolonged discussion on the clause unless hon. Members wish to do so.

The hon. Member for North-East Hertfordshire made the point about the devolution settlement. My understanding is that the Scottish Executive are content with the approach in clause 25 and how it affects the devolution settlement. As a Scot, I am continuously sensitive to ensuring that our deliberations respect the devolution settlement.

As has been said, the EEA agreement was signed in 1992 and was adjusted by the protocol signed in Brussels on 17 March 1993. References to the “EEA state” and “EEA agreement” are made thousands of times in primary and secondary legislation. Although changes to membership, and therefore to the agreement, do not happen often, when they do, updating thousands of references is an extraordinarily time-consuming and resource-intensive effort. The clause seeks to ensure that such a process is no longer necessary and that we refer to the EEA in its current   form. We should not need to replace all those thousands of different references. Given those comments, I move that clause 25 stands part of the Bill.

Question put and agreed to.

Clause 25 ordered to stand part of the Bill.