European Union Bill
(13 years, 9 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
Mr Speaker
I had intended to call the hon. Member for Birmingham, Edgbaston (Ms Stuart) to move the new clause, but it can be moved by another of its supporters. I call Mr James Clappison.
New Clause 1
Provision of documentation under Part 1
‘(1) A statement laid before Parliament under section 5 of this Act shall be accompanied with all relevant documentation on the treaty or decision concerned, including all amendments sponsored by Ministers and other member states during negotiation of the treaty or decision.
(2) All decisions which as a result of any of sections 6 to 10 of this Act require approval by referendum or Act or resolution shall be accompanied with all relevant documentation on the decision concerned, including all amendments sponsored by Ministers and other member states during negotiation of the decision.’.—(Mr Clappison.)
Brought up, and read the First time.
Mr James Clappison (Hertsmere) (Con)
I beg to move, That the clause be read a Second time. As another Member who willingly put his name to the new clause, I am delighted to do so.
Members who are familiar with the Second Reading debate and the proceedings in Committee will know that clause 5 is about a statement that must be laid before the House within two months of the conclusion of any of the treaty changes covered by the Bill, as part of the process whereby a referendum takes place. It covers treaty changes in both the ordinary revision procedure—the one with which we are all familiar, involving a convention followed by the full panoply of treaty change and agreement between the nations—and the simplified revision procedure that was introduced by article 48(6) of the treaty of Lisbon, which makes it much easier for the parties to the European Union to bring about treaty change. Under that article, all they need to do is reach an agreement within the Council and then put it to the member states, and unanimity is required for that. It is generally regarded as a measure that speeds up treaty change.
New clause 1 would require much more information to be included in the statement, or to be provided with it. When my friend the hon. Member for Birmingham, Edgbaston (Ms Stuart) drafted the new clause, she may well have had in mind what took place during this House’s proceedings on the treaty of Lisbon, and I certainly had that in mind when I signed it. The then Government advocated all the measures in the treaty of Lisbon to the House—and to the country—but it was revealed during the debate that at the Convention that led to the drafting of the constitutional treaty which later became the Lisbon treaty, they had opposed a number of key proposals.
Mr William Cash (Stone) (Con)
Is my hon. Friend also conscious of the fact that the Conservative party was, for the first time since 1972, united on that issue, and that it voted consistently against every provision that was worth voting against in the Lisbon treaty, yet subsequently accepted it?
Mr Clappison
Yes—and not only that, because my hon. Friend is being characteristically modest, as some of the warnings about the consequences that would flow from the treaty of Lisbon have proved right in the short time that has elapsed since its introduction. I am thinking in particular of the warnings that were given about what I regard as the unfortunate influence of the European External Action Service and the EU’s new Foreign Minister, Baroness Ashton, which has not entirely served the interests of this country.
Mr John Redwood (Wokingham) (Con)
The new clause is excellent. I like the idea that Ministers would have to report that they tried to get an improvement but they lost. Is it also proposed that some of the arguments should be made available, because it would be much more interesting if we knew how badly they had lost?
Mr Clappison
My right hon. Friend makes an excellent point. Too often decisions are made behind closed doors, certainly in the Council. They are made in a remote and unaccountable way, and members of the public in this country simply do not have the information that they should have to be able to evaluate the decisions taken in their name.
During our debates on the Lisbon treaty, it was striking that time after time we had to remind members of the then Government of what they had said in the Convention about the measures that they were now putting before the House. I cannot remember whether they had opposed the establishment of the EU External Action Service and the EU Foreign Minister—I would not have blamed them if they had—but it emerged on a number of occasions in the debates in the House that Ministers had previously opposed what they were now proposing. That came to light only through the assiduous work of the then Conservative Front-Bench Members, and I pay tribute to them, as well as to colleagues such as my hon. Friend the Member for Stone (Mr Cash) and my right hon. Friend the Member for Wokingham (Mr Redwood).
The new clause would remedy this problem, as the fullest possible information would be placed before the House, with the statement, so we would know exactly what had taken place, and whether the Government really agreed with what was being proposed or whether they had lost the arguments and been outvoted. In short, we would know whether we were being called upon to do something with which our democratically elected Government did not agree.
Mr Clappison
I give way to the Liberal Democrat Member who, of course, supported the Lisbon treaty on many occasions during its passage through this House.
Martin Horwood
Absolutely—and a referendum on it.
The hon. Gentleman is speaking as if the new clause related to the situation after the negotiations have been completed, but what it actually says is
“during negotiation of the treaty or decision.”
I attended a negotiating skills course some years ago, and I was always advised not to give away my negotiating position during the course of the negotiation. Would not the new clause destroy the British Government’s negotiating position? Is that its intention?
Mr Clappison
No, because the British Government are representing the British people and the British people should know what is being negotiated on their behalf. This is not a private company trying to make a profit; it is democratically elected Ministers acting on behalf of the people. May I slightly correct the hon. Gentleman? I do not know whether he was in the House at the time, but I certainly recall this, because I was sitting directly behind the Liberal Democrats. That party supported an in/out referendum on the European Union, but it did not support a referendum on the Lisbon treaty itself. I remember that debate taking place. He will correct me if I am wrong, but I recall that although the Liberal Democrats got very agitated about having an in/out referendum, they were not exactly full-hearted in supporting a referendum on the Lisbon treaty.
Mr Clappison
I will give way again to the hon. Gentleman, who has a very honourable record of supporting further European integration.
Martin Horwood
I will correct the hon. Gentleman, as he is wrong. I voted for both an in/out referendum and a referendum on the Lisbon treaty.
Mr Clappison
I stand corrected. I do not know whether the hon. Gentleman’s colleagues voted both for and against an in/out referendum, or whether they voted both for and against having a referendum on the Lisbon treaty. I do remember, because it would be hard to forget this, that one of his colleagues was excluded from the Chamber because he got into such a terrible temper about not being able to have an in/out referendum. I am not sure how many of his colleagues supported the amendment that we dealt with several evenings ago proposing an in/out referendum; the Hansard record will doubtless show the number.
The fullest possible information should be available to this House and to the British people so that we know what is really going on. One of the fundamental problems of the European Union is the feeling of disillusionment that people have about its lack of accountability. We do not know what is taking place and being done in our name. The EU is remote and decisions are taken behind closed doors. Some arrangements are entered into beforehand in an entirely private way, with decisions not even being taken at the meetings themselves, but often being taken behind closed doors. We need more information about such matters.
Mr Cash
Even as we speak, a gigantic deal is being done in Europe. It is called the “competitiveness package”. It took me an urgent question—thanks to you, Mr Speaker—to elicit the truth about what was going on in European economic governance. What my hon. Friend says is absolutely right: a tradition of deceit lies behind all this, and it goes right across the whole of Europe.
Mr Clappison
I am grateful to my hon. Friend, because he has done the House a service. It was entirely due to him that the contents of the Van Rompuy report, as they affected this country, which they clearly did, were revealed to this House. We look forward to having a fuller debate on those in due course. We want a fuller debate on many other issues, but when a treaty change comes before this House and is the subject of a statement under clause 5 we need to have all the information. We need to have everything out in the open so that we can have a full and well-informed debate.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)
By way of explanation, Mr Speaker, I think I have fallen victim to my usual habit of reading newspapers from back to front. I apologise for not having been here at the start of the debate, and I thank the hon. Member for Hertsmere (Mr Clappison) for introducing the new clause.
I need to explain the antecedents of the thinking behind the new clause. When I was a Minister I attended meetings of the Council of Ministers, and I knew that it was perfectly impossible for any national Parliament to find out even whether their Minister was there to vote, let alone whether they had made any particular representations. I am sure that I am not the only Minister—people on both sides of the House must have done this—who performed the most amazing U-turns on policy when doing a Council of Ministers stint. I am talking about little notes along the lines of, “The United Kingdom no longer supports amendment 58”—and that was all that was ever said about the matter. There is nothing wrong with that; we do that in politics. But in this House, if the Government perform a U-turn, someone at some stage has to stand at that Dispatch Box and say, “We’ve changed our minds.” They have to give reasons for doing so, and on occasions those are perfectly acceptable. This is the one thing that is completely missing in our dealings with the European Union.
Post-Lisbon, we have made some advances in the information provided for the European Parliament. Although I welcome those provisions, I would challenge even hon. Members to close their eyes and tell me, hand on heart, that they can name all the MEPs who represent their region. I bet that they could not do that; I could not name them all myself. [Interruption.] My right hon. Friend the Member for Rotherham (Mr MacShane) says that he does not even know all the MPs for Birmingham. Fortunately, I could tell him all their names, even in alphabetical order.
Mr Redwood
The hon. Lady is absolutely right. I can remember visiting EU Councils as a Minister and discovering that the Council of Ministers often met as a legislature. It was about to enact extremely important laws affecting all our countries, and all that the others and I said was entirely secret and did not have to be shared with the public. That is an absolute disgrace: we need much more transparency.
Ms Stuart
The right hon. Gentleman is absolutely right. I negotiated the opt-out for the junior doctors working time directive back in 1999, and in a sense we knew on the negotiating basis all the problems that would happen in the NHS that the UK Government saw coming. We also knew that the directive would not actually hit us until about 2008-09. Now it is here, and everyone here is entitled to say, “We didn’t see it coming.” In fact, on one level we did see it coming.
It is also important for the House to consider the fact that, during the discussions on the Convention on the Future of Europe, I was in the very unusual position of being a negotiating partner at Government level, and also representing the House. Therefore, provided that I used a legal adviser from the House, I could be given the legal advice that was given to the previous Administration.
We should consider the nature and length of debates in the European Union. I deliberately chose the working time directive for junior doctors as an example, because it started in 1992 and started to have legislative impact on this country 10 years later, and only now are we beginning to find out its full effect.
We have now moved from Conservative to Labour to Conservative, and within our Government machinery—[Hon. Members: “Coalition.”] It is okay—the Liberal Democrats came sixth in Barnsley, so there is a ray of hope. Given the veil that falls between one Administration and the next, which hides the accumulated knowledge that could allow parliamentary scrutiny, there must be a mechanism that transcends individual Administrations, which would give the House access to the information that has been given to Ministers. Although new clause 1 is limited, it is nevertheless an important wedge representing that principle.
Charlie Elphicke (Dover) (Con)
I understand that the hon. Lady is suggesting not necessarily publishing everything for everyone on this country’s negotiating position, but perhaps listening to Parliament. Am I right in thinking that a similar system exists in Denmark?
Ms Stuart
Yes and no. I would caution against using the Danish principle, because it mandates Ministers bindingly. No one needs to talk to them when they are sitting round the negotiating table in Brussels, because they know what they will say. They do a head count and say, “The Danes say x.” The hon. Gentleman is right to refer to not publishing all the information, because too much information is also a weapon: people can be drowned in information, and they cannot see the wood for the trees.
The advice given to Ministers should be made public to Parliament, so that Parliament can decide whether it wishes to pursue something. More importantly, that would allow information to move from one Administration to the next, and Parliament could develop the collective memory of responsibility and decision making that is essential in our dealings with the European Union.
Neil Carmichael (Stroud) (Con)
We are having an important debate, and the first thing to do is find our national interest in the context of that debate. Otherwise, we will head into treacherous waters. For me, the national interest is to ensure that the Government are able to promote our interests in the best possible way in dealings with our EU partners. Anything less would risk undermining our prospects of promoting the best solutions for Britain in the EU.
I understand some of the reasons why the new clause has been introduced. For example, I see why Members of the European Parliament might be interested in hearing more about the position of the British Government—under the co-determination procedure, they have an interest in knowing more—but we are not Members of the European Parliament; we are Members of this Parliament, and we should be concerned about the accountability of the Government to this Parliament. We have no real interest in giving information to a Parliament that happens to have representation from all the nation states that we would be negotiating with. That is a bad reason for promoting the new clause, and if it was to be further advanced in the House, I would repeat that argument.
There might well be another reason, and I have thought about this myself. The previous speaker, the hon. Member for—
Neil Carmichael
Excellent, a beautiful place. The hon. Lady might well think that the transparency of the Commission is important—indeed, the transparency of the Council of Ministers—and I have certainly thought about this long and hard. I understand why people would wish there to be more transparency in both those organisations. After all, they make decisions that are important to us, but the new clause tackles the issue in the wrong way because it would undermine the Government’s capacity to negotiate. That is what we have to underline.
When the Government enter negotiations with other nation states about the future of Europe, they must do so with the knowledge that they may or may not enter into alliances with various Governments, and that those alliances may change during the negotiations.
Mr Redwood
I think my hon. Friend is misreading the new clause. It would mean that, when all the negotiation was done and we knew the final outcome, we would also know whether our Ministers had won or lost. What is wrong with that? How dare he be so undemocratic?
Neil Carmichael
Because it is important to bear in mind the next negotiation and not think only about the one we have just had. That is obvious, because alliances can fluctuate and relationships are important. I do not think my right hon. Friend would say the same thing about any negotiation on a treaty outside Europe, and certainly not, for example, about NATO.
Ms Gisela Stuart
The hon. Gentleman is fundamentally misunderstanding the nature of the negotiations. One thing that British Ministers are famous for is the fact that, by the time they go into negotiations, they have reached agreement across Whitehall. Quite often that does not allow us to play a poker game. There is a formed body of opinion that represents the British view, and, after the negotiations, we, as a House, have the right to know.
Neil Carmichael
I would prefer to take the line that it is much more important to consider the outcome. Certainly, the House should be testing the Minister on that outcome and should be able to hold that Minister fully to account for it, but explaining how we got there would be a dangerous route to take.
Mr Brian Binley (Northampton South) (Con)
Will my hon. Friend give way? Does he—
Mr Speaker
Order. I have not given way at all. I just want to help the hon. Gentleman to get it right, and I am sure that he will use the correct parliamentary language.
Mr Binley
I am most grateful for your help and advice again, Mr Speaker. The House is also about the people we represent. If it is right and proper that they should have full knowledge of what their Government are doing, does the argument that my hon. Friend is making not deny them that right too?
Neil Carmichael
I certainly think it is important for people to know how decisions are made, but it is equally important to ensure that we have the quality of decisions that are best for Britain and that we do not box ourselves in for the future. Many of the decisions made in Departments are not necessarily things that the public need to know before those decisions are implemented and discussed in the House.
Mr Peter Bone (Wellingborough) (Con)
My hon. Friend is being exceptionally generous in giving way. The idea of keeping those decisions secret is the reverse of what the Prime Minister wants. In his speech of 26 May 2009, the Prime Minister argued strongly for transparency so that people would know how the Government negotiated. Is my hon. Friend opposing the Prime Minister?
Neil Carmichael
Certainly not. The Prime Minister is right to seek transparency wherever it is appropriate and possible. That is a good characteristic of the coalition Government and I welcome it. I can see huge opportunities for more transparency, wherever appropriate. I think the Prime Minister also wants to be sure that his position representing this country or the position of his Ministers representing this country in the Council of Ministers enables them to negotiate, form the appropriate alliances with necessary nation states and deal with matters properly, with the guarantee that trust and understanding are possible. Otherwise we will find that we as a nation state are not respected by our partners. We must be respected on our terms—that is, for promoting our national interest and making sure that what we want to do is achievable.
Chris Heaton-Harris (Daventry) (Con)
I understand where my hon. Friend is coming from, and equally, I understand the new clause. The reality is that after any Council meeting, 26 other countries run to their national press to say exactly what the British negotiating position was and what we might have given away. Within about 24 hours, anybody out there can see most of the negotiations that have taken place. I am sure the hon. Member for Birmingham, Edgbaston (Ms Stuart) will understand this point. If we are going for transparency—if the detail of the negotiations is going to be out there anyway—surely it would be easier for the British Government to come back, lay their cards on the table and say how they played their hand.
Neil Carmichael
The role of Ministers in interpreting each other’s decisions and talking to the press later is different from formally disclosing key positions. I do not spend a huge amount of time reading the newspapers, certainly not those produced by Mr Murdoch. I would much prefer the House to test Ministers on the outcomes and make sure that the integrity of the decisions was protected and that the capacity of our Ministers to act independently in the interests of this nation state was upheld. That is why the clause is not helpful.
I understand the motives, as I said at the beginning of my remarks. I can see why people want to have more information about the European Parliament and more transparency in relation to the Commission. It is not a clear structure at the best of times. I can see why more transparency should be required of the Council of Ministers, but the clause is not the right mechanism. The critical issue, as we discussed last time, is to make sure that this House can test Ministers thoroughly and properly at each and every opportunity.
Stephen Phillips (Sleaford and North Hykeham) (Con)
I am grateful to my hon. Friend for giving way; he has done so with charm and good grace and been very generous indeed. He has said a number of times how important it is for the House to hold Ministers to account. How can the House hold Ministers to account if Members do not understand precisely what has been discussed, which then comes before the House? He undermines his own argument, does he not?
Neil Carmichael
No, I do not. The real way of holding Ministers to account is to examine the quality of the decision that has been made and the impact that that decision will have on this country. It would be far better to look at the decision and its implications and understand the reasons for it than to worry too much about why it was made and by whom. That is the key. Too often in this country, we tend to examine the entrails rather than the direction of travel and the implications of the decision that we are supposed to be implementing.
Ms Gisela Stuart
I have one concrete example for the hon. Gentleman: the way we deal with the art market and the extra tax on it. Britain currently has an opt-out, but it is coming up for renewal, which could completely undermine Christie’s and the art market in this country. At what level in this House does he think he will debate the ministerial decision on that?
Neil Carmichael
You make a very good point. I am sure that the Minister, if he is involved in that negotiation, has taken heed of what you have said.
Mr Speaker
Order. I am always delighted to be told that I have made a good point when I have done so, and even when I have not, but in this case I have not. The hon. Lady might have done.
Neil Carmichael
Many apologies, Mr Speaker—it is a long time since I have had quite so many interventions. The key thing here is the quality of the decision. If a Minister came along and tried to defend a decision that this House was unhappy about, this House should say so. That is the right approach.
Michael Connarty (Linlithgow and East Falkirk) (Lab)
Will the hon. Gentleman give way?
Michael Connarty
May I suggest a much simpler piece of logic to explain why the new clause would probably not be helpful? If the hon. Gentleman has ever attended a European Committee, whose members are supplied with a large volume of documentation that they are supposed to read before debating the issue and taking a position when voting, he will realise that most do not read it. The more information that is supplied on European matters, the more paper that is provided, which will not be read.
Neil Carmichael
That is a really good point to end on. The hon. Member for—
Neil Carmichael
Right. [Laughter.] That is longer than Stroud.
That is an important point to end on, because I do not think that everyone does read everything they should, and we have come across that in the past. The European Scrutiny Committee is under the excellent chairmanship of my hon. Friend the Member for— [Hon Members: “Stone.”]—for Stone (Mr Cash), but one of the things I noted before becoming a Member was that scrutiny of European measures, if carried out at all, was not thorough. I have done some research and found that decisions have literally been nodded through, which is characteristic of these kinds of issues. It is far better for this House to consider the outcomes seriously, because it is the outcomes that matter. That has always been the case in decision making. Sometimes the process that we use needs to be scrutinised because the outcome is not so good, and clearly we might want to test that.
We should never undermine the capacity of a British Minister to represent our interests and make adjustments to his or her position while in negotiations with other nation states. I repeat that if we were having this discussion about the United Nations or NATO, for example, I do not think we would be talking in these terms, because we understand the value of empowering Ministers to make decisions on our behalf and report back with outcomes that are to our liking.
Mr Denis MacShane (Rotherham) (Lab)
I follow very much in the footsteps of the hon. Member for Stroud (Neil Carmichael) by highlighting two very worrying developments in our discussions in this House on Europe that have taken place since the coalition was formed: the abolition of the twice-yearly debates on Europe and the decision of the Foreign Affairs Committee no longer to go to the country holding the EU presidency to examine its plans.
Mr MacShane
I am such a fan of the hon. Gentleman’s work on human trafficking that I feel I must give way, but I will try not to take many interventions, for obvious reasons.
Mr MacShane
I am grateful that the poor fish thrown into the sea will now have their flippers flipped in the House of Commons.
I want our Government and our House regularly to debate Europe, but the plain fact is that it is the decision of this Government—this coalition—not so to do. The Foreign Affairs Committee, with its coalition majority, is also abolishing its regular trip to the European Union nation that holds the presidency.
Mr Redwood
Has the right hon. Gentleman noticed that we are debating Europe all day today, and that we have had quite a lot of days on this Bill?
Mr MacShane
Yes, and I well remember the right hon. Gentleman in the even longer debates—going through the night—on the treaty of Amsterdam saying that signing it would mean the abolition of Britain. When there is a new Bill, we have debates, and we have had many debates and some good discussions on this one.
Mr MacShane
Can I make just a wee bit of progress? [Interruption.] Well, I will give way to one of my favourite ex-MEPs. How can I resist?
Chris Heaton-Harris
I am not sure whether I should take that as a compliment. Has the right hon. Gentleman had a chance to read the written ministerial statement about this subject that was issued during our previous five days of debate? It included what, in coalition terms, would probably be deemed a full and comprehensive offer to the House about how we might scrutinise justice and home affairs matters. We should examine that offer in much closer detail today, and perhaps we will later on.
Mr MacShane
I am very grateful to the hon. Gentleman, because he brings to the House considerable knowledge of how the European Parliament does its business. That is exactly the way in which the European Parliament carries out its scrutiny. Perhaps we should learn from him; perhaps he and I should set up a small committee to go to Strasbourg —for him to return there—to see what we might learn.
In essence, the hon. Member for Stroud is quite right: this is the WikiLeaks amendment. It would abolish the need for WikiLeaks, because the process of Government decision-making would be published. I would love to see that for something infinitely more important to my constituents—the thinking, advice and documents that have led to the promulgation of the NHS Bill or, in two or three weeks’ time, that lead to the Budget. I expect, however, that I would find very little support on the Government side of the House and absolutely none from the Opposition Front Bencher waiting for his turn to speak for the idea that we do government better if we allow Mr Julian Assange to publish every document and every communication that goes into a Minister’s box.
I can confirm exactly the point that my hon. Friend the Member for Birmingham, Edgbaston (Ms Stuart) made about how negotiations can and do take place. I recall once trying to protect the steelworkers of Britain from a proposal, which the then Labour Government supported, to allow the import of steel—a derogation of the then EU trade rules—from a dodgy supplier in Egypt which I knew to be linked to the army and was, in my view, a wholly corrupt organisation. I could not quite work out why we were so keen to allow the deal to go through, which would have damaged steelworkers’ jobs and production in this country and, if the steel were re-exported, those in the rest of Europe, too.
I could not, however, convince any civil servants. At one stage, I had 27 of them, including two knights of the realm, grouped around me, telling me, “Minister, you have to give way.” I put down my little foot and said, “No, I am elected. That is what I am paid to do.” Then, they went out and got the Secretary of State for Business and Industry to phone me, and at that stage either I resigned on the spot or accepted a superior order.
Mr MacShane
No, I did not resign, simply because I work in a team. When the hon. Gentleman graces the Front Bench, as I hope and I am sure he soon will, he will have to learn that there is something called teamwork, and that until he becomes Prime Minister he will take rather than give orders.
I am not sure that it would have been any particular help to have published all my animadversions immediately afterwards, although I told my steelworker community friends privately what had happened. Frankly, one cannot do business in that way. I am not even sure whether, constitutionally or legally, suggestions made before a decision is taken can then go fully into the public domain if they belong to other people. I think we may find, legally, that there are certain rules on what is the property of other states. We do not publish every communication with the United States, France, or any country, for good and sensible international legal reasons.
Jacob Rees-Mogg (North East Somerset) (Con)
The process in Europe is legislative. When this House legislates, the debates are published, regardless of the ultimate decision, so that the British people know how the debate has been formed in the legislature. As the Commission, Council and Parliament of Europe are legislatures, the information should likewise be public.
Mr MacShane
We can enter into a political science or constitutional debate on the nature of decision making in the EU—which, I remind right hon. and hon. Members, spends only 1% of Europe’s gross national income—but the plain fact is that the Commissioners are appointed and it is the Council of Ministers that takes decisions, as mandated by its member countries. It is no more a legislature than it is a legislative process when one goes to negotiate a treaty on the law of the sea or on new environmental rules.
Mr MacShane
There is a curious alliance between two distinguished former Members of the European Parliament—my hon. Friend and the hon. Member for Daventry (Chris Heaton-Harris)—in saying that perhaps this House can learn from the European Parliament. Other right hon. and hon. Members might care to look at that.
The European Union will be taking very big decisions on Friday, when there are two special meetings of the Council, the first of which—
Mr Cash
The right hon. Gentleman, in some dispute with my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), suggested that decisions taken by the Council of Ministers were not legislative acts. Can he think of anything that is more of a legislative act than when, by a majority vote, the decision that is taken is binding upon this House without our having any opportunity to intervene?
Mr MacShane
Yes. In my constituency, which is a very strong manufacturing one, the acts of the World Trade Organisation have far more impact, and we do not consider the WTO to be a legislative body.
On Friday, there will be two highly important meetings of the European Council, the first of which will discuss Libya. I am a supporter of much of the robust line that the Prime Minister has taken since he came back from his trip to the middle east. It will be interesting to see whether the Government publish all the details of the propositions that they are putting up for that debate and decision, or whether they offer a referendum lock to the people of Britain on any future military intervention in Libya, as proposed in certain other areas under the Bill.
Once that meeting is over—I sincerely wish the Prime Minister and his team well; I hope that the whole House does, because Libya will continue to occupy our minds and worries for many months ahead—the British Prime Minister will be asked to leave the room. That is because the next set of decisions that will be taken, on economic governance and the euro, will exclude Britain, even though they will impact on us, as the Council will discuss how to react to the new Irish Government’s position in wanting a serious rewriting of the agreement that the previous Government had reached. It may discuss the European Parliament’s call for a ban on naked short selling, which the German Government have already introduced in Germany and which is very unpopular in the City. Britain will not even be there, because it is excluded from that part of the Council. The notion that we will learn about decisions made in Europe if Britain publishes its documents is nonsense, because unless all 26 other members states do the same, we are left in ignorance on the ebb and flow of discussions.
Mr MacShane
If I may, I will continue, because I am sure that the hon. Gentleman will have a good chance to speak shortly.
Charlie Elphicke
The right hon. Gentleman is giving an interesting depiction of matters in the Council of Ministers. Will he tell the House whether Governments such as the UK Government formally table amendments for discussion, or whether the process is more informal, with things written down at the end?
Mr MacShane
It is a mixture of both. First, one listens to the positions of all 27 member states, then one says things like, “Look, that’s not going to fly for us. We suggest you drop it. Here are our ideas.” Proposals go backwards and forwards between the Council secretariat and the Commission secretariat, and they come back here for discussion, as my hon. Friend the Member for Birmingham, Edgbaston (Ms Stuart) rightly said. Whitehall has a very effective co-ordination operation. As a result, the finest civil servants in the land meet very early every morning—sensibly that is usually done without any gabby politicians present—and over a large English breakfast, on the eighth floor of some Hilton or Hyatt in Brussels, they hammer out a position and work out where every other country will be to maximise what Britain wants. Very often, we are the demandeurs who want to achieve a policy change in the European Union which requires skilled diplomatic negotiation. I say respectfully that the notion that all that can be minuted and published is not realistic.
Mr Cash
On a point of information, I just wanted to put it to the right hon. Gentleman that the European conclusions of 4 February, to which he referred in the context of the eurozone and the other member states, specifically state:
“Non-euro members will be invited to participate in the coordination.”
They also state that it will be guaranteed that
“the Heads of State or government of the interested non-euro area Member States are duly involved in the process.”
I therefore do not think he was quite right to suggest that we would not be involved, because the conclusions state specifically that we will be. However, the whole system is completely crazy.
Mr MacShane
We will see what happens on Friday. I am concerned, as all hon. Members ought to be, that because we are not in the euro—for perfectly good reasons—Britain is not as fully involved as the other deciders in many areas of decision making. We will leave that to be revealed in Friday’s meeting and future discussions.
I am very attracted to the point made by my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty). We can now, in the House of Commons, announce the new Connarty law: there is a precise ratio whereby the more paper provided on any European decision, the less real discussion and debate there is thereon. I hope that he will agree that that new Connarty law should be enshrined as an official part of how we do business in Europe.
I remember that for the constitutional Convention, on which my hon. Friend the Member for Birmingham, Edgbaston valiantly represented the House of Commons, the then Foreign Secretary and myself set up a special Select Committee and published everything. We had regular meetings for the sake of accountability, but not a single Opposition Front Bencher ever came to them and they were often inquorate. The hon. Member for Stone (Mr Cash) was valiantly present at every meeting, but his party leadership was absent. Again, that reflects the Connarty law—the more opportunity and information right hon. and hon. Members are given on Europe, the less inclined they are to take it up and debate it.
Michael Connarty
I think that what I said was that the more paperwork that is provided, the less it is read. Information can and should be given, and Ministers do not give it often enough from the Dispatch Box or in evidence. They try to hide information. It is paperwork that frightens people, not information.
Mr MacShane
I am very happy to have that minor revision to the Connarty law—the more paper people are given on the European Union, the less it is read, debated and discussed.
Stephen Phillips
The right hon. Gentleman’s argument seems to illustrate what is wrong with the new clause, which is that there is no definition of “relevant”. It is therefore entirely unclear whether vast volumes of documentation would be produced were it to form part of the Bill. That is my real objection to the new clause. Does he agree, and is that an aspect of the Connarty conjecture, as I shall call it—or perhaps the Connarty-MacShane law, as it now turns out to be?
Mr MacShane
Yes, “relevant” is a difficult adjective to define. There is an even more difficult adjective in the Bill, which states that only a matter that the Minister judges to involve “significant” sharing of sovereignty should be brought back to the House for debate and a possible referendum. I put it to Members that no British Government or Minister would sign a treaty that they would then bring back to the House of Commons and offer for referendum. It would be a dereliction of duty. I have every confidence in the excellent occupant of the post of Minister for Europe, and his duty is to negotiate the best for Britain. If a treaty is not good enough for Britain, he should not sign it. We should effectively veto it there and then rather than have the nonsense and rigmarole in the Bill, whereby a treaty would be brought back to the House, we would have endless debate about what was and was not significant, and then it would be put to a referendum.
Charlie Elphicke
I thank the right hon. Gentleman, who has been extraordinarily generous in taking interventions.
I raised with the hon. Member for Birmingham, Edgbaston (Ms Stuart) the situation in Denmark, and she said, “Their negotiating position was known. We knew what they were doing.” Is not a potential concern about the new clause the fact that our negotiating position could be known? Does it harm Denmark in practice that its position is known?
Mr MacShane
The Danish Parliament is very different. The last time there was a majority Government in Denmark was 1909. Actually, perhaps that will not be such an unusual thing even for our own legislature in the years to come—let us wait and see how this century unfolds, especially if the people are so foolish as to adopt that ludicrous alternative vote nonsense. [Hon. Members: “Hear, hear!”] It is so easy to get that reaction.
The hon. Gentleman puts his finger on a good question: do we, as a House, take the European Union seriously enough? Do we have the mechanisms and structures to involve ourselves fully in EU debates and decision making? The Danish Parliament has an all-party Committee—although we should remember that the Danish Government are always a coalition—to which Ministers must report, and it is a much smaller operation. I would like this House to set up permanent Standing Committees to survey different areas of EU policy and legislation. Our Select Committees could have permanent Sub-Committees to track EU decisions that would otherwise be off the rota. Those Sub-Committees could travel around Europe, and not necessarily just to Strasbourg and Brussels—I keep insisting that decisions on Europe are taken in Rome, Paris, Warsaw and elsewhere, and not comprehensively and uniquely in the two European Parliament buildings.
I should like us to debate Council meetings after they have taken place rather than before—I made my maiden speech in a pre-Council debate and have taken part in many more.
Laura Sandys (South Thanet) (Con)
To take up the point made by my hon. Friend the Member for Dover (Charlie Elphicke), I am a great advocate of transparency, which is crucial. The problem is that the Bill proposes unilateral transparency. We are not in the business of declaring that we are for unilateral disarmament before negotiations. Will the Minister ensure that although we need to make progress on transparency, we need to do so across Europe, and not just in respect of our negotiating team, which might feel hampered in making the key decisions that matter so much to my constituents?
Mr MacShane
The hon. Lady makes a fair point. Aneurin Bevan famously said apropos of unilateral nuclear disarmament that we should not send a Foreign Secretary naked into the conference chamber. Now and then at the more tedious European Council meetings, someone coming in naked might have cheered everyone up, but she is right to insist that Britain cannot unilaterally reveal itself in its wondrous glory, naked to the rest of the world, while 26 other members are smuttily enjoying the sight while keeping their own crown jewels well and truly hidden.
Laura Sandys
The hon. Gentleman is perhaps taking the analogy a bit too far.
Mr MacShane
I was tempted to do so, but I shall resist.
My frustration, after 17 years in the House, is that we still do not know how to discuss the EU. We are still frightened of going to the national capitals of Europe. Much of the information that the Bill calls for can be found if hon. Members are prepared to take the time to meet opposite numbers of all parties—the European debaters and deciders in the Bundestag, the Assemblée Nationale or wherever. Hon. Members could also easily find things out from civil servants in Brussels. Most of the information is available if they are prepared to take the time to find it.
Our own negotiating functionaries, to whose extraordinary qualities I pay tribute, would be quite happy to discuss with Committees of this House what they do, but we have reduced European matters to adversarial, in-or-out, horrors-of-Brussels debates and all the drivel that one can read in the Daily Mail and similar papers, instead of accepting that we are in the EU and, as the Prime Minister has made very clear, that we are not leaving. The EU will come forward with new proposals, some of which will be tricky and some of which we will advance, and it would be much better if we could have a mature dialogue with other national parliamentarians. There are 9,700 national parliamentarians and 700 MEPs. We overreact to what the latter say, and ignore the need to connect to the national Parliaments and parliamentarians of Europe to debate decisions.
That would mean a revolution in how we do business. Frankly, the Labour Government failed miserably in improving the quality of oversight and debate on EU decision making. I could publish some of the papers I wrote—if they are not locked away under some 30-year rule—to call for some of the measures that we are discussing. I wish the Minister and his team well in changing how we do EU business. The new clause is not the way forward, and I hope the motion is withdrawn after the debate, but it represents, and is a symptom of, a deep malaise in our nation and of the distrust of Europe that many people feel. I understand that fully, but I insist that parliamentarians can put it right. Hurling insults at the EU will never achieve that.
Mr Richard Shepherd (Aldridge-Brownhills) (Con)
The Bill is titled the “European Union Bill”, and is a legislative measure by this Parliament in respect of the government of this country. It seems to me that what Denmark does is what Denmark does, and what others do, they do. There is nothing unreasonable in the new clause, other than perhaps in respect of the question reasonably raised about the definition of “relevant”. However, I think that everyone in the debate understands the gist of this rather important new clause.
We forget who we are. It was a struggle to get accountable government—that is what this is about: accountable government. It is an odd quirk of the British constitution that we seek accountability at certain levels. Some of us have been here a long time and will remember the triumph of Sir John Major over Maastricht. If I recall correctly, he came back saying that he had won “game, set and match”. As was rightly pointed out by several Members, that is the normal formula of most leaders of EU countries, who all protest that they have secured some golden objective, the consequences of which we only find out some years later. I emphasise that the struggle for accountable government was not easily won. In fact, the House used to sit in secret, and it was a criminal offence to reveal the force and arguments that took place. We did not know, therefore, whether the man who protested he was our friend was indeed our friend, and we did not know whether the person pointed out as the enemy was indeed our enemy. To the benefit of this country, that went. An essential ingredient of our constitution, therefore, is the concept of accountability, but we cannot have accountability if we do not know how the Government act and what they say.
Today’s most relevant observation—I thought it was important, and I hope that the House thinks so too—was made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). He said that many of the decisions coming from the EU are legislative decisions. Imagine that the House sat in secret discussing legislative decisions, and that none of us could be held to account—it is rather like the coalition agreement, is it not?—for the outcome of the decisions. No one is held accountable. That would end democracy in this country as we understand it. It is a difficult enough task to hold Governments to account: time goes by, and the exigencies and pressures of other issues get rammed in.
We are facing a huge constitutional change that has taken place over the past 30 years, and the decisions now made within the EU structure are profound and affect all our lives. One of the promoters of the new clause, the hon. Member for Birmingham, Edgbaston (Ms Stuart), gave a very good example—the working time directive for junior doctors. It had enormous consequences, and the House would have been better placed to agitate and put pressure on Ministers who proclaimed that they were fighting for Britain all the way and were winning game, set and match. However, the consequences of that decision are now being felt throughout our national health service.
Mr Shepherd
I am reluctant to, but as the travails of the right hon. Gentleman are so explicit, I will.
Mr MacShane
The working time decision was taken in 1994. I experienced two constituency cases involving horrible deaths because of overworked doctors who were obliged to do long hours at the weekend who, to put it crudely, made slight mistakes with a zero, so I welcomed that decision. However, those provisions were there from 1994. They could have been put into operation and introduced slowly, but we pretended that that was not going to happen. The decision was made, but nothing was secret.
Mr Shepherd
I have just heard another inaccuracy from the right hon. Gentleman, just as previously he was corrected on a matter of fact regarding the invitation of those not in the eurozone to be present at meetings affecting what are profound matters. I shall therefore take with slight caution some of the arguments that he has advanced.
I should declare an interest: I am a parliamentary vice-chairman of the Campaign for Freedom of Information. What is noticeable is that Europe is notoriously remiss in this area. It is proclaimed that work is being done on freedom of information, yet in many ways the bureaucracy in Europe is one of the most secretive organisations of them all.
Mr Shepherd
This is the record on Europe that most of us will recall; it is not the fantasy of some, who see Europe as an object of almost theological insistence.
Mr Shepherd
No, I will not give way. The right hon. Gentleman spent nearly 30 minutes repeating the—
Mr Shepherd
Indeed, and I took an intervention from the right hon. Gentleman, if he remembers. However, I have listened to the argument, and it is the same argument that he makes most of the time. Although repetition does inform one, it sometimes becomes like a woodpecker on the brain. [Interruption.] No, no, I am going to be fair. This is an important new clause. Our constitutional arrangements require Ministers to be accountable to this House, and the new clause would give us a better understanding of what is happening to our future and our constitutional arrangements.
The European Union set up a body—indeed, the hon. Member for Birmingham, Edgbaston sat on it—to bring the citizens of Europe closer to the institutions and nature of the European Union. I have watched, as have all Members of this House, the disengagement of those citizens—certainly in this country, but also in many others, right across Europe—which is becoming very severe indeed. We have only to look at Ireland, which has done everything that was required of it and is now in an horrendous state, so I do not need the right hon. Gentleman, the former Minister for Europe, to say that this is wonderful. It is not; we expect accountable Government.
Angus Robertson (Moray) (SNP)
We are quite rightly focusing this debate on the workings of the European Union, but some right hon. and hon. Members seem to be establishing a principle that must surely apply to all international treaty organisations that the UK signs up to, whether on environmental, legislative or defence matters in international law. Is the hon. Gentleman saying that he wants exactly the same transparency in all negotiations in every treaty organisation of which the UK is a part? Surely that would be consistent.
Mr Shepherd
I do not accept the argument, because there are very few international agreements that apply in a directly legislative way in this country. Therefore, on a great range of matters we have to put things through this House; therefore, they are governed by the processes of this House. Normally they are nodded through, that is true. None the less, there is accountability to this House, and there are the Ponsonby rules and all that—if they amount to as much as I would like them to amount to. I would therefore urge the House to support the view that we should know exactly what is happening. I do not want to hear “Game, set and match”; I want to hear where we stand in these matters. I want our Front Bench to be quite candid about this matter, which lies at the heart of this European Union Bill, as amended. I was sent a press release, or whatever it was, to advise me as to the merits of the Bill. Well, I will make my own judgment on that, as will other Members who do not follow the Whip as closely as I do. I hope that we will have enough belief in ourselves—because this applies to us, to the British Government—to introduce a proper process in which Ministers will be candid and bring forth exactly what happens in these meetings.
The words
“including all amendments sponsored by Ministers and other member states during negotiation of the treaty or decision”
particularly excite me. Clearly that proposal would not apply at the time of the meetings but to afterwards, when we would come to understand the character of those who are making the law.
Mr Clappison
Would it not be very strange indeed if Ministers were to try to keep secret the amendments that they had tabled during such negotiations? Is not this something that people should subsequently know?
Mr Shepherd
I believe so, because there is a matter of the most profound trust involved. When Ministers speak at the Dispatch Box, we trust that they are telling the truth. That is one of the rules and we must hold them to it—[Interruption.] No, that is a convention of the House. Ministers have fallen when they have lied at the Dispatch Box.
Mr Shepherd
As I understand it, the European Union purports to be a country now. That change of title happened following Maastricht. We became citizens of the Union, also under Maastricht. Those issues were fiercely fought over. The question of whether Her Majesty the Queen was a citizen of Europe arose on the Front Benches here. We asked those questions and they were debated. The Bill was passed, but it was, as Labour Members will recall, a damned close-run thing—on one amendment in particular.
Mr Cash
The very amendment paper that my hon. Friend is holding in his hand demonstrates the amendments that have been tabled and that are available to everyone who cares to look at them. On the basis that the Council of Ministers is a legislative body, does he not agree that, if we have to receive its legislation and are then allowed to table amendments to it, we should be entitled to see the amendments that have been tabled during the preceding process?
Mr Shepherd
That is the argument, and I am glad that it was so briskly conveyed. On that note, I urge the House to support the new clause.
Michael Connarty
I hope not to delay the House for too long. I am actually a signatory to this new clause, but I hope that the hon. Member for Hertsmere (Mr Clappison) will withdraw it. It was an attempt to ask for a process in which information should be provided to make sense of any proposal under section 4, which is mentioned in clause 5 on statements to the House. The truth is that there is a problem with the understanding of, and interest in, the decisions made in the European Council, which are then enacted by this Parliament and which affect the citizens, businesses and communities that we represent.
The hon. Member for Aldridge-Brownhills (Mr Shepherd) is always keen for us to be more informed, but I am not sure that the new clause would achieve that. Listening to the debate, I have become more and more convinced that more and more documentation does not mean more and more information. We need to look carefully at how the House treats the process involved. There are, I think, six members and one former member of the European Scrutiny Committee here today, and we tend to take a lot of interest in these matters, but there is not the same breadth of understanding, information gathering or discussion of European matters in the generality of the House.
Much can be explained by changes in the structure of how Parliament deals with European issues. We used to have European Standing Committees, with specific designations as A, B and C, specific remits and a fixed membership of 13 each, and they debated every single issue that came from the European Council about which the European Scrutiny Committee was not happy. What happens now is that a randomised group of people chosen by the Committee of Selection turn up now and then and the Committees have no sense of a specific remit. They are still foolishly called A, B and C as if they still have specific remits, but when a Minister brings forward provisions to change our position and bring in new law on the basis of a directive, regulation or other proposal from the European Commission, very few people understand what that Minister is doing.
Mr Robert Buckland (South Swindon) (Con)
I am attracted by the hon. Gentleman’s argument about the need for a change in the way this House deals with European policy. Is not the logic of his argument, however, that we need to go back to an earlier stage, whereby we as legislators should be involved, pre-negotiations and pre-discussions, in thematic debates and policy statements so that we can make some input to the Commission and the institutions of Europe? Does he accept that?
Michael Connarty
I not only accept it; I fully endorse and applaud it. There is a work programme that comes forward from the European Commission, and it is debated in Westminster Hall, but very few people turn up: that is the reality. We have tried to engage a number of Select Committees by referring to them matters of interest to the European Scrutiny Committee, which continues to be chaired ably by the hon. Member for Stone (Mr Cash). We are trying to engage Select Committees in those issues so that the European Scrutiny Committee and then the House could be advised of any European matters of substance that should be considered.
We could therefore change aspects of the apparatus we use before reaching the point to which the new clause refers, where a Minister is recommending a referendum. When this clause is triggered, the Government will have decided that they want to do whatever it is the referendum has been called to consider. It will be a referendum on a Government proposal, perhaps for a new treaty or a new decision that will change our relationship with Europe.
Let me finish by providing one example. We took a decision a long time ago—it was probably agreed across the Chamber because it was politically sensitive for us not to opt into all of the Amsterdam treaty—whereby we did not become members of the Schengen group of countries. That group is effectively all the European Union countries apart from us. Frontex, the new border police, is now trying to throw a ring around Europe and it is going to be heavily pressurised by migration from other parts of the world—particularly from Africa, and perhaps very quickly from north Africa. We are not a member of Frontex because we are not a Schengen country. We sit on the board—Frontex has been quite nice to us, even though we did not sign up to it—so we asked whether any of our officers engaged in a Frontex operation could have the same protection from prosecution as other Frontex officers. We are told “No, because you are not a member of the Schengen group.” The train is leaving the station very quickly to protect the rest of Europe, and the United Kingdom is running at the back waving a little flag saying “Can we join? But we do not want to be full members.”
We ought to be fully informed of the consequences of decisions such as that. I am not talking about those who are, for reasons of prejudice, Eurosceptic and against doing things on an EU basis, in the belief that they can somehow be done on a bilateral basis with 26 other countries. If we had been fully informed, we would have concluded that membership of Frontex was important enough for us to take the step of joining the Schengen countries and being a real part of Europe.
Although such information and debate would be extremely useful, that will not be made possible by the new clause, and I therefore hope that it will be withdrawn. However, we need to make those changes in the Chamber if our constituents are to understand that we know what we are talking about in Europe, and that we are acting on the basis of analysis and proper information rather than prejudice.
Charlie Elphicke
It is a privilege to follow the extraordinarily interesting and thoughtful speech of the hon. Member for Linlithgow and East Falkirk (Michael Connarty). The debate on the new clause has been largely underpinned by a dislike and distrust of the European Union and its works, and I share that distrust. Many Members feel that an organisation that spends vast swathes of our money and imposes massive increases in our budget contributions in return for no obvious value, at a time of great downturn across the continent, is not an organisation that is in touch with this country—or any other country. They do not trust an organisation that feels so remote from the electors of this country and every other country in the European Union. Even in Germany, an increasing number of people are finding the European Union and its works troubling.
Martin Horwood
The hon. Gentleman says that he attaches no obvious value to the European Union. Does he exclude from that the EU’s important contribution to world climate change and trade negotiations? Does he exclude the European arrest warrant, which enables us to fight terrorism across international borders? Surely those things have some value.
Charlie Elphicke
They could all have been achieved by nation states. Obviously we welcome the ability to do some things on a wider and more agreed basis, but we do not want the spider’s web of intrusion into our national lives and the lives of member states that we have seen in the European Union. That is why many Members object to it and say, “We don’t trust anything that happens there.” Every time there is a treaty negotiation the spider’s web creeps further out, more of our money is sucked in, and more of our national vitality is taken away from us and planted in Brussels.
I am merely recording the sentiments that, in my view, underlie the new clause. It is felt that we have been shut out of the process, and that we do not have a say. For the last 20 or 30 years, the Governments of all the member states in Europe have been saying that they have secured great deals in Europe, but the general public in countries throughout the European Union have a sense that they have, to some extent, been sold down the river.
The new clause is underpinned by questions such as, “What are the amendments that you are moving? What are the discussions that you are having? What really happened behind those closed doors?” I understand that view, but although I share the deep concern that has been expressed about our involvement, and future involvement, in the European Union, I am not sure that the new clause represents the right way in which to deal with it. There is a balance to be achieved, given the inevitable tension between transparency and the need for negotiations. I am a massive fan of transparency, because I want to know how the European Union spends our money, and I want government that is accountable to our people. Dare I say it, I want government of the people, by the people, for the people. On the other hand, we must take part in negotiations, and we must ensure that our negotiating position does not blow up in our faces.
Many examples can be given. The Cabinet meets in secret, and we do not learn what happened until some years later; the NATO councils and some of the United Nations councils meet in secret as well. Traditionally, relations between member states tend not to be published on a case-by-case basis. I have listened with interest to the argument being put that the Council of Ministers is not an executive organisation but a legislature. That is a technical, semantic argument about what is really a negotiation between Governments of member states—it is an intergovernmental negotiation.
I have grave misgivings about giving away our negotiating position and telling other nations, which we want to squeeze for a better deal, where our top and bottom lines are in that negotiation process. I make that point because I must tell the House, with regret, that I used to be a law firm partner—I was a poacher before I turned gamekeeper—and in that time I would negotiate for my clients against the lawyer on the other side of the table who was representing their client. I did not want to tell them what I was going to concede; I did not want them to have an idea of what I and my client might, and might not, give away in future negotiations. I did not want to reveal where the lines of debate were or when I would say, “No further,” because if I had I would not have got the best deal. Just as in those times I wanted to get the best deal for my clients, in these times I want to get the best deal for my clients, who are now the people of Dover, and the nation as a whole.
Stephen Phillips
Actually, my hon. Friend is a gamekeeper turned poacher. He is making a compelling argument about not giving away our negotiating position to other EU member states. The difficulty here, however, is to do with the use of the word “relevant” in the new clause. Does that mean that under this clause we would disclose information that would not already have been known to other nation states? In that case I can see the point of his argument. However, if it means something different, it may not have that effect. Does he have any grip on what the word “relevant” means here, and does this problem not underline why the new clause should not be added to the Bill?
Charlie Elphicke
I completely agree, and I was about to turn to that argument.
The new clause is important in prompting a debate that should be had—and might previously have been had—about the relationship between this House and the Executive in respect of our negotiations in Europe. [Interruption.] The hon. Member for Birmingham, Edgbaston (Ms Stuart) nods from a sedentary position. This is a very important point, which goes to the heart of things, and it is why I asked about the situation in Denmark. I did so not in order to trip her up but because I was genuinely interested and knew that, as she is an expert on European matters, including the Council of Ministers, she would have experience to share on that subject.
The phrase “relevant documentation” in the new clause is not, of course, defined; it could mean anything or nothing. That is a technical deficiency, therefore. I also think that there is a technical deficiency in the phrase, “amendments sponsored”. I asked the former Europe Minister, the right hon. Member for Rotherham (Mr MacShane), how amendments are dealt with in Europe: is an amendment tabled and moved, or is there a nice bit of Euro chit-chat and then everyone comes to an agreement at the end? The hon. Member for Birmingham, Edgbaston can correct me if I am wrong, but my impression is that it is a bit of a mishmash of everything, and out of the sausage machine of discussion comes a new piece of Euro-legislation, freshly approved with the mark of Europe stamped on it.
Ms Gisela Stuart
I fear the hon. Gentleman is absolutely right. The Austro-Hungarian empire would have called the process “durchwurschteln” as it is a sort of sausage machine. I congratulate the hon. Gentleman on having such a good grasp of what goes on even though he has never been inside any of those negotiating rooms in Europe. The key problem is that the practice and the theory are so far from what we think they are. That is why I thought it was so important to try to open the door on what goes on, and it also highlights why it is important to keep asking questions about how these things work.
Charlie Elphicke
I thank the hon. Lady, and I am humbled by her kind words and great generosity. An important issue of transparency is involved here. We want negotiations to go on; we do not want to have everything picked over later, to risk our negotiating position in future and to risk our relationship with other member states. They might not want some of their information put into the public domain.
I want discussion to be full and frank. Why is that? I do not know how anybody else feels, but I remember that this country went through a phase of “sofa government”, when there were no minutes, no notes and no discussion. Not everybody thinks that that was a high point of our national life. Some people think that it was a particular low point because little deals got cut on sofas, in corridors and far away from anyone taking any minutes. That is the risk when we say, “Let us know what goes on behind closed doors.” Funnily enough, this sort of thing will not go on behind closed doors; it will go on in closed corridors and on sofas. I worry about that, because it is a real concern.
Charlie Elphicke
That is exactly the argument that I seek to put. There is massive distrust of the European Union in this House, and massive suspicion that Ministers—of all parties—go to Brussels and sell us down the river without our knowing what goes on. Meanwhile, our electors give us a good kicking about why this, that and the other happened, and we cannot really explain why it happened and what our role in it was. So there is an accountability deficit.
Denmark has an open process, whereby its Folketing’s European affairs committee meets in public and agrees a mandate system, as the hon. Member for Birmingham, Edgbaston told us. It says, “This is your up line and this is your down line. Go off to Europe and negotiate.” The process is public so, as she beautifully put it, people do not need to worry about Denmark because they know where it stands. People count it in or count it out, and negotiate with everyone else. I suspect that Denmark is left out of negotiations because people say, “We don’t need to cut a deal with those guys.”
Ms Stuart
The difference is that although Finland mandates, the mandate can still be negotiated with its Parliament, whereas the Danes are mandated and the Ministers cannot change their minds. They are therefore at the meeting simply to say what their Parliament has told them. The Finnish system is better because it still allows for mandating movement.
Charlie Elphicke
Beautifully put, as ever, by the hon. Lady, who describes the problem exactly. The Danes’ mandate becomes an open negotiating position and they lose their ability to be flexible and to push other member states in the give and take that sits at the heart of true business or governmental negotiations.
Finland, like Denmark, does involve its national legislature, but the difference is that in Finland this is done in private. The Finnish grand committee meets in private, away from the cameras and the spotlight, so it can have that important discussion.
I do not know what other Members think, but I believe that my hon. Friend the Member for Stone (Mr Cash) has some good points to make. He makes them with great passion and often at great length, and he is well informed. He passes the Linlithgow test, because he reads all those boring papers, whereas all the rest of us put our heads in our hands and then flip through them quickly to pick out the main points. My hon. Friend actually reads this stuff—I do not know how he does it, but he does—so he is able to have a substantial and serious discussion about the issues. I put it to the Minister—I hope that he will respond in due course—that we need a mechanism, perhaps a Committee system, whereby those hon. Members who are interested, even obsessed, with the European Union can represent the House’s interests and hold discussions in private, as the Finnish grand committee does, before a negotiation happens.
The Intelligence and Security Committee knows what goes on, and therefore builds in some democratic accountability, but it does not blab to everyone exactly what our spies are up to around the world and what our security interests are. If it were possible to have a mechanism similar to the grand committee system in Finland, so that Parliament could be involved, perhaps there would be a greater sense of trust and a greater sense not only that we have the essential transparency, but that we do not send our Ministers in to bat in Brussels with—as I think a former Prime Minister put it—one arm tied behind their backs, so that they cannot negotiate in this country’s fullest interests.
Mr Buckland
My hon. Friend makes a powerful case in relation to Finland. Does he not agree that the system in Sweden, which is quite similar to that in Finland, would provide a useful way forward? Such a committee could meet, usually in closed session, and give a mandate to the Minister. The Minister would have discretion to depart from that mandate, but the position would be clearly defined before the Minister went to the Council. That has all the attractions of the systems that my hon. Friend has been ably advocating.
Charlie Elphicke
My hon. Friend makes a powerful point. I do not think that it is for me, as a Back Bencher, to find the detailed solution, but those who are senior in the House, such as Front Benchers, should consider the other models of accountability used in Europe. They should consider the fact that we want accountability and transparency, without prejudicing the United Kingdom’s negotiating position in the discussions that are held in European Councils. So long as we have to put up with being a member of the European Union—or, indeed, are enthused by that fact—we need to negotiate well and get the best possible deal for this country.
Martin Horwood
I originally intended to speak in support of the comments made earlier in the debate by my Gloucestershire neighbour, the hon. Member for Stroud (Neil Carmichael), but I found myself in a surprising degree of agreement with the hon. Member for Dover (Charlie Elphicke), who gave a learned analysis of the implications of the new clause, as opposed to its intent.
As described by the hon. Member for Birmingham, Edgbaston (Ms Stuart) and others, the intention is to create more transparency and openness—that is obviously a good thing, which we would all support—but somewhere in the drafting of the new clause it has become a little confused, or perhaps awkward, in the attempt to bring it within the scope of the Bill.
The effect of the new clause would be to reveal a great deal of documentation, but after the decision had been taken. The decision to which the statement under clause 5 related would have already happened. Although much of the documentation would be relevant in the sense that it related to that decision, it might not prove to be very pertinent to the decision. Much of it might be advice, even legal advice, that was ultimately rejected. So it would not have materially affected the decision under consideration. What really mattered would be the outcome, and the proposals that the British Government were putting to Parliament and, perhaps even in a referendum, to the people of this country. We could discuss that without the benefit of all the paperwork that had been discarded earlier in the process.
The second problem with the new clause is that a lot of what the hon. Member for Birmingham, Edgbaston said was about trying to add transparency to the process at European level—to the Commission’s decision-making processes and the debate in the Council of Ministers. The hon. Member for North East Somerset (Jacob Rees-Mogg) compared that to the former secrecy of debates in this Chamber, but the new clause would not reveal the debate that took place at European level. It would reveal only the background paperwork, which would be rather like getting a House of Commons briefing, but with no copy of Hansard to follow.
The new clause would not bring great openness or transparency to European processes. The only transparency that it would provide would be on the British negotiating position. Then we would start to have a problem, because although that would be revealed after the event, the nature of the advice, especially the legal advice, could have profound implications for future negotiations. If we revealed all that documentation, that would clearly impact on the position of British Ministers in subsequent negotiations. It would almost certainly impact on the advice, especially legal advice, that officials felt able to give to Ministers, because they would know that it was not private advice, but would become public in due course. Clearly, that would put British Ministers at a disadvantage relative to other Ministers in the European Council. It would undermine the British interest and thereby achieve, presumably, the reverse of what the new clause intends. It would, in a real sense, send British Ministers naked into the Council of Ministers. In some cases, that is a very sobering thought indeed.
Mr Ian Davidson (Glasgow South West) (Lab/Co-op)
Has not the Liberal position traditionally been to want British Ministers to go naked into the conference chamber of the EU? Does the hon. Gentleman agree that his and his colleagues’ Europhile tendencies contributed towards the Liberals’ stunning success in coming sixth in the Barnsley by-election?
Martin Horwood
I am not sure that we have a party policy on nakedness in general—although I shall certainly consult my colleagues on that.
I shall not detain the House long, but it seems clear that the new clause would result in the undermining of the British interest in terms of ministerial participation in negotiations. There may be measures that should be introduced to add more transparency and openness to the EU at Commission level, and certainly at Council of Ministers level, and I am sure that I, and Liberal Democrat Euro MPs and Members of this Parliament, would be sympathetic to them. There may even be methods that we should explore similar to the Finnish model about which we have heard so much. Those would also be greeted with a lot of sympathy, but the new clause would not deliver any of those things, so I am afraid that hon. Members should throw it out.
Ben Gummer (Ipswich) (Con)
My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) reminded us that the purpose of the new clause is to deal with the manifest lack of trust that the public have in the negotiation, on behalf of the British public, of grave constitutional issues in the European Council and elsewhere. The new clause would itself introduce a considerable constitutional change, and I hope that hon. Members will allow me to say that I would find that not a necessarily unhappy change, but a change none the less. That is the fact that, heretofore, Ministers of the Crown negotiated and treated on behalf of the British people and of the Crown, and Parliament, if it saw fit, studied the results of that treaty after the event.
That is not necessarily a good way for Ministers to discuss the nation’s interests in the councils of the world, but it is the situation as it stands. I would suggest, therefore, that if we are to see a change to that protocol—as was, to a degree, anticipated by the previous Government in their discussions on the royal prerogative—it may be appropriate to consider in the round the other international bodies and instruments to which we are party, and not just our relationship with the EU.
Hon. Members have rightly said that the EU is of considerable concern to many of our constituents. It is, but so are our World Trade Organisation negotiations. The EU has not yet created a riot on the streets outside Parliament—not yet, at least—yet a few years ago we had the anti-globalisation riots, which arose directly out of our negotiations in the WTO.
Mr Davidson
Does the hon. Gentleman agree that our constituents generally take European matters much more seriously than almost any other international matter? Proof of that is the fact that in the Barnsley by-election, the UK Independence party managed to beat the Conservatives. What does that say about public confidence in the Conservatives’ position on Europe?
Ben Gummer
The hon. Gentleman has made a powerful point, but the public often have interests beyond the European Union. So far they have created a riot on trade issues. I happen not to agree with what the rioters were doing or with their motives, but the matter raises extreme passion among our constituents. Members know perfectly well that we are regularly written to by people who are concerned about globalisation and world trade rules. Our negotiations in the Security Council are another case in point. We as a nation are currently discussing Libya, a matter of considerable concern to our constituents. Perhaps we could have an understanding of the Government’s negotiating position on that, so that we might study and better understand what the Government plan to do.
Our constituents have considerable concerns about security matters with the United States, Commonwealth allies and other partners. I have been written to far more often about our security co-operation arrangements with other nations than about the European Union. Here, too, it might be appropriate for the House to have some sort of structure, such as that proposed by my hon. Friends the Members for Dover (Charlie Elphicke) and for South Swindon (Mr Buckland), whereby we see what the Government propose, in anticipation of their negotiating.
In the matter of declaring war, the House had a cursory and temporary assessment of the merits of conducting war against Iraq. It is shameful that even the papers relating to that cannot be released to the Iraq inquiry so that we might see the decision-making moments that happened in that most extraordinary and important decision that the House and the Government have taken in the past decade.
Although I support the broad thrust of the new clause, it would be more appropriate to consider all the international organs and bodies on which we sit, and to do so on the basis of a much wider consideration of the constitutional powers that our Ministers wield when they are negotiating and treating on our behalf.
Mr Greg Knight (East Yorkshire) (Con)
I think my hon. Friend is making a strong case for a full and wide review of the royal prerogative. Is that what he is arguing for?
Ben Gummer
My right hon. Friend has expressed that with much greater concision than I have managed, and embarrassed me in the process.
There is so much concision in the new clause that it is difficult to understand precisely what the proposers are getting at. It says that the papers relating to the negotiations should be released
“during negotiation of the treaty or decision.”
One of the proposers, the hon. Member for Birmingham, Edgbaston (Ms Stuart), related the negotiation of the European working time directive and the fact that it took from 1992 to 1999 to make that decision. At which point during that long negotiation would the papers relating to it be released to the House? If released after the negotiation had been concluded in 1999, would they have helped to understand the Government’s position in 1992?
Ms Gisela Stuart
The release of the papers would indeed have helped. The subsequent interpretation of the working time directive and the detail of how it should operate by the Court of Justice would have made it clear that none of the Governments involved in the original negotiations had intended certain interpretations to be made. That would have strengthened the House’s hand in saying, “No, that’s not what was intended, even by our Ministers.”
Ben Gummer
The hon. Lady has clarified that beautifully. It argues for wider consideration of such issues in the kind of structure anticipated by my hon. Friends and the process in Finland that she described.
There is a broader transparency that the House enjoys, which is to put to the electorate a manifesto at the time of elections. In the past 10 years a party has put forward a manifesto proposing a referendum on the European constitution, lately called the Lisbon treaty, yet that referendum was never granted. The purpose of this Bill is to ensure that such mendacity cannot be repeated. I therefore propose that the new clause be advanced at a later stage and on a wider basis, but I support the broader purposes of the Bill.
Laura Sandys
Does my hon. Friend agree that taking that proposal forward and evolving it over the next couple of years and months must be done on a multilateral basis, not a unilateral UK basis?
Ben Gummer
My hon. Friend makes an important point, because it is patently obvious how difficult it is for the United States, our ally, to negotiate at the moment, following the unilateral release of its documents to the world’s media, which was not its choice. If this is to be done, clearly it must be on a multilateral basis, especially with our key allies in the Commonwealth and the United States, as well as those in Europe.
I support the main aims of the Bill. I am greatly attracted to the thrust of the new clause, but I suspect that it would have more power and greater reach if it were advanced at a different stage and on a wider basis.
Mr Buckland
I want to make a few brief remarks about what is, on the face of it, a very laudable new clause. It is proposed by a number of Members whose reputations for seeking more openness in the transactions of government precede them. However, I hesitate to support it for several reasons, many of which have been ably outlined by other Members during the debate. In an intervention, my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) really got to the heart of one problem with the terminology used in the new clause, particularly the word “relevant”, which is used in subsections (1) and (2).
Mr Buckland
I disagree, because I think that the term used in the Bill in relation to significance is very well couched. It has been explained very carefully and is backed up by a careful and clear text. There is a list in the Bill of the particular aspects that will trigger a referendum. I am afraid that I do not think that our points about those two words are analogous.
The word “relevant”, which I am focusing on, causes lawyers and all those with an interest in the law much difficulty in a wide range of issues. For example, an application for relevant documentation made before a criminal trial can cause much debate and argument on precisely what the term means. Frankly, I can see the same thing happening with the new clause and the issue going before the courts. In other words, I can see a judicial review of a particular laying of documentation by a Minister as part of the process, which again would make juridicable those issues that are properly dealt with by this House. I do not think that that is the intention of the Members who tabled the new clause, but it would be an unfortunate and unforeseen consequence of the use of that terminology, because what is relevant to one person will not be relevant to another. I can see a long and exhaustive list of documents being laid before the House and yet more requests being made for further documentation, which will then have to be ruled on by a court. Those would be regrettable consequences that none of us wants to see.
Another main problem with this rather wide-ranging new clause is the fact that not all the documents would be in the possession or ownership of the UK Government. It is clear from the phrasing of the new clause that many of the documents will have been drafted by either EU officials or other member states. Therefore, they are not under the ownership or control of the UK Government; they are what we call third-party documents.
The new clause would therefore have a great impact on the position of other member states and the institutions of the European Union. As we have heard, from my hon. Friend the Member for Dover (Charlie Elphicke) in particular, other member states have their own procedures and ways of dealing with pre-negotiation positions, and many are dealt with in secret. Are we to say that this House has a right to interfere directly with the procedures of other member states?
My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd), in his eloquent speech, said that what is for the Danes is a matter for them, but I am afraid that the new clause would drive a coach and horses through that, because what is for the Danes would no longer be a matter for them; it would become a matter for us. In effect, we would decide to disclose documentation that they, under their procedures, did not want formally disclosed, and that would have a consequence for our relations with other member states in the context of freedom of information.
Such a decision would also have a consequence for existing regulations on access to EU documents. The current regulations, to which this country is a signatory, provide rights of access to documents held by EU institutions, and with the consent of those institutions the documents can then be disclosed to the public. The new clause would override and potentially conflict with that rule, and that is a problem—a practical difficulty—which makes questionable the fundamental deliverability of the aims of the proposed change. We cannot legislate in a vacuum, and we cannot ignore the rules of other member states or the rules and regulations to which we are a signatory.
Ironically, in an attempt to assert the power of this House to scrutinise negotiation and legislation, we risk interfering directly with the domestic arrangements of other member states, and I am absolutely sure that many who have spoken in today’s debate, who always speak so eloquently about the rights of nation states in the European Union, would not want that to happen.
I yield to no one in my fervent belief in transparency and openness. I believe fundamentally that some of the previous Government’s conduct was a negation of democracy, and, if the European Union is to be sustained as an institution that is worthy of the trust and support of not just its members but its peoples, much more must be done to increase that transparency.
Finally, I also believe fundamentally that we have to be realistic and strike a balance between the interests of openness and the interests of efficient and effective negotiation. My hon. Friend the Member for Dover, in his speech—
Mr Buckland
His excellent speech; I am happy to be corrected. My hon. Friend the Member for Dover made an important and helpful analogy between the negotiations that he as a lawyer would conduct on behalf of his clients and the work of Ministers representing this country in the Council of Ministers and in other European institutions. He quite rightly said that it would be—I paraphrase somewhat—rather absurd for him to be forced to reveal to his opponents his entire menu of options during a negotiation.
I adopt that analogy but take it one stage further: it would be even more absurd for my hon. Friend, as a lawyer justifying his decision to his clients, then to be forced to disclose not only the documents that he generated as a result of his negotiation, but the documents generated by his opponents. That would potentially prejudice not only his position but that of another party to the negotiations. Indeed, I am sure that he took part in negotiations with more than one party.
The Minister for Europe (Mr David Lidington)
This has been a genuinely interesting debate which—somewhat unusually for European debates, dare I say it—has developed in a way that I did not altogether anticipate. We started by discussing a new clause dealing with transparency and public and parliamentary access to information concerning European negotiations, but as the debate continued it developed along the broader theme of the adequacy or inadequacy of our current arrangements for the scrutiny of decisions taken by successive Governments of the United Kingdom on behalf of Parliament and people within the institutions of the European Union. I thank all right hon. and hon. Members who have taken part in the debate.
The key choice that has to be borne in mind in considering the proposition put forward in the new clause tabled by my hon. Friend the Member for Hertsmere (Mr Clappison) and the hon. Member for Birmingham, Edgbaston (Ms Stuart) concerns the most effective balance between, on one hand, appropriate access to information that provides the flexibility to allow citizens and other interested parties to see documents that contributed to policy making and, on the other hand, the need to preserve a space for candid, confidential discussion, deliberation and negotiation to ensure the best possible outcome in the interests of our country. I have sympathy for many of the arguments—certainly the motivations—of the hon. Members who tabled the new clause, but I do not think that it would deliver the right balance. I will make my arguments in more detail in due course, but I hope that at the end of the debate they will not press the motion to a Division.
I want to start by addressing some of the broader issues that have been raised. The hon. Member for Birmingham, Edgbaston said that we needed to know when and how Ministers voted. Of course, one of the changes introduced by Lisbon is that we have new rules for the workings of the Council, including not only a public record but a public broadcast of the final deliberations at a Council session on legislative dossiers. At that point, it is apparent how each member state has voted, if indeed there is a formal division, and the arguments or the statement of position that the Minister or other representative of a member state chooses to put forward are also be made public. I have sat through a number of those public sessions over the past 10 months. I do not think that they will ever command a mass audience on a Saturday evening. I am not aware that they have ever been broadcast as part of the regular prime-time news bulletins in this country or any other member state.
The new clause and many of the contributions to the debate have tried to get at how Parliament, on behalf of the public, can hold Ministers to account more effectively, not just for that final, often rather formal, process of taking a decision on live TV, but for how the negotiating position of the United Kingdom is shaped in the numerous bilateral contacts and contacts with European institutions that are undertaken by Ministers and officials, sometimes over many months. A number of ideas have been suggested. My hon. Friend the Member for Ipswich (Ben Gummer) said that we need to look at the matter in the context not only of the EU, but of our participation in other international institutions and considering the use of royal prerogative powers more generally.
It is interesting that no hon. Member has mentioned the House of Lords, which has distinct and different scrutiny arrangements. There is a question for parliamentarians at both ends of this building as to what methods of scrutiny experience teaches us work best and most effectively. If Government and Parliament are to agree on new scrutiny arrangements, the position of both Houses will have to be taken into account.
Mr Cash
I am sure that the Minister would not want to misrepresent the differences between the two Scrutiny Committees. I know he is aware that the House of Lords has more generalised debates, whereas under our Standing Orders, our debates relate to particular legislative documents. To align the two might be a bit of a mistake.
Mr Lidington
That would be a matter for debate. I have heard dissatisfaction with the current scrutiny arrangements and a wish to explore the alternatives from several Members from all parts of the House this afternoon. At the moment, we have a model in the House of Commons and a model in the House of Lords. This business is done in various ways in other member states. Such a debate would take all those approaches into account.
The hon. Member for Linlithgow and East Falkirk (Michael Connarty) and my hon. Friends the Members for Dover (Charlie Elphicke), for South Swindon (Mr Buckland) and for Cheltenham (Martin Horwood) talked more generally about how we could improve our scrutiny arrangements. It seems to me that we need to keep the distinction between Parliament and Executive clearly in mind. Parliament’s role is to hold Ministers to account for their decisions, not to take on the role of the Minister. There is a strong case for saying to Parliament—perhaps I should be more cautious and say suggesting to Parliament—that rather than drowning parliamentarians in paperwork, about which the hon. Member for Linlithgow and East Falkirk made a good point, Parliament and its Scrutiny Committees could seek to call Ministers before them, including in advance of Council decisions rather than necessarily waiting for the final version.
Ms Gisela Stuart
Will the Minister say how he thinks the House can overcome the problem of collective memory? In Whitehall, there is collective memory within the Administration, and if there is a change of Government, it is handed from one Administration to the next. Parliament has overcome the problem through successive Select Committees. However, if the knowledge is not in Parliament, once an Administration are gone it has no access.
Mr Lidington
When speaking on behalf of the Government, I must be careful not to presume to represent a collective Government position that does not yet exist, nor to pre-empt the views of parliamentarians from all parts of the House on the most appropriate method of scrutiny.
Mr Cash
The Minister is moving away from the proposals put forward by the hon. Member for Birmingham, Edgbaston (Ms Stuart) into a much deeper question, and I know that he is taking this opportunity to do so. As Chairman of the European Scrutiny Committee, I ask him to consider also that because the decisions made by the Council of Ministers are of a legislative character and are binding on Parliament through section 2 of the European Communities Act 1972, it is incumbent on him to consider the idea—in fact, to implement it—that Parliament may decide to vote against proposals that have been cultivated by the Government and to reject provisions that have been decided in the Council of Ministers. Perhaps the Minister can throw that point into the pool of his considerations.
Mr Lidington
That is clearly already possible under our system if a European measure comes forward that requires primary or secondary legislation to transpose it into the law of the United Kingdom. It is up to the Government of the day, of whichever party or parties it is composed, to retain the confidence of Parliament and to persuade a majority in Parliament to endorse their preferred approach.
The hon. Member for Birmingham, Edgbaston challenged me on the question of collective memory. The hon. Member for Linlithgow and East Falkirk said that he regretted the switch from European Standing Committees with fixed memberships to European Committees with shifting memberships. I spent my first Parliament, among other things, doing duty on European Standing Committee A. There is no doubt that I learned a great deal by virtue of that continuity, not least through the example of the late and great Gwyneth Dunwoody on how to hold Ministers to account. She used to deliver a master class in reading the documents in advance and picking out the weaknesses in the Government’s argument.
Michael Connarty
I could share many happy memories of that lady turning up in Standing Committees of which she was not a member and holding Ministers to account because of her interest in the subject. Cross-border health care, for example, although not her speciality, was a cause célèbre for her.
I compliment the previous Government and the present Government for continuing to send draft Council conclusions to the European Scrutiny Committee. That is what a lot of Members, such as the hon. Member for Dover (Charlie Elphicke), have been talking about—actually seeing the proposals that are before the Council before they are discussed in the Council. The difficulty is that they are “limité” documents and are therefore semi-confidential. If there was a method that allowed a Committee or group of people in Parliament to have that responsibility—as is done in Denmark and Finland—and to interrogate the Minister on those documents, it would be a great step forward.
Mr Lidington
That is certainly an interesting suggestion. I am grateful to the hon. Gentleman for his compliment. We intend to continue the practice of supplying “limité” documents whenever appropriate.
There is sometimes an issue about where the boundary of responsibility should lie between the European Scrutiny Committee and the various departmental Select Committees. If I have one reflection to offer from my experience in the 10 months that I have held my responsibilities, it is that parliamentary debate on this country’s engagement with the EU tends to take place in a metaphorical annexe. It is as though Parliament had constructed a separate, padded building, where the equivalent of the teenagers with their drum kits could get up to what they wanted. There is a serious question to be asked about whether our arrangements do justice to the fact that the European decision-making and legislative process should now be regarded as part of the mainstream of politics in the UK, rather than as something that can be relegated to an annexe.
Mr Cash
I would very much welcome the idea of having, for example, European questions in the House. I have many proposals that would make the system more efficient. I remind my right hon. Friend of the current Home Secretary’s pamphlet, which recommended not only that European Committees should have their proceedings properly advertised, but that if, for example, 150 Members decided that they wanted to have the matter in question debated on the Floor of the House, there should be a free vote on a motion to overturn a decision taken in the Council of Ministers, whether or not the Government had approved the provision there. Some of us would be more interested in the results of a vote than in a mere discussion.
Mr Deputy Speaker (Mr Nigel Evans)
Order. Can we bring the debate back, please, to new clause 1?
Mr Lidington
I will try to bring this part of my speech to a conclusion, Mr Deputy Speaker, by saying that this has been an interesting discussion of the broader themes involved. We have heard allusions to various Scandinavian models of European scrutiny.
Mr David
Before the Minister finally moves on, I point out that I have been thinking long and hard about what to buy the hon. Member for Stone (Mr Cash) for Christmas, and now I am going to buy him a drum kit.
I welcome the tone and content of the Minister’s comments about having more scrutiny in the House. May I suggest to him that we really need to reinstate the twice-yearly debate about Europe before the Council meetings? Before he responds that that is an issue for the Backbench Business Committee, I once again implore him to ensure that Government time is provided for those debates.
Mr Lidington
I know that the hon. Gentleman has at least been consistent in pushing that line, but I have to remind him that his party, when it was in office, and all other parties, agreed unanimously to changes to our procedures and the organisation of parliamentary time that explicitly gave responsibility for those biannual debates on European matters to the Backbench Business Committee rather than the Government.
We have heard this afternoon about the importance of decisions in the EU to everybody in the country, and it would be a good expression of Parliament’s understanding of that point if Back Benchers of all parties put pressure on the Backbench Business Committee to make a debate on Europe a priority, instead of debates on the other matters that the Committee has chosen in response to Back Benchers’ demands. Back Benchers’ priorities should be debated in Back-Bench time, and I believe that most of us present this evening would like the Committee to feel that a debate on Europe was what Back Benchers wanted. I hope the hon. Gentleman will persuade his colleagues of that.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. I am sure that we want to deal with new clause 1, and I am sure the Minister recognises that he is drifting away from the subject. He has been tempted all over the place, but I am sure he will want to deal with what is before us.
Mr Lidington
I simply remind all hon. Members who want to take forward these wider arguments that I said in my written ministerial statement on scrutiny on 20 January, which referred mostly to justice and home affairs, that the Government would
“review the arrangements for engagement on EU issues in consultation with Parliament.”—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]
I invite them to take advantage of that opportunity.
I turn to the detail of new clause 1, which causes me concern because it would result in the United Kingdom having a substantially different policy with regard to information on EU decision making from that on domestic policy making. It would also represent a substantial impediment to the UK’s ability to negotiate effectively in an intergovernmental conference, in the European Council and in the Council of Ministers. As a number of Members have said, it could have a negative impact on our relationship with other member states and the EU institutions, and more generally on the process of good policy making and legislation.
The negative effect on our ability to negotiate at the Council of Ministers concerns me most. First, action to comply with the statutory duty that the new clause would impose on Ministers could reveal sensitive information about the UK’s long-term negotiating approach in a number of areas. I do not believe it is sufficient protection to say that the negotiations would be complete or substantially complete by the time the documents were made available, because it is very rare that negotiating positions taken in respect of one piece of legislation do not have a read-across to positions on other matters that will probably still be live dossiers when that legislation has been agreed to.
Secondly, complying with the new clause would mean that our tactics in negotiations would have to take into account the duty to make negotiating positions on proposed amendments public at a later stage. For example, there are occasions on which we try to persuade other member states to propose, or take the lead on, particular amendments so that we can concentrate our time and energy on different amendments that perhaps have less widespread support. If a Minister knew that he might be criticised if it became public that he had not sponsored a particular amendment, that would constrain our negotiating tactics and weaken our negotiating strategies.
I quite understand that the proponents of the new clause might want to see how a decision is made at EU level and the details of what part the UK has played in that process, but I do not want any Ministers of any Government who are fighting for Britain’s interest in future discussions and negotiations to be doing so with one hand tied behind their back. It is absolutely essential to our national interest that Ministers can negotiate effectively on behalf of our country.
As a number of Members have said, including my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), the new clause would also have implications for information that we have on record about the positions of other member states. There is even a risk that its requirements could put us in conflict with existing European legislation. As a member state of the EU, we are party to the terms of the access to documents regulation, article 5 of which requires that when any member state intends to disclose a document originating from one of the EU institutions, it must consult that institution before public disclosure. If, under the new clause, we had to release a text submitted at a Council working group that included proposed amendments from each member state, and the agreement of the Council as a whole had not been sought or obtained, we could potentially be at risk of infraction proceedings and ultimately a fine. As the new clause is drafted, it is quite possible that our obligations as an EU member state could be at odds with the statutory duty that the new clause would create.
Mr Lidington
The remedy that my hon. Friend seeks can be obtained by Committees and the House being energetic in holding Ministers to account for the positions that they take and for the way in which they agree to whatever compromise is eventually negotiated.
Importantly, the proposed new clause does not specify in any way to what “relevant documentation” refers. That came up earlier in the debate. It is not clear, for example, whether “relevant documentation” covers so-called non-papers submitted by member states, which are intended to be “without prejudice” contributions to discussions. Does it include Council working group documents that give the position in summary of each and every member state on a particular issue? There could easily be widely diverging views on what comprises “relevant documentation”.
That lack of clarity could also cause confusion in relation to UK documents. Reference was made during the debate to whether legal advice given to the Government would be required to be made available under the terms of the proposed new clause. If so, that would clearly undermine the principle of legal professional privilege, the significance of which the Information Commissioner has generally recognised in the context of the Freedom of Information Act. Governments need to receive free and frank legal advice without fearing that it must be drafted in a form that is suitable for later public consumption.
Hon. Members may argue that we should try to use the current renegotiation of the access to documents regulation to implement the provisions of proposed new clause 1, but that measure would take us a long way beyond what would be acceptable in terms of releasing documents that are used at EU level for deliberations and decision making. The positions of other member states in respect of the documents that they make available to their Parliaments and public vary dramatically. Domestic regulations in several states lay out specific criteria on which documents can and cannot be released. Such criteria often allow for a great deal of discretion for Ministers or their officials, or impose strict limitations on the type and origin of documents to be released.
In some member states, the approach is to accept the general principle that as much documentation as possible should be released, with the only limitations being the prevention of harm, with harm often being defined in terms of personal, legal or economic impact.
Mr Lidington
I look forward to visiting my hon. Friend and seeing the framed Hansard extract of my argument. I could return the compliment by wallpapering one of my rooms with the Hansard report of one of his speeches.
Hon. Members referred to a number of EU member states in the debate. Denmark was cited more than once as the prime example of an open country, but the documents that the Danish Government must provide to the European Affairs Committee of the Folketing do not include the positions of other member states or amendments that they have proposed, and nor are the Danish Government required to provide documents that have been prepared for their internal use, such as inter-ministerial correspondence. Even in Denmark, the right of access is subject to limitations when protection of, for example, public financial interests is essential.
Mr Clappison
I am grateful to my right hon. Friend the Minister for the care and attention that he has taken in answering this debate and for the manner in which he has done so. I am sure that it has been of great assistance to the House, and I will now be going to the Library to seek out a copy of the European Union access to documents regulations—I certainly would not want to fall foul of them, given what we have been told this afternoon.
My right hon. Friend has approached the debate in the spirit of the new clause. I am sure that the hon. Member for Birmingham, Edgbaston (Ms Stuart), in drafting the new clause, did not think that it was the finished article. It was a plea for greater transparency, and I hope that it has been taken as such. Despite possible problems with, for example, the phrase “relevant documentation”, what that might include, and what implications might flow from it, I hope at least that on the question of amendments proposed by a Government during treaty negotiations and treaty changes—that is what new clause 1 deals with—whether through the ordinary procedure or the new simplified revision procedure, members of the public and the House will be told what amendments are being, and have been, proposed by the Government, so that we, and members of the public, can judge, in due course, the strength of the Government’s position on what they ultimately recommend. We should be told whether a Government have been consistent in the amendments that they proposed and in what they subsequently recommend.
I will give one example. I was struggling earlier to think of one, although I know that there are a lot of them. During negotiations on the Lisbon treaty, Ministers in the then Government came to the House and advocated a certain clause or course of action, but it was discovered that during the negotiations on the Convention they had advocated exactly the opposite. One prime example was the creation of the European “foreign ministry” itself—the European External Action Service. During the debate, I have helpfully been told by the House of Commons Library that the then
“government’s amendments in the Convention to articles 1-27, III-197.1 describe the term ‘Foreign Minister’ as ‘unacceptable’ arguing that ‘he/she should have no ministry’. The government preferred the term ‘EU external representative’.”
Well we have our external representative—or rather, our High Representative—but perhaps that phrase conceals the fact that she is in reality a Foreign Minister, and the office was originally intend as such. We also have a European “foreign ministry” in the form of the EEAS, even though the then Government did not want it. They then had to come before the House, having apparently lost on that amendment, and argue from the Dispatch Box in favour of the creation of an external action service. The Minister will well remember, as I do, that on that occasion, Conservative Members opposed its creation. In the light of developments since, and what the public have come to learn and think about the EEAS and its conduct, I am not sure that our arguments against it have been entirely disproved. But there we are. That is one example.
The new clause was a plea for transparency. However, I know that there are important matters still to come before the House, and I do not want to delay them by pressing the new clause to a vote. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 2
Parliament Act 1911 in relation to sections 1 to 7
‘(1) The Parliament Act 1911 is amended as follows.
(2) In section 2(1), after “five years” there is inserted “or a Bill amending or repealing sections 1 to 7 of the European Union Act 2011”.’.—(Jacob Rees-Mogg.)
Brought up, and read the First time.
Jacob Rees-Mogg
I beg to move, That the clause be read a Second time.
The purpose of new clause 2 is to exempt most of the Bill from the functioning of the Parliament Act 1911. That would mean that were a Government to attempt to repeal it, they would have to do so with the consent of the House of Lords, without being able to re-present it a year later and get it into law regardless. The new clause would give the same protection to the rights of the British people to vote in a referendum on European matters as exists concerning the length of a Parliament.
It is one of the ironies of our constitutional system that the unelected Chamber has since 1911 been the final guardian of the democratic rights of the British people. Since 1911, it has been impossible to lengthen a Parliament without the willing consent of the House of Lords. It is the one part of the Parliament Act that the House of Commons cannot simply override. The last extension of a Parliament came, I think, in 1944, as a final extension—until the war had been completed—of the wartime Parliament. That principle clearly applies to referendum Bills, which relate to a right of the British people to exercise their democratic choice that should not be taken away from them lightly, and should be as protected as anything within the constitution can be.
It is worth mentioning—I hope that the Minister will be interested in this point—that one criticism has been made of the Bill by people who otherwise are sympathetic to it. It is that an incoming Government who wanted to push through the euro, or whatever, could simply repeal this legislation and go ahead with what they wanted to do anyway. Quite rightly, no Act of a Parliament can bind its successors, but the Bill contains no protection at all against a Government who do not want to follow it. Given that the whole purpose of the Bill is to protect the rights of the British people from further Europeanisation, it would be extremely sensible to exempt it from the Parliament Act in order to strengthen it. That would remove the one criticism made by people who are otherwise well disposed to the Bill. It would make it a stronger Bill, and one more settled in our constitutional situation. I think that many of us would like to see that.
An important constitutional development is noted in volume 1 of the House of Commons European Scrutiny Committee’s 10th report. It is a constitutional development that should concern the House, and on which the House should use its powers to set its seal, as it sees fit. It is essentially the Lord Justice Laws doctrine that came out of the metric martyrs case. He said:
“In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental…And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” and “constitutional” statutes. The two categories must be distinguished on a principled basis.”
Lord Justice Laws went on to set out his definition of a constitutional statute as opposed to an ordinary statute. In the Bills we pass, however, there is no such difference. It is a distinction thought up by the courts, particularly to exempt the European Communities Act 1972 from implied repeal. As a matter of the most urgent constitutional principle, if there are to be two types of Act, it ought to be this House and the House of Lords who decide and determine that, not the judges. The judges are there to determine what we have said and rule on it, not to say that a new type—a whole new category—of law has been created. It seems to me that one of the ways the House could get a round that is to make it clear when we think that a Bill requires particular and special protection. Fortunately—because, as some hon. Members may know, I am a great believer in tradition—we have a precedent for that in the Parliament Act, which allows the House of Lords to be overruled on everything, with the exception of a removal of a democratic right. The parallel with the Bill is exact: it is a protection dealing with a constitutional situation developed by the Lord Justice Laws doctrine.
Martin Horwood
With the hon. Gentleman’s combination of eloquence, erudition and traditionalism, he is well on the way to becoming a national treasure already. However, surely he would admit that he is really making a much better case for a written British constitution making such a distinction, rather than for giving extended powers to the unelected Chamber as the guardian of democracy. That seems quite quirky, even by his standards.
Jacob Rees-Mogg
I thank my hon. Friend for his intervention, but I am afraid that he entirely misses the point. In framing the new clause I have been working within the confines of our unwritten constitution, using the elements and protections that are already there, and extending them to the Bill. I absolutely accept that it is an irony of our constitution, as it already exists, that the protection against a Parliament lengthening its own life is an unelected Chamber a few yards down the way. However, that is the situation in our constitution, and it is one that has been enormously effective for 100 years.
Charlie Elphicke
Does my hon. Friend not agree that his argument would have more force and credibility if the sunlight of democracy shone over the other end of this building?
Jacob Rees-Mogg
If my hon. Friend were to reread the Parliament Act 1911, he would see that it was introduced as an interim measure until the other place was reformed and until such time as the basis for selecting its Members had been changed. Again, therefore, I would say that my new clause is completely sympathetic with the unreformed House of Lords, and as the 1911 Act itself says, it would be part of a bigger reform of the balance of powers between the two Houses if the House of Lords were to be reformed.
I do not wish to take up much time with my new clause. It proposes an extremely simple, straightforward amendment: it serves the single purpose of making the Bill a little bit stronger, it uses a device already extant in our constitution, and it preserves and protects the rights of the British people to have a referendum against something potentially malign.
Michael Connarty
I am grateful to the hon. Gentleman, whose speeches I always read, if not always hear. He is very erudite and thoughtful in what he proposes, but today he seems to be saying that this Bill should be raised to a higher level than all the others passed by this House, apart from the European Communities Act 1972, which was given that status, which he opposes, by the courts. He is trying to put this Bill on a par with that Act, and although he does not like the process whereby the courts allocate that status, he says that it should also be allocated to this Bill, by this place.
Jacob Rees-Mogg
The hon. Gentleman has half got what I have been saying and has half misconstrued it. I do not think it right that laws passed by Parliament should be put on a different level based on what judges think of them retrospectively. I do not think that that is a democratic way of deciding which law is important and which is unimportant. One may think that the judges will always get it right, but what if they decided that the Dangerous Dogs Act 1991 was amazingly important and this Bill was not, so that the 1991 Act could not be impliedly repealed, but one giving people a vote in a referendum could be? What I am saying is that it is better for us to take this power upon ourselves and say, “Okay, this is an important Act. We’re going to put that in, and say that it is exempt from the Parliament Act 1911.”
The hon. Gentleman asked a good question, which is: why start with this particular Bill? The reasons for starting with this Bill are, first, that the judgment putting the 1972 Act on to a higher plane is relatively recent, and secondly, that I was elected to Parliament only last May and have therefore not had the opportunity before to propose such a measure on a major constitutional Bill, other than the Fixed-term Parliaments Bill. The reasons for starting with this Bill are because of that judgment, and because I am now in a position to do this. It would have been a good thing to do earlier, on other constitutional Bills, including on devolution to Scotland.
Austin Mitchell (Great Grimsby) (Lab)
I am always impressed by the hon. Gentleman’s displays of legal knowledge, but surely his whole point is spurious. The judges’ argument is irrelevant and wrong: there is no distinction between some laws passed by Parliament and others. We cannot say that some are constitutional and others are not. That distinction does not exist: they are all of equal standing. The point that he is trying to make is also irrelevant, because he is appealing to a constitution that does not exist. Essentially, the British constitution is what Governments can get away with, and they get away with it in this place.
Jacob Rees-Mogg
I so wish that the hon. Gentleman, who is a most distinguished Eurosceptic, were right, but unfortunately the judges have taken that power to themselves. I return to what Lord Justice Laws said in his judgment on the metric martyrs case:
“Ordinary statutes may be impliedly repealed. Constitutional statutes may not.”
The judges have set up for themselves two different types of Act. It seems to me that we should claim that power back for the democratically elected Chamber of Parliament, and say that when we think an Act is of significant constitutional importance, what we will do is not entrench it—that is against the spirit of our constitution—but give it a modest protection by saying that it can be repealed only with the full consent of both Houses. The great advantage of that, for those of us who remember what happened prior to 1911, is that it would require a Government to win a general election—to go back to the people—before they could get something through the House of Lords, if the House of Lords said no. That happened in 1911, with the reforms to the House of Lords, and in 1832, with the Great Reform Bill. That provision has been an historic and traditional way of protecting our democratic rights—one that, oddly, involves the undemocratic Chamber—and that is why I think it would improve the standing of this Bill. It would protect the democratic rights of the British people and deal with the constitutional situation as it is—as the judges have developed it—rather than the constitutional system as the hon. Gentleman and I might wish it to be.
Charlie Elphicke
It is not only an incredible privilege and honour to listen to the superb eloquence of my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), but an even greater privilege and honour to follow him. Nevertheless, on this occasion I do not follow him in the sense of agreeing with the new clause that he is propounding. I put it to him in an intervention that it was ironic that he was seeking to use the unelected Chamber as the guardian of the people’s democracy. His answer was, “Well, look at the preamble to the 1911 Act.” I was reminded of the dictum of St Augustine of Hippo, who, as I am sure he knows only too well, said, “Make me pure, Lord—but not yet.”
Charlie Elphicke
In one moment.
I do not think that it is an excuse to say that because the House of Lords is partly reformed, we can give it a role as the guardian of our democracy pending the completion of that reform. Given that we have been racing towards the reform set out in the preamble to the 1911 Act for 100 years, it may take another 100 years to complete it—and given the way things carry on in this place, I suspect that we will indeed be waiting for 100 years to come.
Jacob Rees-Mogg
I thank my hon. Friend for giving way, but I just wonder whether he thinks the House of Lords has done a bad job since 1911 in the one area in which it is exempt from the 1911 Act—that is, in defending the right of the British people to have an election at least every five years?
Charlie Elphicke
I do not decry the role of the House of Lords, the excellence of their lordships, the work that they do, their courage or the passion with which they advance their cases. Indeed, it is often said that the debates held in their lordships’ House are far more informed, considered, interesting and informative than our debates in this House. Having been in this place and not that place, I cannot compare the two. Nevertheless, it is a dangerous principle to say, “Let’s include a provision in the Parliament Act to say that the House of Lords should be not only the guardian of five-year Parliaments but the guardian of this Bill, to protect it from being altered.”
I would have much more faith in the proposal if reform of the House of Lords had been completed—something that I hope will come to pass. One of the problems that I have with the House of Lords is not the people in it or their mental ability—many of them are excellent people and their mental ability is far superior to mine—but my concern that they do not hold a democratic mandate. It is an important principle that where we have representatives in our legislature, they should have a mandate from the people. I guess it is because I am a Lincolnian politician—I believe in government for the people, by the people, of the people—that I believe that the sunshine of democracy should permeate our entire legislature, and not just this House. I admit to some radicalism in my thinking on such matters, but I believe it is important that all our politicians should be elected and have a democratic mandate.
Mr Cash
Will my hon. Friend turn his mind to this radical thought? If the House of Lords were to become an elected Chamber, it would not make the slightest bit of difference in respect of the argument that he is presenting, because the Parliament Act would remain on the statute book. The argument that my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has put forward would also apply to an elected House. The question, in a nutshell, is one of judicial supremacy, which is why I strongly support what my hon. Friend the Member for North East Somerset has been saying.
Charlie Elphicke
I take the view that this will be an important Act. It will introduce a referendum lock to ensure that we do not get dragged further into the European Union without consulting the British people. Inevitably, because Parliament is sovereign, it would be able to unravel the Act, to repeal it and to take away the people’s right to have a say in a referendum. That is the right of Parliament, but I do not agree with the argument for entrenching it to the same extent as the Parliament Act, as is suggested in the new clause. The Parliament Act is an entrenchment of our basic right not to have our democracy stolen from us. I would not place this legislation on that same lofty plane. It is important that Acts of Parliament should be able to be changed or repealed by a sovereign Parliament. The political issue is that any person or party that repeals an Act such as this will reap the whirlwind from the electorate. I am happy that we are able to pass and repeal Acts, and that the electorate should have the final say at an election, at which point they can condemn any such behaviour. I shall now give way to my hon. Friend the Member for Northampton South (Mr Binley).
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. Can we conduct the debate through the Chair, please?
Michael Connarty
First, may I compliment the hon. Member for North East Somerset (Jacob Rees-Mogg) on the eloquence both of the construction of his new clause and of his delivery in arguing for it? I believe that the new clause is flawed. He suggested that the evidence that we had received—he kept referring to Lord Justice Laws’ ruling—was correct, but we received evidence from many other people that it was incorrect. It was suggested that we could not establish two tiers of laws just because a judge decided to make a remark in court, and that all laws, including the European Communities Act 1972, stand the same and can have implied amendment and repeal.
If Parliament decided to pass a law here that was contrary to a ruling, directive or regulation of the European Union, it would still stand as a law. The dilemma would then be whether the European Court of Justice would have the right to overrule that decision or whether we would press on our courts our decision in the new Act, which would cause a judgment to be called for in the European Court. If no one called for such a judgment on an Act that we had passed contrary to a regulation or directive of the European Union, it would continue to apply. It would not be knocked down, and no penalties would be imposed on the UK, unless someone called for the European Court of Justice to make a judgment on that new Act. So it was nonsense to suggest that in 1972 we had suddenly created an Act that was incapable of implied repeal or amendment.
Jacob Rees-Mogg
The evidence that we received focused on the “notwithstanding” approach—that is, that one could not accidentally repeal, or move, an Act that was contrary to the 1972 Act; one would have to do it explicitly. That is different from most other Acts of Parliament that can impliedly be repealed. This is where we come back to Lord Justice Laws’ judgment, which has been de facto accepted.
Michael Connarty
Just to remind everyone who reads these tomes, the 1972 Act embodied a decision by this Parliament that laws, directives and regulations drawn up by the European Union should take primacy over an Act covering the same area passed by this Parliament. It was our decision to use our sovereignty to give that primacy as part of the deal of going into the European Union.
My understanding of the evidence is that if we passed an Act that did not contain a “notwithstanding” clause or set out to be a deliberate challenge, and that simply put in place a law that we wished to have, it would have to be challenged and taken to the European Court of Justice before it created any conflict. So the question is: do we accept that that was right and that the judges have the right to do that?
I suggest that if the hon. Member for North East Somerset genuinely wishes to see that change, he should not apply to the good offices of the 1911 Parliament Act. I agree with the hon. Member for Dover (Charlie Elphicke) that it is wrong that we should appeal to an undemocratic institution. I believe that we should look to a justice Act of some kind to determine that judges cannot make such a ruling or decide that there are two kinds of laws in this country. Some people think that the European Union takes up a lot of time, but I think that the more important laws are those that will determine what is going to happen to people’s pensions in this country or to their employment rights. I hope that the hon. Member for North East Somerset will come back to the House with a justice proposal, which I would be happy to support, saying that the courts cannot make a ruling that overrules the right of this democratic Chamber to decide the law of this land.
Austin Mitchell
I am trying to follow the argument, but, being a European argument, it is very difficult to follow. Surely the situation is that if we pass a law that negates the implementation of a European Union law in this country, our courts would have to accept the European Union law rather than ours. We could not pass such a law unless we specifically exempted it from the European Communities Act 1972.
Michael Connarty
My hon. Friend’s point is correct, but that is not what we are talking about. He describes a situation in which this or any Government decided to challenge the original decision. A law could be passed that would continue to run contrary to European Union law; I believe that that is happening in many countries. We and the Norwegians are the most obsessed with trying to get everything right in terms of fitting in with European directives. A challenge could be made, however, and we would then have to decide whether it was right for us to negotiate a change in the relationship or to abandon our law and accept the ruling of the European Union. At the moment, that does not happen.
My main point is that we in this democratically elected Chamber can overturn these decisions at any time if we have the will to do so. We are not bound by them for ever. Like any other law, we will be able to challenge this legislation in this Chamber, which is why I do not believe that we have to go through the rather tortuous, although eloquently described, process of applying an amendment to the Parliament Act 1911.
On the ability of the Lords to protect us from changes to our democracy, they have not protected us from this shabby coalition, which is proposing a law that would guarantee that the coalition would run for five years—a proposal that I spoke against in the first debate in this place after the election—unless the shabby minority part of that shabby coalition, the Liberal Democrats, decide to pull it down, because no other person in this place could do that. If the Lords could protect us from that, I might have more confidence in the 1911 Act.
Mr Cash
I should like to endorse the general thrust of the new clause tabled by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), although I must qualify that slightly by saying that I do not take the view that there is a difference between different types of statute. However, that does not make a material difference to the thrust of his argument, which is that we must at all costs preserve the right of this House ultimately to make the decisions. Indeed, in the 1870s—it might have been earlier—the statesman John Bright put forward the proposition that led to the Parliament Act 1911, some 30 years before it was implemented, precisely because he did not believe in privilege, in aristocracy or in the House of Lords as it was then constituted.
The reality is that we can achieve the objectives by adopting the new clause without necessarily accepting that the House of Lords could not become an elected body if that were the view of this House in due course. I do not accept the proposition put forward by my hon. Friend the Member for Dover (Charlie Elphicke) because so long as we have a second Chamber, the House of Lords will be the House of Lords—irrespective of whether it is elected.
The question of constitutional statutes has been introduced as a notion, but it is not intrinsic to the argument. What is essential is to ensure that we do not allow the Supreme Court to adjudicate over and above the decisions taken by our Parliament. That is the key issue. Some futile commentators—and, if I may say so, some Members of this House—mislead themselves from time to time by suggesting that sovereignty is not such an important issue. The reason for its importance is very simple: we Members are elected to make decisions, and all the other issues, such as dealing with burdens on business and so forth, stem from that. That explains my view of the European Union, which is that, where necessary, the sovereign Parliament should override through the “notwithstanding” formula to which my hon. Friend the Member for North East Somerset rightly referred and which I have employed on a number of occasions when I have been supported by Conservative Front-Bench Members—for example, when we were in opposition and with respect to the Legislative and Regulatory Reform Act 2006, and on other occasions.
What we need to insist on above all—it cropped up in the previous debate—is that this House on behalf of the electorate represents the democratic process whereby we are voted in to make decisions. We must insist on that at the expense of judicial supremacy. Even though I am the first to say that it is for the courts to interpret legislation, it is not for them to make it. That is the fundamental point. I thoroughly endorse both the sentiments and the wording of the new clause.
Mr Lidington
I thank my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg),who I know takes a strong interest in these important constitutional issues—and he is right to do so. Our short debate has allowed him and other hon. Members to seek a means to entrench the Bill once it reaches the statute book, and to protect it from future attempts at repeal. At the same time, the new clause has been drafted in such a way as to permit my hon. Friend the opportunity to raise broader constitutional questions about the ultimate authority to take decisions and whether that should lie with Parliament or with the judiciary. My hon. Friend cited in particular the leading judgment of Lord Justice Laws, which has been quoted on many occasions during our proceedings on theBill.
I am afraid, however, that although I agree with much of the sentiment that underpins the new clause, I cannot support the new clause for reasons that I shall shortly provide. Let me first explain a little about the Government’s interpretation of the new clause and its effect. It would introduce a new category of Bill, which could not be passed under the procedure provided by section 2 of the Parliament Act 1911.
As all hon. Members will be aware, section 2 of the Parliament Act 1911 makes provision under which most public Bills can be enacted ultimately without the approval of the House of Lords. There are, however, two exceptions to the general rule. The first relates to money Bills, which have their own procedure under section 1 of the Parliament Act. The second exception is for what that Act terms
“a Bill containing any provision to extend the maximum duration of Parliament beyond five years”.
Under the new clause, there would be a third exception: namely, any Bill that sought to amend or repeal what would be provided for in sections 1 to 7 of the European Union Act 2011, which this Bill will become if Parliament agrees to its passing. In practice, this would mean that the legislation could not be either repealed or amended in respect of those sections without the express consent of the House of Lords.
I hope it goes without saying that I fully support the political intention of the new clause to help to ensure that the Act remains on the statute book for a long time to come. As my right hon. Friend the Foreign Secretary said on Second Reading, the Government believe that the Bill should become
“part of the accepted constitutional framework of this country”.—[Official Report, 7 December 2010; Vol. 520, c. 197.]
It is right to point out, however, that the Parliament Act 1911 has been amended only once, in 1949. Since then, Parliament has not considered it appropriate to single out any other pieces of legislation—for example, the Acts of Parliament passed to provide for Scottish, Welsh and Northern Irish devolution, the Constitutional Reform and Governance Act 2010 or, indeed, the European Communities Act 1972—for similar special status. Even enthusiastic supporters of the Bill would find it difficult to argue that this piece of legislation should be singled out in this particular way, which is denied to other items of legislation that might generally be accepted to have important constitutional significance.
Mr Cash
Even if my right hon. Friend were right in his general assertions about elements of the Bill, the implications of clause 18, as the European Scrutiny Committee report made clear, puts it into a very special category. Despite our attempts to amend that clause, which were sadly and tragically defeated, the fact remains that clause 18 makes a very significant change to this country’s constitutional arrangements. For that reason, the Bill should indeed be put into a different category.
Mr Lidington
I am grateful to my hon. Friend for acknowledging the importance of clause 18. We had a full day’s debate on that clause at the start of our Committee proceedings, but I rather think that you would warn me, Mr Hoyle, against recapitulating that debate this evening. It is hard to imagine why a future Parliament would choose to repeal this Act, thereby abolishing the referendum lock and the enhanced control and scrutiny that the Bill provides for Parliament and the British people. It would incur a high political cost for any Government who brought forward such a measure and, indeed, for individual Members of Parliament who were prepared to walk through the Lobbies in its support.
It is an important part of this Government’s commitment to rebuilding trust with the British people to make clear what the future arrangements should be. Although it is always possible that a future Government will decide to act differently, I find it hard to imagine that any such future Government would be able to defend taking away from the British people the right to have their say about further changes to the European treaties.
I have further concerns about the impact of the new clause on the long-standing relationship between this House and the House of Lords. It would alter the relationship by expanding the relative powers of the House of Lords. It has never been part of the Government’s intentions for this Bill that it should be used to alter that relationship.
Jacob Rees-Mogg
I am grateful to my right hon. Friend, not only for giving way but for taking the new clause so seriously, but I must say to him that the Bill does not really extend the powers of the House of Lords and is not a new category of Act. Both it and the existing protection under the 1911 Act refer exclusively to the voting rights of the British people, which is why I think that they are exactly the same.
Mr Lidington
I hear my hon. Friend’s argument, but I could quite easily construct another argument. We have enacted other pieces of legislation in recent decades which are of great constitutional significance, which touch on the franchise—for example, the decision by, I believe, the Heath Government to lower the voting age from 21 to 18—and which could have been deemed to fall into a comparable category and to deserve equivalent protection.
This evening my hon. Friend is making a second attempt to persuade Parliament of the case for his proposal. A short while ago, he tabled an amendment to the Fixed-term Parliaments Bill that was very similar to this new clause. Indeed, it may have been identically worded. At the time the Parliamentary Secretary, Cabinet Office, my hon. Friend the Member for Forest of Dean (Mr Harper), expressed a view to which the Government and I subscribe. The rules governing the relationship between this House and the other place, as laid down in section 2 of the 1911 Act, have been in place for some time, and we do not intend to start changing that relationship.
I suggest to my hon. Friend the Member for North East Somerset that the political problem and the constitutional challenge that he has identified in the House of Lords judgment, namely the evolution within the jurisprudence of the United Kingdom courts of the idea of a distinct category of constitutional statutes which have a special status and which, in particular, cannot be impliedly repealed, should perhaps be addressed in the context of a more general proposal for constitutional reform. As my hon. Friend knows, my right hon. Friend the Deputy Prime Minister is considering the issue of possible reforms of the House of Lords. The best course may be for my hon. Friend to make representations to the Deputy Prime Minister as he considers what is the right way in which to proceed.
During one of the debates on the Fixed-term Parliaments Bill, my hon. Friend said:
“Our constitution should be safeguarded and preserved; it is not something that should be treated lightly or in an airy-fairy fashion”.—[Official Report, 18 January 2011; Vol. 521, c. 708.]
I strongly agree with the sentiment that he expressed. That is why it is so important for the House to scrutinise thoroughly the issues raised by his proposal, and that is why I have considered it so carefully.
I welcome the scrutiny that the proposal has undergone, both this evening and during consideration of the Fixed-term Parliaments Bill. However, for the reasons I have given, I do not accept that the new clause is an appropriate way for us to achieve our shared intention. Following the debate on my hon. Friend’s similar amendment to the Fixed-term Parliaments Bill, he withdrew the amendment. I sincerely hope that, having heard my arguments this evening, he will be prepared to withdraw his new clause.
Jacob Rees-Mogg
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 3
Decisions subject to special referral procedure in TFEU
‘(1) A Minister of the Crown may not permit the United Kingdom’s participation in the final adoption of a decision to which this subsection applies unless subsection (3) or (4) is complied with in relation to the draft decision.
(2) The decisions to which subsection (1) applies are—
(a) a decision under the provision of Article 48 of TFEU that permits the adoption of legislative acts in the field of social security;
(b) a decision under the provision of Article 82(2) of TFEU that permits the adoption of directives establishing minimum rules in criminal procedure, unless the decision falls under section 9(4);
(c) a decision under the provision of Article 83(1) of TFEU that permits the adoption of directives establishing minimum rules concerning the definition of criminal offences and sanctions, unless the decision falls under section 9(4);
(d) a decision under the provision of Article 83(2) of TFEU that permits the adoption of directives establishing minimum rules concerning the definition of criminal offences and sanctions.
(3) This subsection is complied with if—
(a) a draft decision is before the Council,
(b) in each House of Parliament a Minister of the Crown moves a motion that the House does not believe the United Kingdom should request the referral of a specified draft decision to the European Council under the provision of Article 48 of TFEU, Article 82(3) of TFEU or Article 83(3) of TFEU, as the case may be, providing for such a request, and
(c) each House agrees to the motion without amendment.
(4) This subsection is complied with if—
(a) a draft decision is before the European Council,
(b) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to support the referral of a specified draft decision back to the Council, and
(c) each House agrees to the motion without amendment.’.—(Chris Heaton-Harris.)
Brought up, and read the First time.
Mr Deputy Speaker (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
New clause 4—Certain decisions under Article 312 of TFEU requiring approval by Act and by referendum—
‘(1) A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies unless—
(a) the draft decision is approved by Act of Parliament, and
(b) the referendum condition is met.
(2) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (1) as references to a draft decision.
(3) Subject to subsection (6), subsection (1) applies to a decision under Article 312(2) of TFEU to adopt a regulation laying down the first multiannual financial framework of the European Union for the period following 2013, where that multiannual financial framework would include—
(a) an initial annual ceiling on total EU payment appropriations that was higher than the ceiling on total EU payment appropriations for 2013 in the multiannual financial framework covering 2013, taking account of an adjustment of the 2013 ceiling for inflation,
(b) subsequent annual ceilings on total EU payment appropriations, some or all of which increased from the previous year, or could increase from the previous year without revision of the multiannual financial framework through the procedure laid down in Article 312(2) of TFEU, by more than an adjustment for inflation,
(c) an initial annual ceiling on total EU commitment appropriations that was not lower than the ceiling on total EU commitment appropriations for 2013 in the multiannual financial framework covering 2013, taking account of an adjustment of the 2013 ceiling for inflation, or
(d) subsequent annual ceilings on total EU commitment appropriations, some or all of which were at least as high as the previous year’s ceiling adjusted for inflation, or could be at least as high as the previous year’s ceiling adjusted for inflation without revision of the multiannual financial framework through the procedure laid down in Article 312(2) of TFEU.
(4) For the purposes of subsection (3), the only relevant adjustments for inflation are those used by the EU for the figures involved.
(5) Subject to subsection (6), subsection (1) also applies to a decision under Article 312(2) of TFEU to adopt a regulation revising the first multiannual financial framework of the European Union for the period following 2013, where that regulation would cause the multiannual financial framework to include provision identified in subsection (3) when the framework had not done so before.
(6) Inclusion of provision to enable EU payment or commitment appropriations to be reallocated between the annual ceilings of the same type of appropriation in a multiannual financial framework does not of itself cause a regulation laying down or revising a multiannual financial framework to fall under subsection (1).’.
New clause 5—Certain decisions under Article 311 of TFEU—
‘(1) A Minister of the Crown may not confirm the approval by the United Kingdom of a decision to which this subsection applies unless—
(a) the decision is approved by Act of Parliament, and
(b) the referendum condition or the exemption condition is met.
(2) Subsection (1) applies to a decision under the third paragraph of Article 311 of TFEU to adopt a decision laying down provisions relating to the system of own resources of the European Union, where the decision adopted contains provision for payment to the EU as own resources, without the need for a further decision under the third paragraph of Article 311 of TFEU, of some or all of the revenues from a tax or other levy on natural or non-State legal persons that is established or which may be established by EU law (including by that decision).
(3) The referendum condition is that set out in section 3(2).
(4) Subject to subsection (5), the exemption condition is that the Act providing for the approval of the decision states that—
(a) under the provisions relating to the system of own resources of the European Union in force at that time, revenues from the tax or other levy referred to in subsection (2), or from a tax or other levy that is very similar and which is established or may be established by EU law, are already paid in whole or part to the EU as own resources or may be paid in whole or part to the EU as own resources without a further decision under the third paragraph of Article 311 of TFEU, and
(b) the adopted decision to which the decision relates does not contain provision that is likely to require or allow a significant increase in the amount or proportion of revenue obtained in the United Kingdom in any one year from the tax or other levy referred to in subsection (2) that is or may be paid to the EU as own resources, compared to that required or allowed by the provisions relating to the system of own resources of the European Union in force at that time.
(5) Where a statement as per subsection 4(a) is made that revenues from a very similar tax or other levy to the tax or other levy referred to in subsection (2) are or may already be paid in whole or part to the EU as own resources, the statement for the purposes of subsection 4(b) may state that the adopted decision to which the decision relates does not contain provision that is likely to require or allow to be paid to the EU as own resources an amount or proportion of revenue obtained in the United Kingdom in any one year from the tax or other levy referred to in subsection (2) that is significantly greater than the amount or proportion of revenue obtained in the United Kingdom in any one year from the very similar tax or other levy required or allowed to be paid to the EU as own resources by the provisions relating to the system of own resources of the European Union in force at that time.’.
Amendment 1, page 4, line 8, clause 4, at end insert
‘except where any such provision substantially affects all or any of the political, economic, fiscal, social or constitutional relationship between the United Kingdom and other Member States of the European Union.’.
Amendment 6, page 4, line 43, clause 6, at end insert—
‘(2A) A Minister of the Crown may not confirm the approval by the United Kingdom of a decision under the provision of Article 218(8) of TFEU for the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms in accordance with Article 6(2) of TEU unless—
(a) the decision is approved by Act of Parliament, and
(b) the referendum condition is met.’.
Amendment 8, page 6, line 21, clause 7, after ‘Union’, insert
‘, unless the decision falls under section (Certain decisions under Article 311 of TFEU)’.
Amendment 7, page 6, line 39, at end add—
‘(da) a decision under Article 312(2) of TFEU to adopt a regulation laying down or revising the multiannual financial framework of the European Union, unless the decision falls under section (Certain decisions under Article 312 of TFEU requiring approval by Act and by referendum).’.
Amendment 4, page 8, line 22, clause 9, at end insert—
‘(4A) For decisions under a provision falling within either paragraph (b) or (c) of subsection (2) that are subject to qualified majority voting, otherwise supporting a decision includes, for the purposes of subsection (4), permitting the United Kingdom’s participation in the final adoption of a decision.’.
Government amendment 3.
Amendment 5, page 9, line 3, clause 10, leave out subsection (2).
Chris Heaton-Harris
I should begin by apologising to the House for being so keen to table a number of new clauses and amendments at this late stage. It is not as if there is anything better going on in my life. It is not that Arsenal are playing Barcelona tonight, and I could have been watching that. Actually, as a referee I do not like Arsenal that much, but I could have been refereeing the football game between the Press Lobby against the Crown Prosecution Service—and I have a family, and there is a dinner that I could have gone too.
However, I did want to point out to the Minister that there are some fairly big gaps in the Bill, which came to my notice rather later than they should have. New clause 3 concerns the emergency brake, especially in the context of criminal justice matters. New clause 4 concerns the post-2013 financial framework. New clause 5 concerns own resources decisions and EU taxes. I have also tabled a range of complementary amendments.
New clause 3 deserves some explanation. Certain European laws proposed under the treaty on the functioning of the European Union are subject to the emergency brake procedure. Such proposals are adopted by qualified majority voting in the Council, and relate to social security and procedural and substantive criminal law. When an EU law on social security is proposed under article 48 of the TFEU, a member state can declare that the proposal
“would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system”,
and, having done so, can request that the proposal be referred to the European Council. The proposal is then so referred, and the Council suspends its consideration of the measure.
When an EU law on procedural or substantive criminal law is proposed under article 82(2) or article 83 and a member state considers that the proposal
“would affect fundamental aspects of its criminal justice system”,
that member state may request that the proposal be referred to the European Council. The proposal is then so referred, and the Council suspends its consideration of the measure. A member state’s ability to stop the adoption of a proposal subject to qualified majority voting in that way is known as the emergency brake.
After the proposal has been referred to the European Council, the Council may refer the proposal back to the other Council, which then resumes consideration of the measure, taking decisions by qualified majority voting. However, there must be a consensus in the European Council for the proposal to be referred back. That means that any member state can block the proposal. Under United Kingdom law, the decision on whether to invoke the emergency brake lies solely with the Government. Parliament cannot insist that this happen, and the Bill, alas, will not change that. In contrast, the German Parliament can oblige the German Government to press the emergency brake on any of those matters. New clause 3 would cover all EU proposals subject to the emergency brake except for the proposals that would fall under clause 9(4) of the Bill. It would, however, require the final draft of the proposals to go before both Houses of Parliament, either of which could require that the emergency brake be pressed.
Back in January, in response to a letter that I had sent dealing with various aspects of the Bill, my hon. Friend the Minister for Europe wrote to me that there was nothing to prevent a member state from pressing the emergency brake repeatedly on a proposal. That means that, should Parliament remain dissatisfied with the proposal after it has been referred to the Council by the European Council following a use of the emergency brake, Parliament could insist that the brake be pressed again.
Subsection (4) of new clause 3 is intended to accommodate the possible scenario in which the European Council seeks to come to a consensus on a final draft of the proposal, which would be referred back to the Council for formal adoption straight away. It seems to make sense that the Government should be able to ask Parliament at that point whether the final proposal is acceptable, rather than the Government’s simply agreeing to refer it back to the Council and not insisting that the emergency brake be triggered.
I have been discussing new clause 4 with the Minister’s officials, and have been told that its provisions are probably covered in the Bill. A handful of proposals subject to the emergency brake would appear to be covered by clause 9(4). I would appreciate the Minister’s confirming that, at the end of a convoluted process—during which the British Government might know that a proposal under QMV is to be adopted so they do not vote for it or abstain, but vote against—we in this Parliament could still have our foot firmly on the emergency brake.
Steve Baker
I admire my hon. Friend’s tenacity, but I am only a simple engineer, so may I confirm that he has said that this House is unable to assert its sovereignty in relation to criminal justice?
Chris Heaton-Harris
I was not asserting that, although we have given away lots of justice and home affairs powers, and I do not think many Members or many of the British people fully appreciate how much we have potentially given away. This is an important point. Although the Bill has many problems, the referendum lock would ensure that we do not go down such a route in respect of the European public prosecutor and other matters to do with the criminal justice system. The measure I am talking about came in under the Lisbon treaty. No country has pressed the emergency brake yet. I would like to think that the Government would trust Parliament sufficiently for Parliament to have its foot on that brake, rather than for the Government alone to have their foot on it.
Kelvin Hopkins (Luton North) (Lab)
I find the hon. Gentleman’s arguments very persuasive. At least we, as well as Germany, could stand up and be counted. If it is good enough for the Germans, it should be good enough for us. I would like such a provision very much indeed, but is not the worry for our Government in particular that our Parliament is especially likely to exercise that power over Ministers going to the European Council? Is not their concern that we might actually exercise our right to put our foot on the brake?
Chris Heaton-Harris
Quite possibly, but that is the essence of democracy, and one of the reasons we were put here in the first place is to keep check if not on what our own Government are doing, at least on what institutions to which we are giving powers might be doing with them. I would like the Minister to reiterate the comments I have heard from his officials about the emergency brake and new clause 4 possibly not being needed.
Mr Geoffrey Cox (Torridge and West Devon) (Con)
Why has my hon. Friend chosen to put a veto in the hands of the other place? I can understand why the matter might be subject to a vote of this House, but why also to a vote in the other place?
Chris Heaton-Harris
Well, that sounded better to me when I was writing it down. It seemed perfectly logical for this to be a matter for both Houses, and the other place does scrutinise European matters, as we have discussed. It has a depth of expertise on European matters, although it might be completely wrong in its conclusions.
Jacob Rees-Mogg
The House of Lords has an absolute veto on statutory instruments and many other things. It is only legislation introduced in the House of Commons on which the Lords does not have a veto. It would therefore have been illogical to have excluded it.
Chris Heaton-Harris
I could not have put it better myself.
Moving swiftly on, new clause 4 addresses the post-2013 financial framework. We are about to enter into very important negotiations about how much money we give to the European institutions over the next financial framework—that for 2014 to 2020. We have had many assurances from the Government that they will seek a very tough settlement, and I thought it would be wise to encapsulate in a new clause this Parliament’s view of a tough settlement. I thought it might be a good idea to spell out the situation if we do not get a freeze on the amount of money we are spending per year in that financial framework at EU level—or indeed a cut, which I hope we might be angling for. I wanted to make it clear that if we failed miserably in our negotiations and had to accept—perhaps for reasons of diplomacy, as I am unsure whether we would have to accept this as we have a veto on these matters—a rise in the amount of money that could be spent in that financial framework, that would also become part of the Bill. In fact, I would like that to be put to a referendum so that people can vote on whether we should give a lot more money to institutions that we do not completely trust. That is the main purpose of new clause 4. I hope its being moved will give the Minister another chance to state on the record exactly what our position will be going into negotiations on the financial framework post-2013.
Steve Baker
(Wycombe) (Con): Does my hon. Friend not agree, however, that the fact of the situation in which we find ourselves is that the British people have no say about their EU budget contribution?
Chris Heaton-Harris
Well, they do have a say through the Government they elect, and the Government do negotiate these things in the multi-annual packages. As I said in a debate on a previous new clause, this is one way of making sure that if the Government decided it was practical for us to have a rise in the amount of money being spent in the European institutions, the people would have a say on how much it would be. I accept that own resources is covered in some ways in the Bill, but I thought I would phrase the new clause in such a way that it would give the Minister a chance to tell the House exactly what the British Government’s views are on matters of taxation coming in at the European level. My new clause would at least introduce the principle of referendums on own resources decisions bringing about substantial changes in EU taxation, and require future Governments to go through a more exacting process to agree to such changes, which would expend significant political capital if they were proposing something clearly out of line with what the British people want.
The new clauses address the crux of the debate, which is the scrutiny of European matters. We in this place do not do scrutiny half as well as we should. On Third Reading, I hope to speak about how we might improve scrutiny and what the Government should do.
Michael Connarty
I want to speak briefly in support of new clauses 3, 4 and 5. They get to the meat of the discussion we should have been having with the Government before they introduced this silly Bill. It is silly because it is never likely to be used, as there are so many ways that a Government Minister of any political complexion who wishes to continue with the European project can get measures through Parliament, such as by saying that they are insignificant or that it is not necessary to have an Act of Parliament. Therefore, I do not think that the Bill’s measures will be used a great deal. It is based on the premise that the Government want to put in place the measures they introduce, and presumably a Government of any complexion will know that they need a majority in the House in order to introduce any measure that they might decide is significant enough to be dealt with by a referendum or an Act of Parliament.
In reality, therefore, the Bill is a bit of a public relations exercise. But the new clauses are not. They would address the things that are wrong at the moment with the process of dealing with the emergency brake. It should be in place and it should be used properly in a way that gives a Government a chance to speak on behalf of their Parliament and their people in the Council in a fundamental way. New clauses 3 and 4 are very attractive, because would give teeth and meat—a bit of beef—to a Bill that lacks that completely. The Bill is a list of things which might be on the mind of the body politic and perhaps the anti-European press, but it does not have any substance. The new clauses have substance, as they lay out clearly how the brake should be used.
There is absolutely no doubt that new clause 5 is necessary. It deals with a tax and we should have had a similar clause, somewhere along the line, on the giving away of our social security rights. It is clear that people who come to this country to work see social security as an extra payment that does not come out of the pocket of their employer. When someone leaves their family back in Poland, where they still have their house, to come to this country to work, they get all the benefits required under our social security legislation—tax credits, child tax credits and so on—which they often send back home. They also often end up with a council house, because they then bring their family to this country and live in overcrowded conditions, and they leave their house back there being paid for by the British taxpayer. All those things might have been examined seriously if we had had a provision such as new clause 5 to deal with how social security would transfer.
Clearly the own resources arrangement is a tax and will be about creating a European tax as a substitute for VAT. I have been at conferences and seminars called by the Commission in other countries to press that point heavily, and thank goodness Treasury officials were there to argue hard against such an arrangement. We might say that it was one of the three red lines, because we said that tax was a red line that would not be crossed. However, the own resources debate will clearly be pressed again and again by the Commission, which will try to convince us that the proposed arrangement is not a breach of one of those red lines. New clause 5 would put up a nice barrier that we would have to cross purposefully and decisively if we wanted to move away from that red line. I commend the hon. Member for Daventry (Chris Heaton-Harris) for his tenacity, even at this late stage, in tabling well thought-out new clauses. I do not think that they come from a Eurosceptic, anti-European view; they would just be common sense and make good legislation.
Mr Cash
I wish to speak about my amendment 1, because it is important not only in principle, but in practice as we move forward on the negotiations taking place on two main issues. The first is European economic governance as a whole and the other is the, as yet, unformulated competitiveness package, which is coming up in the lift and being promoted vigorously in some other parts of the European Union.
The issue turns on the Bill’s proposal for the circumstances in which a treaty or an article 48(6) decision attracts a referendum. Under clause 4(4)(b), we would not have a referendum where
“the making of any provision that applies only to member States other than the United Kingdom”
came into play. It might sound obvious that we would not want to have a referendum if it did not affect us but, unfortunately, that rather innocuous wording raises a substantial and profound problem.
I remember Chancellor Kohl talking in the 1990s about the need to move forward with a two-tier Europe and he used the analogy of a convoy. The Minister for Europe is doubtless aware of what is coming up in the lift, but he should also be very worried about it because it is one of the greatest and most serious problems that we face. Many people, including distinguished commentators from the Financial Times and other newspapers, take an interest in these matters and get to the root of what is going on in Europe at the moment. Rather than merely having a convoy of ships travelling at different speeds with the slowest eventually being required to catch up—that was Chancellor Kohl’s analogy—these proposals on European economic governance are the equivalent of having an aircraft carrier of the eurozone and a rowing boat of the other member states that are left behind.
I do not believe for one minute that we should be in any way trapped or lured—to use the Prime Minister’s words—into engaging in the kind of European economic governance proposals that apply to the eurozone or to the competitiveness package on their own merits. Given the record of the European Union, neither has worked, is likely to work or will work. But there is a danger in our acquiescing in allowing the other member states to go ahead by participating in the given procedure, be it the ordinary legislative procedure, the special procedure, the special purposes vehicle or something that arises by virtue of a treaty. The key test is whether it
“substantially affects all or any of the political, economic, fiscal, social or constitutional relationship between the United Kingdom and other Member States of the European Union.”
That is how my amendment 1 puts it.
If something falls into that category, as I firmly believe these proposals do, it clearly affects our fundamental relationship with the European Union in such a way as to require a referendum. We went through the arguments about the constitutional treaty and all that followed from it, and we went through the subsequent arguments about the Lisbon treaty and insisted on a referendum on it, because these things affected this fundamental relationship. I am talking about the Conservative party, rather than the coalition, which is quite a different thing. The basis on which we presented our argument for a referendum was that the treaty was creating a fundamental difference in the relationship between the United Kingdom and the European Union.
I cannot think of anything more likely to demonstrate that fundamental difference than the implementation of these procedures, irrespective of the legal niceties of defining the transfer of powers or competences—I could argue that there is, but that is not the issue I am raising. I am saying that the key question is the substance of what is being done, not merely the choice of specific words employed—not in the Bill, but merely in the coalition agreement—about the transfer of powers or competences. I defy anybody to find the words in the Bill which say that wherever there is a transfer of power or competence there will be a referendum. That is not what the Bill says; it chooses a list of circumstances, specifically but not generically, where a referendum will be required. That is a fatal flaw in the Bill, but the real problem is the substance of what is being decided in a given treaty or article 48(6) arrangement. To my mind, the creation of a two-tier Europe, with the United Kingdom bound into it by acquiescence, puts us at risk because it creates the aircraft carrier of Europe and we are left in the rowing boat.
Ms Louise Bagshawe (Corby) (Con)
I admit that, for the first time, I find myself mystified by my hon. Friend’s arguments. Surely, the point about the Lisbon treaty was that it altered the relationship between the United Kingdom and the European Union in a most disadvantageous way for the United Kingdom. In the situation that he describes, where the Eurocrat nations are heading off at jet speed to unite themselves, I am quite content to be in the rowing boat, and I would prefer it if the rowing boat were being paddled very fast in the other direction. I cannot understand why we would need a referendum in those circumstances.
Mr Cash
The answer is that my hon. Friend completely misunderstands the nature of the European Union. That is the problem in a nutshell. I am afraid that she does not understand—I have to put this to her very bluntly—that the creation of a two-tier Europe on such disadvantageous terms would be very damaging to us. If, however, an association of nation states were to decide to go in one direction, while we retained our independence and did not acquiesce in treaty or other procedural arrangements that bound us into that association, I would be content, but that is not what is happening.
What is happening is that we are being actively required to become and are acquiescing in becoming part of a new treaty arrangement that affects us all—all member states as a whole—but they get their solidarity and concentration of power with the new arrangements that they enter into; we are left within the legal framework, subject to the European Court of Justice and all that goes with it, without being party in practice to the arrangements that they devise. That is why the social and employment legislation, the fiscal arrangements and all the rest of it will have a disadvantageous effect on us if they proceed with those arrangements.
My right hon. Friend the Minister may say that the proposed arrangements will be purely intergovernmental. We had a bit of a discussion about that in the debate on an earlier proposal, but that is a far too simplistic way to put it because, as I pointed out in an intervention on the right hon. Member for Rotherham (Mr MacShane), the proposals of the European conclusions of 4 February specifically state:
“Building on the new economic governance framework, Heads of State or government will take further steps”—
I now refer to an answer that I received from the Financial Secretary, who put a lot of emphasis on this—
“to achieve a new quality of economic policy coordination in the euro area to improve competitiveness”.
So they are creating a new kind of co-ordinated arrangement. It continues:
“without undermining the single market.”
I believe that my right hon. Friend the Prime Minister was very insistent on including those words, so that the proposals would not put us at a disadvantage. My argument is that, whether or not those words are included, they will do so.
The proposals then go on to say—this is all part of the manner in which the system is being devised, which I regard as extremely dangerous and implausible—
“Non-euro members will be invited to participate in the coordination.”
It then says in respect of the President of the European Commission:
“He will ensure that the Heads of State or government of the interested, non-euro area Member States are duly involved in the process.”
In other words, the appearance is given, contrary to what the right hon. Member for Rotherham said—that we would not be party to those arrangements—that in practice this is a perfect example of the two-tier system in operation. It requires some careful analysis, but it does us no favours whatsoever.
Mr Nigel Dodds (Belfast North) (DUP)
The hon. Gentleman is putting the searchlight on a very important and difficult issue. It is vital that this matter is highlighted. To continue the aircraft carrier analogy, if we are in the rowing boat, the trouble is that we are not able to row in a different direction; we are inevitably carried along in the wake even though we may be in a different place. That has happened in the past, and it is likely to happen in the future.
Mr Cash
Indeed. As my hon. Friend the Member for Daventry (Chris Heaton-Harris) pointed out, the aircraft carrier is owned by the Germans and the French. That is all part of the problem.
Let us come to the crunch: the reality is that the creation of a German or Franco-German dominated Europe lies at the heart of this. That has been one of the major concerns that has permeated the Government’s thinking for a very long time, right back to when I was advancing similar arguments about the Maastricht treaty. In fact, it was one of the reasons why I took such exception to the treaty, not only because it created European Government, but because, as I said in several books and pamphlets at the time, it was creating a German Europe as well. We need not engage in shock, horror anxiety about that, but it is part of a new dimension that will now have a significant and very damaging effect on the United Kingdom. For that reason, we should not acquiesce in these proposals; we should do everything to defeat them.
Ian Swales (Redcar) (LD)
I give due credence to the hon. Gentleman for all his knowledge on the issue, but can he think of an historical precedent where the citizens of one country have had referendum rights over a treaty to which their country is not a party?
Mr Cash
That is a very interesting question. Conversely, there have been three referendums—one in Denmark, one in France and another in Ireland—that would have an impact on us and people voted against, but the process of European integration carried on notwithstanding those results. In fact, to use an analogy, we got the rough end because, although the referendums went the way that some of us wanted, they made no difference and integration carried on anyway.
We need to understand perhaps that these proposals are, in fact, extremely dangerous. I suspect that my right hon. Friend the Minister will argue that, although we are being denied a referendum, the proposal will require approval by the United Kingdom Parliament in due course. The essence of my case is that it will have such a profound impact on the United Kingdom, by creating a two-tier Europe, that a referendum would be required because it involves a fundamental change in the relationship between the United Kingdom and the European Union.
I should like to say many other things about the proposal—perhaps I will have an opportunity to do so on Third Reading—but I have described its essence. This is a very dangerous move towards a German Europe, or a Franco-German Europe—it does not matter which way we look at it—and it is a fundamental strategic mistake. I see the Foreign Secretary, sitting on the Front Bench. He has bought this argument. I warned him before the general election that we should not enter this landscape. I am glad that he nods his head, because I was explicit about that at the time.
Finally, I recall the words of Thomas Mann who proposed what I still believe to be one of the great questions of our time, as yet unresolved, but probably resolved by these proposals of a two-tier Europe along the lines of Chancellor Kohl’s analogy of a convoy, and ask, “What will it be—a European Germany or a German Europe?”
Mr Lidington
We are confronted with a cornucopia of amendments and new clauses covering a number of important but disparate subjects. I shall try, in the time available to me, to do justice to them, but I apologise to you, Mr Deputy Speaker, and to the House in advance should I not have time adequately to deal with each new clause and amendment.
My hon. Friend the Member for Daventry (Chris Heaton-Harris) tabled new clause 3, which is grouped with amendment 4. As he said, the new clause deals with the “emergency brake” procedures in the EU treaties. It is important to note that we cannot equate the emergency brake procedure with a treaty change or with the exercise of a ratchet clause, because those relate, rather, to controls on the exercise or use of existing competences to adopt European secondary legislation such as directives or regulations in the areas concerned. His new clause would enhance parliamentary control over the use of some existing EU competences. Subsections (3) and (4) would add a requirement for a motion to be passed by both Houses before the UK could decide not to invoke the emergency brakes that can be applied to proposals for measures under all four treaty provisions specified in the new clause, and also before Britain could put an end to the emergency brake procedure by agreeing in the European Council to refer the issue back to the Council to continue with negotiations under the ordinary legislative procedure.
As my hon. Friend said, it is our view that, even were the European Council to refer a matter back to the Council to continue negotiations, member states would still be free to pull the emergency brake again if they saw fit. As consensus is required on emergency brakes, and if parliamentary approval were not granted, the result would be that the UK was effectively able to block EU decision making in those areas, although in respect of certain measures, as he will understand, other member states could have recourse to use of the enhanced co-operation procedures without the UK’s participation where that was permitted under the treaties.
Kelvin Hopkins
I followed the case made by the hon. Member for Daventry (Chris Heaton-Harris) fairly carefully, and I understood it to mean that the new clause would give parliamentary backing of or control over Ministers when they go to the Council. Would that not strengthen the position of Parliament relative to the EU and put a bit of stiffening in Ministers when they go to negotiate?
Mr Lidington
The hon. Gentleman has the right intentions, but the new clause would not achieve quite the purpose that he and my hon. Friend the Member for Daventry intend. It would have some unintended and unwanted consequences as well. Let me explain why I consider that to be the case.
As I said at the outset, any proposals under the four treaty articles covered by the new clause would not constitute a transfer of power or competence from the UK to the EU, because the EU’s ability to act in those ways is already provided for by the treaties. Those decisions are not what the Government consider to be ratchet clauses, so we do not believe that such measures should, as a matter of policy, be subject to the controls provided for within the measure.
Furthermore, proposals for EU secondary legislation under articles 82(2) and 83 fall within the scope of our opt-in to title V under protocol 21 to the Lisbon treaty. We have already undertaken to review the procedures for parliamentary scrutiny of the use of the opt-in to ensure that Parliament has an increased say. I spelled that out, in outline, in my written ministerial statement of 20 January.
For the future, we have made it clear in clause 9 that the use of the ratchet clauses in some of those articles should ensure that any British participation in such measures by virtue of our opt-in should be preceded by the approval of both Houses of Parliament, and that our agreement to the final measures proposed should be preceded by parliamentary approval by Act of Parliament. We believe that that represents a significant step forward in enhancing the controls of the House on those justice and home affairs ratchet clauses while maintaining the same proportionate and sustainable approach that we have sought to take with all other parts of the Bill.
Mr Lidington
If my hon. Friend will forgive me, I want to reply to my hon. Friend the Member for Daventry.
Another example of the lack of flexibility in new clause 4 relates to the variation in payments from year to year. The December letter left some scope for real variation in payments over the next financial perspective, provided that payments over the whole period were frozen in real terms. The new clause would prevent any payments variations, but such variations are a natural consequence of how the financial framework works. For example, a commitment of €100 in 2005 might lead to a payment of €20 in 2006 and €80 in 2007. That is because commitments made in one year do not translate into uniform payments over subsequent years.
We want to cut wasteful EU spending, not just to reduce the overall size of the EU budget, but to free up some resources to improve the value for money that we and other member states get from European Union spending, and to support activities such as boosting economic growth and competitiveness. We would like to see work done on improving the way in which the EU budget supports economic growth and competitiveness via the Europe 2020 strategy, subject to judicious selection of the most appropriate policy instruments. We want the EU budget to enhance security, via an active role for the EU as a global player. This could mean increases in spending under those headings, but we would insist on those being counterbalanced by reductions under other headings, all within our overall objective of restricting any increase in the EU budget to inflation.
Paradoxically, the new clause might force a referendum on the next financial framework exactly because we had successfully achieved our reform agenda within the constraints of a very tight limit on the size of the budget overall.
New clause 4 and the associated amendment 7 would hamper our objectives of driving down the overall EU budget and improving the value for money that it provides. I therefore urge my hon. Friends to withdraw those amendments.
New clause 5 is about taxes. The measures proposed in the new clause address matters that already fall within European Union competence.
Mr Lidington
We debated that issue at some length in Committee. My position and that of the Government remain that it is the sovereign right of member states to decide to agree treaties which affect them. What we are concerned about in the United Kingdom is defending the right of the British people to have a lock on anything that transfers powers away from this place to European Union institutions, and not to interfere with what other Governments decide independently that they wish to do.
Chris Heaton-Harris
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Does the hon. Member for Stone (Mr Cash) wish to move his amendment formally?
Mr Cash
I will not move the amendment, but I do not agree with what the Minister has just said.
The Deputy Speaker put forthwith the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Clause 10
Parliamentary control of certain decisions not requiring approval by Act
Amendment made: 3, page 9, line 2, at end insert—
‘(1A) A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies unless Parliamentary approval has been given in accordance with this section.
(1B) Subsection (1A) applies to a decision under Article 48(7) of TEU which in relation to a provision of TFEU applies the ordinary legislative procedure in place of a special legislative procedure not requiring the Council to act unanimously.’—(Mr Lidington.)
Third Reading
The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)
I beg to move, That the Bill be now read the Third time.
I begin by thanking the many hon. Members who have participated in the very extensive debates on the Bill, with five full days in Committee, comprising more than 30 hours of this House’s time. So many Members have spoken—more than 90 in total—that it would take most of the two hours available for Third Reading to pay tribute to them all. I am delighted that the Bill has stimulated such interest.
Invidious as it is to single out any Member—I apologise to those I do not mention—I want to pay tribute to my hon. Friend the Member for Stone (Mr Cash) and the European Scrutiny Committee. Whether or not we were surprised that he did not move his amendment just now, we were certainly not surprised that he did not agree with what my right hon. Friend the Minister for Europe has just said. I thank my hon. Friend and his Committee for their two very comprehensive reports on the Bill. The Government do not take the same view as the Committee on all the points they have raised, but the Committee has fulfilled its vital role commendably. The whole House has benefited from my hon. Friend’s knowledge and his long-held and principled approach to these matters.
On the Opposition Front Bench, the hon. Member for Wolverhampton North East (Emma Reynolds), a shadow Foreign Office Minister, impressed the whole House with her first speech from the Dispatch Box, which is no easy thing to do. She showed herself to be one of the Leader of the Opposition’s new generation with a bright future. As I understand it, his “new generation” is a sufficiently elastic term to encompass the hon. Member for Caerphilly (Mr David), the shadow Minister for Europe, as well—[Interruption.] Indeed, the squeezed middle—another elastic and not exactly defined term. Perhaps both terms are suited to him. Once again, he has shown the House his great eloquence.
My hon. Friend the Member for Harwich and North Essex (Mr Jenkin) spoke with great verve and passion. My hon. Friend the Member for Hertsmere (Mr Clappison), who is in his place, brought to the debate his usual rigour and deeply held belief in parliamentary accountability. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) has spoken with all the zeal for democracy that we associate with him. My hon. Friend the Member for Dover (Charlie Elphicke) has demonstrated great fluency and articulacy in the debates, including earlier this evening. I am grateful to my hon. Friend the Member for Esher and Walton (Mr Raab) for the legal focus he has brought to the debates.
I thank my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) for the intelligence and thoughtfulness he has brought to the debate. My hon. Friend the Member for Stroud (Neil Carmichael) gave us the benefit of his considered and always thoroughly reasoned opinions. My hon. Friend the Member for Spelthorne (Kwasi Kwarteng) showed the House his enormous skill in debate. My hon. Friend the Member for Wellingborough (Mr Bone) made the debates more enjoyable for everyone, not least with his unquenchable sense of mischief. My hon. Friend the Member for South Swindon (Mr Buckland) made very carefully thought-through contributions, and my hon. Friend the Member for Ipswich (Ben Gummer) gave the House the benefit of his great clarity of mind.
My hon. Friends the Members for Witham (Priti Patel) and for Grantham and Stamford (Nick Boles), my right hon. Friends the Members for Wokingham (Mr Redwood) and for Charnwood (Mr Dorrell) and my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) have all spoken well in these debates. I thank my hon. Friends the Members for Camborne and Redruth (George Eustice), for Gainsborough (Mr Leigh) and for New Forest East (Dr Lewis). I am particularly grateful to my hon. Friends the Members for Daventry (Chris Heaton-Harris), for Wycombe (Steve Baker), for Cleethorpes (Martin Vickers), for Bury North (Mr Nuttall) and for Crawley (Henry Smith), whose rigorous scrutiny has helped us materially to improve the Bill as it has gone through Committee.
From another party, my hon. Friends the Members for Cheltenham (Martin Horwood), for Westmorland and Lonsdale (Tim Farron) and for St Austell and Newquay (Stephen Gilbert) very ably represented their party and powerfully made the case for the Bill from a slightly different perspective from that of some of my colleagues.
On the Opposition side, I want to thank the hon. Member for Glasgow South West (Mr Davidson), without whose sharp wit no debate on Europe would be complete, although evidently we are having to do without it this evening, so perhaps the debate is incomplete. The hon. Member for Birmingham, Edgbaston (Ms Stuart), who is in her place, as always brought her great experience and independence of mind to bear. The hon. Member for Vauxhall (Kate Hoey) reminded us that she is a sincere tribune of democracy. Truly, no debate on these matters would be complete without the hon. Member for Luton North (Kelvin Hopkins), as I well remember from the previous Parliament. The hon. Member for Rhondda (Chris Bryant) left us in no doubt about his view of the Bill. The right hon. Member for Rotherham (Mr MacShane)—it is a pity he is not here—fulfilled his proper role admirably, which is to denounce the Bill in such fierce terms as to convince everyone else of its great merits. He has done us an enormous service by doing so regularly.
Lastly, I must thank my right hon. Friend the Minister for Europe who has led the debates in Committee with great authority and absolute command of the language and detail of the treaties and of the Bill. I and the rest of the Government are very grateful for the superb work he has done. I should also put on the record my gratitude for the outstanding work done by officials in the Foreign Office in putting together this legislation.
The Bill represents the most significant and radical overhaul of how the most important decisions in the European Union can be made by the United Kingdom—decisions on changes to the EU treaties—since the European Communities Act 1972. It is an overhaul that is as profoundly needed as it is overdue. It marks a real shift in power from Ministers to Parliament and from both Ministers and Parliament to voters themselves.
The last 13 years of Labour Government saw the old approach tested to destruction. Four major treaties were signed. One was blocked by referendums in other countries. A referendum was promised in this country but denied and a treaty was taken through Parliament with no basis in any party’s manifesto. After those 13 years, the EU’s reach and power has grown and grown, but its standing with the British people has fallen at the same time.
For any democrat, that must be a deeply unsatisfactory state of affairs. Whether one approves of everything in all these treaties, which is a respectable position but not mine, or believes, as I do, that the EU now has considerable powers that would far better be matters for national Parliaments and Governments, we cannot go on like this. The EU’s future developments must be put under proper democratic control. That is an absolute necessity from any point of view on the EU if disenchantment with it is not to grow yet worse.
Mr Cash
It will not be the first time that my right hon. Friend has found I am not taken in by flattery. The real question is the one to which I referred a few moments ago when he was in the Chamber, which relates to the landscape of the European Union, increased Europeanisation as it affects this country and the manner in which the predominance of other countries is clearly moving further and further upstream. Does he really believe that the Bill will make any substantial difference to that question, particularly if we go down the route of a two-tier Europe?
Mr Hague
The Bill does make a material difference. It does not address the whole question my hon. Friend raises, because there are many different dimensions to it, but it is an important measure. In any future negotiations about the EU, British Ministers will be in the European Council saying very clearly that, under a vast range of provisions set out in the Bill, proposals that may be put to them in the European Council would require a referendum in the UK. That does change the negotiating position in Europe and the freedom of manoeuvre of British Governments, and it means that Governments have to be very alert to that point—not just British Governments, but all the Governments of the European Union. I can tell my hon. Friend that when I explain that point to them, as I already do, it makes a considerable impact on them.
My view is that the European Union has great achievements to its name: the single market; the enlargement of its membership, which has done so much to strengthen the spread of freedom and democracy in Europe; and the effective use of European nations’ collective weight in the world, which remains of high importance to our values and interests, as we have seen on sanctions and on Iran and hope to see in response to events in north Africa.
There are great challenges for the nations of Europe, in growth and global competitiveness, where action in the European Union on widening further markets in services, energy and the digital economy could do much to help to lift our economic prospects, but all that will be ever more overshadowed if the EU’s treaties change yet again to enlarge its powers still further without popular consent. That is the point that the Bill addresses.
Mr Redwood
I am all in favour of that democratic consent, but there is about to be a very substantial strengthening of power over economic governance for euroland, and, although we will be opted out of the most severe penalty, many of us believe that the measure will have a very big impact over the years on this country. Why cannot we have a vote on that crucial new treaty?
Mr Hague
It is already very clear, from our discussions on that treaty, that it will not have the effect on the United Kingdom which my right hon. Friend fears. There is no provision for it to do so; indeed, it is very clear that it should not do so. If any change were to be made to the arrangements of the European Union which imposed significant new sanctions or obligations on the United Kingdom, then of course a referendum would arise under the provisions of the Bill. That again will have to be remembered when all such provisions and changes are discussed within the European Union in the future.
It is one of our core beliefs in this coalition Government that power should not be hoarded by Ministers and officials in Whitehall, but be shared more widely with Parliament and people. That is wholly at one with the development of modern society. People increasingly want and expect to make decisions for themselves, not to have them taken for them by the Government. This Government believe that that desire and expectation are shaping our society for the better, so we are opening up public services to more choice, giving professionals more responsibility and devolving power in the Localism Bill.
The Bill before us is driven by our belief in giving power to people. Indeed, the lack of referendums on transfers of areas of power from Britain to the EU has become glaringly illogical, given the many issues on which the previous Government did institute referendums. We have had referendums on devolution and, locally, on whether towns and cities, from London to Hartlepool, should have directly elected mayors. The logic of all those referendums is the same: they are decisions on whether to change who holds power and how that power may be used. No decision can be more eminently qualified than one that could move an area of policy from the responsibility of this House to the responsibility to the European Union.
Ms Gisela Stuart
I want to take the Foreign Secretary back to when he said that he wished to share power. Does he also wish to share power in the European Union with UK citizens who apply for high-level jobs in it? The latest statistics show that British applicants make up less than 5%, because they are not competent in a second language. The Germans and French take something like 20% of the jobs, so could we share that power also with our workers and upwards?
Mr Hague
Yes, very much indeed. In fact, there was quite a lot of criticism of the External Action Service from other countries, because so many British people have gone into its senior ranks recently, but the hon. Lady makes an important point, which my right hon. Friend the Minister for Europe and I have been addressing since the new Government took office—that far fewer British people have gone into the European institutions in recent years.
The previous Government ended the European fast stream programme for civil servants, and it has now been started again. We hold events in the Foreign Office for universities, to point out that there are careers in the European institutions, so that in future a bigger intake of people working in those institutions will come from the United Kingdom and understand the culture and issues here. This Government are addressing that point, whereas the Government whom she supported rather dismally failed. I am therefore very grateful to her for raising that issue.
This Bill rightly gives Parliament far more control over decisions that had previously been a matter for Ministers alone or that Parliament had only limited ability to scrutinise and deliberate on. By directing Ministers when a referendum must be held and by setting such conditions in law, the Bill also transfers power directly to the people. I am a passionate supporter of the rights and role of Parliament, but there are issues where it is right that power should be exercised directly by the people.
We can all recall manifesto promises that have been broken, and we all know that new circumstances can arise that are not covered by a manifesto. That was the very thin excuse that the Labour party came up with for not holding a referendum on the Lisbon treaty. Indeed, when voters must exercise their judgment on the whole of a manifesto, crucial questions of who should hold power can be lost in the broader argument. Although in most matters future Governments and Parliament can reverse the decisions of their predecessors, in the case of the European Union that can be very difficult indeed. The British people want the right to decide whether the European Union should be given new powers over areas of policy. They deserve that right, and our democracy will be healthier and the European Union more legitimate if they get it. That is the democratic case for this Bill.
Indeed, the case for the Bill is so strong that the House did not divide on Second Reading, and the Opposition, in their amendment to that Second Reading, accepted the soundness of the principle of referendums on significant constitutional changes. It is good that there is consensus on the extension of our democracy. Unfortunately, the Opposition Front-Bench team also took the position of willing the end but not the means, by proposing a rather nebulous committee to decide whether any treaty change was significant. According to that position, it would be debatable not only whether the preservation of our national veto or the retention of national vetoes over foreign policy were significant enough for a referendum, but whether joining the euro was significant enough for a referendum. That of course became a rather risible argument.
The fact that the Bill sets down in detail the criteria for when a referendum should be held was also objected to, but we make no apology for its detail. It ensures that the referendum lock that the Bill gives the voters is real. The complexity of the European treaties themselves makes any other approach ineffective. The alternative—some kind of broad test of whether there should be a referendum—would create legal uncertainty and leave far too much to ministerial discretion. Our purpose in drafting the Bill was to reduce ministerial discretion to the barest minimum. The answer to the distrust from which the European Union now suffers in this country is not to leave power in the hands of the Government, but to give it to the people.
A third objection was that the Bill will make it harder to negotiate in the EU, or that it sends the wrong signals. I argue, as I just have, that it will make it easier to negotiate in the EU. It is usually best to be wary of vague arguments invoking signals, and that is certainly true in this case. The signal that the Bill sends is that, in future, Britain’s conduct of EU business will be placed on a surer democratic foundation, and that is a good one. The Bill makes it no harder to negotiate, but it does mean that on all kinds of treaty changes the Government must be able to convince Parliament of the merits of their case, and, in the case of treaty changes that transfer power, convince the British people themselves.
That brings me to the fourth objection that I have heard to the Bill—that the referendum lock will make many kinds of desirable changes impossible because the British people will vote them down. That is surely the weakest argument of all—that the British people cannot and should not be trusted, and that arguments for increasing the EU’s powers are so unconvincing that the British people can never be persuaded of them. Although I believe that we have come to the point where the problem is not that the EU has too little say over too few areas of policy but quite the reverse, I say to those who have such concerns, “Have the courage of your convictions.” If a future Government thought it right to abolish national vetoes over foreign policy, for example, let them convince the voters of the merits of doing so. If that cannot be done, that is democracy at work.
The Bill sets out the process for handling any future treaty changes. The coalition Government have made a firm commitment that we will not agree to any transfer of powers from Westminster to Brussels for the duration of this Parliament, but, as experience has shown, voters should not simply have to rely on politicians’ promises on such matters. If Parliament approves the Bill, any future treaty change that transfers powers from Britain to the EU will be agreed to only with the consent of the British people.
Many other matters have been gone over in detail, including important debates on the sovereignty clause, so I will not go through everything again. Some of my hon. Friends were concerned that references to the common law in the explanatory notes implied that the Government were forming a judgment on the origins of parliamentary sovereignty. That is not the case. For the avoidance of doubt, I reiterate that the purpose of clause 18 is to make clear and to put beyond speculation the basis on which directly effective and applicable EU law takes effect in the domestic legal order of the United Kingdom, and to negate the risk that EU law could be held to have an autonomous status independent of the will of Parliament through its Acts.
A number of Government amendments have been made to the Bill in Committee and on Report to ensure that it comprehensively fulfils its overall original intent and that the law on parliamentary ratification of treaties is wholly consistent and coherent. Hon. Members’ detailed consideration of the Bill exposed some areas where improvements could be made, and we are grateful to them for that work. First, the amendments make it absolutely clear that a referendum would be required in all cases before the UK could join the European Public Prosecutor’s Office or extend its powers, whether the decision was taken before or after that office had been set up by other member states or before or after the powers had been extended.
Secondly, the amendments ensure that any proposed treaty change that sought to give up any national veto in respect of the common foreign and security policy provisions in the treaty on the European Union, whether under the ordinary revision procedure, under the simplified revision procedure or through the use of an existing ratchet clause, would require the consent of the British people in a referendum. Thirdly, they ensure, with the passing of the relevant amendment a few moments ago, that Parliament will have to vote in favour of any move from the special legislative procedure to the ordinary legislative procedure in relation to eight articles of the treaty that are already subject to qualified majority voting.
The first Government amendment tabled on the second day in Committee amends clause 5 to ensure that the proposed eurozone treaty change is subject to the full rigours of this Bill for its ratification. That treaty change is due to be agreed later this month. Because the Bill is unlikely to be law by the end of May, we have amended it so that the clock starts ticking for the two-month period for the Government statement upon Royal Assent to the Bill rather than on the day when the treaty change is signed.
Mark Reckless (Rochester and Strood) (Con)
Will the Foreign Secretary use the opportunity of the eurozone’s needing our agreement to its permanent stability pact to require, in return, some repatriation of powers to this country, particularly in limiting the application of the working time directive, which is part of the coalition agreement?
Mr Hague
The eurozone treaty change is in the interests of the United Kingdom; let us be clear about that. Therefore, no one should think that it is in our interests to block that treaty change as it is currently proposed. Although we are not members of the euro—my position on the euro is very long-held and well known; I hope that we will never be members—its stability is very important for our own economic situation and economic future. It is therefore unlikely to be in our national interest, or to be effective, to try to block the treaty change to put forward the change that my hon. Friend proposes, particularly as other nations could, if necessary, make such changes outside the European treaties to get round such a block. However, he is right to raise concerns about the working time directive—an issue to which we will have to return.
This Bill deals with the most important EU decisions of all—those on treaty change. However, we believe that there is room for further improvement of parliamentary scrutiny and control over EU decisions, and that is particularly true of justice and home affairs opt-in decisions. It had become clear to us, and to many others in this House—my hon. Friend the Member for Hertsmere, in particular, has raised this—that the established system was inadequate. Therefore, two months ago, my hon. Friend the Minister for Europe, with the support of the Home Secretary and the Justice Secretary, announced a package of measures to strengthen parliamentary control so that there will have to be a vote in both Houses before the Government can decide by 2014 whether to opt in en masse to the existing EU criminal justice and policing measures adopted under the former third pillar. There is now also a minimum requirement for a written statement to Parliament on all opt-in decisions on new EU measures in justice and home affairs. In the case of strong parliamentary interest in a proposed decision to opt in, under the Bill there will be a debate and vote in both Houses on the Government’s recommended approach.[Official Report, 18 March 2011, Vol. 525, c. 9MC.]
There are a number of practical issues to resolve, so the Government are committed to consulting the business managers, the European Scrutiny Committee in the Commons, the Lords European Union Committee and the Justice and Home Affairs Committees on how these arrangements will work in practice, including the criteria for when a debate should be held in Government time and how we deal with periods of recess. Discussions on these issues are continuing, and we will report on their conclusions in due course. We are also committed to enhancing parliamentary scrutiny of other EU issues beyond the area of justice and home affairs, and the Minister for Europe has already been in contact with my hon. Friend the Member for Stone and the Chairman of the Lords EU Committee to take this work forward.
This Bill is not a panacea for all the problems of the European Union, but it does deal with the biggest challenge that it poses to our democracy: that its development should be linked to popular consent. The Bill does not just provide a referendum lock on any future treaty change that transfers powers: it provides a framework for greater parliamentary control over many important decisions, including those which need to be taken shortly to help deal with the eurozone crisis. It lays down that the transfer of power or competence cannot be agreed by a British Government without first obtaining the consent of the British people. It is a major change that strengthens our democracy by giving new powers to Parliament and voters. As such, it can and should be welcomed by everyone, whatever their view of the European Union, and I therefore hope that this House will give it its Third Reading tonight.
Mr Douglas Alexander (Paisley and Renfrewshire South) (Lab)
As is customary, I join the Foreign Secretary in paying generous tribute to previous speakers in today’s debate and in the debates on the Bill in Committee of the Whole House. Throughout these debates, there have been sustained contributions from a whole range of Members, and I will accept the challenge of trying to identify just a small number of them given the very many who have spoken. The hon. Member for Stone (Mr Cash) and my hon. Friend the Member for Birmingham, Edgbaston (Ms Stuart) have demonstrated their depth of knowledge on these complex but important issues. My right hon. Friend the Member for Rotherham (Mr MacShane) and the hon. Member for Harwich and North Essex (Mr Jenkin), who is not in his place this evening, have shown that rhetorical flourishes are not the domain of any one party but can be brought to opposing sides of this debate.
I also echo the Foreign Secretary in paying generous tribute to both Front-Bench teams, both of whom have been well briefed for these debates, as the immense red folder opposite powerfully attests. Alas, for the time being it is the only thing on that side of the Chamber that is red, with the possible exception of the Deputy Leader of the House’s socks, but I hope that that will change in time.
On the Third Reading of Bills, it is customary to thank the departmental officials who have toiled in support of their ministerial masters. Some in the Foreign Office deal with great affairs of state, while some see service in troubled lands. A chosen few are dispatched to represent our country to our firm allies in the great capitals of the world. The seven officials who have been obliged to work full-time on this particular piece of legislation therefore deserve our heartfelt sympathy and support.
Not everything in the Bill is bad, although nothing in it is particularly good. It has been described variously as a piece of “legislative PR”, a “show Bill”, a “missed opportunity”, as having clauses that are “entirely bogus”, and of involving “contemplating our navels”. Those remarks, of course, all came from Conservative Members, apparently in support of their Government’s proposals. The measures in part 2 to ensure that Britain is fully represented in the European Parliament are of course necessary, as are some of the changes to the way in which this House scrutinises European decisions, such as those in clauses 9 and 10. There is growing consensus in almost all member states of the European Union that national Parliaments need to play a bigger role in scrutinising its decisions.
During the Foreign Secretary’s first period of trying to appease Conservative Eurosceptics, he tried to move the euro debate off referendums and into the mainstream of a general election campaign. As I am sure he will recollect, this Bill comes 3,572 days after he told us that there were just 12 days left to save the pound. He does not yet seem to have learned his lesson. The Conservative party has called for a referendum on every treaty since it was last in office. Its last manifesto pledged to repatriate the European competences contained in those treaties back to the United Kingdom. Now Ministers appear content with the situation as it stands and offer this 18-clause Bill instead.
The principle of having a codified set of rules on when a referendum should take place on major issues, as is attempted in schedule 1, is reasonable enough, even if it seems somewhat extraneous. We will see how far such a power is applied in practice. For all the talk of legislative and referendum locks, which we have heard again from the Foreign Secretary this evening, the Bill cannot get away from the simple fact that each successive Parliament in the United Kingdom is sovereign. If a new treaty is signed or a new distribution of powers is decided on, Ministers will have to bring a Bill before Parliament, just as before. At that point, it would be straightforward for them to amend part 1 of this Bill and remove any of the requirements. They could also legislate for a referendum, or choose a new constitutional innovation that we cannot foresee. It will be for the Parliament of the day to make that decision. Rather than a legislative lock, the Bill actually seems to be the constitutional application of the latest theory much-loved by the Prime Minister: the nudge theory. I suppose that for Government Members, it is worth a little more than the cast-iron guarantee that the Prime Minister offered before the election.
Mr Redwood
On reflection, does the right hon. Gentleman think that it would have been better if the British public had had a vote on Nice, Amsterdam or Lisbon, because they might have felt a bit happier about the European Union if they had been properly consulted?
Mr Alexander
I find myself in sympathy with the Conservative position at the times of those treaties. The Conservatives were not convinced by the case for a referendum, and neither was I. It rather reflects the changing disposition of those on the Conservative Front Bench that, as I recollect, the Foreign Secretary was a fierce advocate of the avoidance of a referendum on the Maastricht treaty. At least on that, we are at one.
The real guard is the precedent established by political consensus that, for example, no party will join the euro without a referendum. No party pledged to ratify the proposed European constitution without a referendum. There was no consensus on Lisbon. Labour and Liberal Democrat Members did not believe that a referendum was needed, but Conservative Members did, and the Conservative leader did until he suddenly realised that he might be in government in just over a year’s time and did not fancy spending the first two years as Prime Minister obsessing over European renegotiations.
Charlie Elphicke
I hate to intrude on the right hon. Gentleman’s reworking of history, but to describe the Lisbon treaty as nothing to do with the European constitution is a travesty of the truth and of what actually happened. Does he accept that he should regret not following through with a referendum on that matter?
Mr Alexander
I do not wish to intrude on private grief, but I sense that that question would be better directed towards his new-found colleagues in the coalition, who clearly do not share his view. If he was to achieve consensus on his side of the House, he might have a better chance of achieving it across the whole House.
The muddle in that part of the Bill is as nothing compared with clause 18—the so-called supremacy clause. That was meant to be the red meat, but the more erudite Government Members simply are not biting. The hon. Member for Stone called it a “mouse of a Bill” when referring to this point. Those Members know that this is Britain’s first foray into what can safely be described as decorative legislation. It demeans this House to assert that it is sovereign when the fact is not seriously questioned. What we have seen in the middle east and north Africa in recent weeks should be a salutary reminder to us all that Parliaments and states derive their sovereignty from the people they serve. This Parliament will be no more or less sovereign because of the superfluous clause 18.
The question that we are all left asking is, “What is the rush?” The Government say that they have no intention of passing any powers to Europe for the next four years, so part 1 of the Bill will not be used, and clause 18 has already been shown to be superfluous. However, the Bill has been brought before the House for Third Reading before the Localism Bill, the Health and Social Care Bill, the Budget Responsibility and National Audit Bill and the Welfare Reform Bill—before any of the legislation that is supposed to define the very purpose of the coalition Government.
If the Bill is not just a legislative attempt to distract the Conservative right, I am afraid I can think of only one possible explanation. The week before last, the Deputy Prime Minister was reportedly shocked to discover that he was briefly in charge of the Government. The only real purpose for the Bill that I can adduce is that it is designed to guard against an eventuality such as this: the Prime Minister abroad on a trade mission, the Foreign Secretary about to head to Washington for important discussions and the Chancellor in Klosters, with the Deputy Prime Minister seeing an awful Liberal Democrat election result and deciding to make a dash for the history books by joining the euro before any of them manage to get back to the country. I tell Conservative Members who are slightly concerned by that scenario that in reality they need not worry; the mere fact of the Deputy Prime Minister’s support is probably a bigger barrier to Britain joining the euro than any referendum lock contemplated in the House.
We are content for the Bill to proceed to the House of Lords for further scrutiny, particularly of clauses 3 to 6. However, what it reveals about the Government is probably of more import than its true legislative effect. Dramatic, epoch-making events are taking place in the middle east as we gather here this evening. In Libya, Foreign and Commonwealth Office Ministers have not exactly covered themselves in glory, and the root of the problem appears to be their failure to co-ordinate either within Government or among our allies. May I respectfully suggest that the Bill is distracting Ministers from what should be their overriding focus at this time?
In February, the Foreign Secretary said that the cost of simply drawing up the Bill had already run to £200,000. We are left wondering not only how much the final bill will be but whether it is really the best use of the Foreign Office’s resources when it is having to make significant efficiencies. Of course, the bill for this Bill has not yet ended, because the Government have ignored amendments tabled by the Opposition and are leaving judicial review, rather than Parliament, to determine in the final instance whether there should be referendums. We do not know how often judicial reviews will be called or a decision will be reversed, but we do know that what has been called the William Cash memorial Bill could equally be called a fiscal stimulus for any legal practice specialising in judicial reviews.
The Conservatives’ monomania about Europe in opposition was an eccentricity, and the further they sank in the polls, the grander their rhetoric became. I confess, for that reason alone, to occasionally having cheered them on. However, they are in government now and the time has come to put away the party preoccupations that kept them going in the dark days of general election defeats. Now their job is to run the country and develop a foreign policy worthy of the name. Now is not the time for legislation designed to appease their own Back Benchers.
I have enjoyed both versions of the Foreign Secretary that have been seen in the House in the past decade—the baseball-capped, 14-pint-a-night young Conservative with extraordinary rhetorical skills, and the rather more world-weary, scholarly voice of experience in a Cabinet that all too often lacks it. There is a lot for Opposition Members to admire in both those characters, but surely to be a strong Foreign Secretary he needs to decide whether the Bill really fits with the seriousness needed from a British Foreign Secretary at a time of global economic and political turmoil. His 2001 persona would surely have loved the Bill, but I and many others had hoped that he would take that fact as a warning rather than an endorsement.
The Foreign Secretary has my support in putting pressure on the Gaddafi regime in Libya in the coming days, and the Minister for Europe has my support when he speaks out against human rights abuses in Belarus, as he did at the weekend. In seeking the right reforms in Brussels, they have not merely my support but my sympathy. I just wish that they would get on with those vital tasks instead of wasting so much of the people’s time with a Bill that satisfies few and achieves so little.
Mr Cash
I am fascinated by the line that the Opposition are taking. I am not impressed, if I may say so, by the line being taken by the coalition Government. It is difficult to resist the idea that a referendum is necessary in certain circumstances, so I rather anticipate that there will not a Division this evening, since the Bill is associated with what is really no more than the unlikely event of a referendum being called in respect of any of the provisions contained in it. The circumstances and the facts that we have had the opportunity to examine in the course of proceedings on the Bill, and indeed the trend, as I said in my earlier speech, of the UK being drawn in to the legal framework of a two-tier Europe but actually being neutered at the same time, increase the necessity of a proper referendum—an in-or-out referendum—so that the British people can decide whether they want to be Europeanised or absorbed, like ectoplasm, into the strange new world being created, over which we have increasingly little influence, let alone control.
This is, fundamentally, about a democratic deficit. I do not believe that the Bill will make any substantial difference to the landscape to which I referred in my previous remarks to the Foreign Secretary. A strategic mistake is being made in respect of Europe. Europe is failing. There is incredibly high unemployment in other member states: Spain’s youth unemployment, for example, is 43%. Very serious damage is being done by burdens on business—50% of all our economic regulation comes from the EU—and there is a failure to provide oxygen for the small business community in this country. The Bill does not, in my opinion, make any difference to those matters.
We have faced for some time now an economic crisis in Europe, but none of the measures—including the 2020 strategy, which will be no more successful than the Lisbon agenda, which had to be abandoned—will make any substantial difference to the mistakes and distortions associated with the European Union as it now is which continue to affect the United Kingdom. We need to renegotiate the treaties, and the Bill will not change that fact.
At the beginning of our debates on the Bill, the European Scrutiny Committee proposed to have a proper investigation into it. I am sorry that the Foreign Secretary did not feel that he could attend, but I am glad that the Minister for Europe came to see us, albeit somewhat late in the day. The Committee gave careful consideration to the Bill, but it is not evident that the Government paid very much attention to what has been described in many quarters as one of the best Scrutiny Committee reports produced in recent years. I am afraid that they have substantially ducked the issue.
I shall address a number of the points as they cropped up. Much play was made of the idea that the Bill would reaffirm the sovereignty of the United Kingdom Parliament, but when I tabled a motion to that effect the entire Conservative party, with some honourable exceptions, voted against it, which struck me as somewhat bizarre and extremely dangerous.
The European Scrutiny Committee report, which took evidence from many of this country’s pre-eminent constitutional experts, came to certain very clear conclusions. First, we noted:
“Clause 18 did not address the competing primacies of EU and national law”,
which is a matter of grave concern, and that on the evidence we received, clause 18 was “not needed”. We also concluded, on the evidence that we received, that
“If Parliament wills it may legislate to override the European Communities Act 1972 or the EU Treaties by repealing them, amending them or any provisions in them, or by clearly and expressly legislating inconsistently with them in respect of EU legislation or generally.”
That is a very important statement from the European Scrutiny Committee, because for many years it was asserted that, owing to the nature of the European Communities Act and the treaties on which it is based, with their amendments and their additions, it would not be possible for Parliament to legislate “notwithstanding the European Communities Act”. There was a movement towards the assumption—it was a dangerous habit of thinking and attitude of mind—that somehow we were locked into a situation that would never allow the United Kingdom to reassert its sovereignty in respect of European legislation.
For reasons that I have given, including the burdens on businesses, which are costing about 4% of gross domestic product, and the fact that since 1999 as much as £128 billion—it might be more now—has been lost to the British economy through over-regulation, we have to deal with these questions. That is the flipside of the idea of having a referendum on any further transfer of competences or powers. We have to deal with the existing European Union, not any future EU or any future extension of powers or competences. That is something for the future; we have to deal with the EU as it is now, and it is doing great damage, in many respects, to the UK’s national interests.
Mr Redwood
I am grateful to my hon. Friend, who as always is doing a great job on this issue. Will he agree that the legislation would be much more convincing if the very huge transfers of power now taking place—the power to regulate all our financial and banking services, the power in criminal justice and, soon, economic governance powers—were to be the subject of a referendum as a result of the Bill?
Mr Cash
Indeed, it would. For example, the fact that the City of London and its jurisdiction has legally been transferred to the EU is an indictment of the trends in the wrong direction. The landscape is changing in the wrong direction. With respect to the Foreign Secretary, the Prime Minister and other Ministers, I say that these matters need to be very carefully reviewed. All is not lost; the Bill is now going off to the House of Lords, and as I said earlier this evening, I hope that over the next few months serious consideration will be given to the impact of the European proposals on the competitiveness package, and the encroachments of European economic governance. I hope that these matters will be tackled. We need to ensure that we not only deal with future referendums, which we have been told will not happen until the next Parliament anyway—that is some years away—but tackle the crisis and the danger that we should be addressing now.
I trust that the House will not mind me mentioning that today I published a new note—perhaps I might even call it a pamphlet—entitled “Saving the British economy for the British people”. It sets out the history of the stabilisation mechanism and how it has drawn us into a dangerous situation regarding bail-outs. However, I will not go down that route now, because I want to return to what the European Scrutiny Committee said about the Bill. We concluded that
“if the legislative supremacy of Parliament is under threat, it is from judicial”
supremacy. That is the problem. It is a British constitutional problem, not only one of the assertions of the European Court of Justice; it is an internal domestic constitutional question, as Professor Tomkins made clear in his superb evidence. We said that:
“we attach weight to the warnings expressed by Professor Tomkins if the Government maintains clause 18 in the EU Bill.”
He spoke of the Bill overall as going
“out of its way to invite litigation”.
That is precisely the direction in which we do not want things to go. We need to be certain that the sovereignty of Parliament is a matter for Parliament and the people, not the judiciary or the Supreme Court, particularly in the light of the trend shown in assertions by the likes of Lord Steyn, Lady Hale and Lord Hope of Craighead, all of which we looked at in detail in the evidence that we received and the judgments reached when we concluded our review of that evidence.
Furthermore, we concluded:
“Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it has been included in the Bill is, in our view, exaggerated.”
We were also concerned about the manner in which the explanatory notes had been devised. We debated the matter at length, concluding:
“The Explanatory Notes present as fact what the evidence we have received tells us is disputed, viewed from any perspective.”
In other words, we were deeply dissatisfied with the way in which the explanatory notes dwelt on the idea of the common law principle. Indeed, I moved an amendment to clause 18 in an attempt to remove it from the framework of judicial interpretation, but that amendment too was defeated by the Government. In fact, I would say—I say this with respect to the Foreign Secretary and my right hon. Friend the Minister for Europe—that despite the soft words that the Foreign Secretary offered at the beginning of this debate, he knows well enough that we will not be put off or seduced by any flattery; we are interested in the arguments and the facts.
The European Scrutiny Committee analysed this Bill and found it wanting in many different ways. The other thing to say about clause 18 is this:
“The real point is whether a government can, in law, make it difficult for a future Parliament to amend or repeal the legislation it has passed”—
in a word, the point that the shadow Foreign Secretary made just now. We concluded firmly that
“in our view it cannot. Our conclusion therefore is straightforward—that an Act of Parliament applies until it is repealed.”
Sovereignty is not an arcane, theoretical or abstract question; it is, as I said in opening the inquiry, about the vast array of activities and functions that have been conferred on the authority of the European Union by the Lisbon treaty—a treaty that was passed by the previous Government but has since been adopted by our Government, despite the fact that we opposed its passage through the House tooth and nail when in opposition—and how they affect the daily lives of the people and businesses of this country in such a wide variety of ways, making it essential that we reassert the right of Parliament to override those provisions if they are deemed not to be in our national interest.
There is no presumption that merely because of the European Communities Act 1972 we have to accept as a matter of compulsion whatever is served up to us by the European Union. If it is not in our national interest, we must repudiate it. I see the Minister for Europe shaking his head. He knows that this is an important question, but he disagrees with me on it. I do not hold that against him; I simply say that he is wrong. There are those who will continue to argue that there is no way in which we can override European legislation, but no way will those of us who take the view that we do change our minds. We put the national interest first, and if what is being done under European Union proposals is not in the national interest, we will have to override it.
There are many aspects of the Bill, including the whole problem of the creation of a two-tier Europe and the extent to which a referendum is being denied to us under clause 4, that will cause grave difficulties for us over the next few months as we deal with the question of the eurozone and the countries that are not part of it. I regard this as a matter on which we will be judged as time goes on. On the exceptions, including clause 4, that preclude a referendum on matters that will dramatically affect the United Kingdom—such as a two-tier Europe or an accession treaty—the Committee concluded:
“the exceptions…have been drafted to allow the Government to support certain EU policies, such as strengthening of the eurozone, including through harmonisation of economic, fiscal and social measures if necessary…or enlargement, without triggering the referendum lock.”
The reality is that we will need a referendum if the creation of a two-tier Europe affects the United Kingdom in the way that we anticipate. If we are so affected, and we are put at a grave disadvantage, the responsibility will lie with the Government for refusing to allow a referendum. We are not only moving towards a situation in which the creation of a new kind of Europe is in prospect; we are on the brink of it. That landscape will not be an attractive one unless we move down the route of an association of nation states. The Foreign Secretary knows perfectly well that the arrangements in the Bill do not deal with the present. They deal only with the future, but we are confronted as I speak with the present danger of a European system that does not serve our national interest. We must meet that challenge, and meet it now.
Mr Clappison
I congratulate my right hon. Friend the Foreign Secretary on his speech this evening, and on his robust reaffirmation of parliamentary sovereignty and national democracy, which was very welcome to those of us on this side of the House, at least. I also thank him for the interest that he has taken in parliamentary scrutiny of opt-in decisions in the important areas of freedom, security and justice, and the attempt by the European Union to seize for itself the power to fashion our criminal law in this country.
I congratulate my right hon. Friend the Minister for Europe on the way in which he has taken the trouble to respond to all these debates. He has done so patiently and thoroughly, and shown great expertise. He has had a considerable amount of research behind him, and I think that the whole House is grateful to him for the exemplary way in which he has taken the Bill through the Committee of the whole House.
I also congratulate the hon. Members for Wolverhampton North East (Emma Reynolds) and for Caerphilly (Mr David) on their contributions to these debates, which have been very good humoured, and very effective in their own way. I congratulate, too, the shadow Foreign Secretary, the right hon. Member for Paisley and Renfrewshire South (Mr Alexander), on his speech this evening and for the foresight that he apparently possesses. He seems to have an ability to see into the future. Little did we know when we began our Second Reading debate on 7 December—or before that, when we promised these measures in our manifesto—that the right hon. Gentleman would have foreseen the problems in the middle east before anyone else did. He also deserves to win some sort of prize for stringing together unrelated issues in order to exploit them for maximum political advantage. That bodes well for his career in opposition, if not for the credibility of his policies or particularly for the credibility of his party’s position on Europe.
Let me sound a note of caution to my hon. Friends. On one or two occasions and again this evening, some have suggested that the Bill and the referendum locks will stop all transfer of power to Europe. That is not the case, so we need to continue to be vigilant about the transfers of power to Europe that can take place notwithstanding this Bill.
The Bill requires a referendum for a transfer of competence to Europe and in certain other specified instances, as well as for a movement from unanimity to qualified majority voting. However, my right hon. and hon. Friends will be aware that in a succession of treaties from Britain’s first membership of Europe onwards—including particularly the important treaties of Maastricht and Lisbon—we have already transferred a whole list of competences to the EU. That includes not just exclusive competences where only the EU can act, but shared competences where if the EU chooses to act it can extinguish national competence in the same area and in supported competences. As I say, the list is very long and it is backed by the jurisdiction of the European Court of Justice, which has shown its ingenuity in extending that jurisdiction, and by the appetite for power of the European Commission.
Each time the EU chooses to act, to exercise power in respect of one of those many areas of important competences that it already possesses and to make policy, it extinguishes our ability to make policy at a national level in this Parliament. Each time it chooses to make law, to bring in a regulation or to put in place a directive for states to interpret, it is putting in place a law that takes precedence over our national law—and the European Court of Justice will see to it that in any case of conflict, European law takes precedence over our national law.
Notwithstanding the Bill’s provisions, there is considerable scope for the European Union and its institutions to take more power from this House, from our country and from our electors. We can already see important examples coming along. I thus urge my right hon. and hon. Friends to express the same degree of determination to ensure national self-determination and parliamentary sovereignty when we get to the occasions that we know lie before us in the not-too-distant—in fact, the immediate—future, particularly in respect of freedom, security and justice, where we have already agreed to certain opt-ins for one or two important provisions. We know that the EU has a big programme in these areas and that many more of them are coming along.
I gently remind my right hon. and hon. Friends that we promised in our manifesto that we would seek to repatriate powers to this country and certainly not give additional powers to the EU. The valuable opt-out that we enjoy should be mentioned. It was a red line for the previous Labour Government, although created under pressure from Conservative Members, so we need to be very careful as a party that we go no further than Tony Blair and the previous Labour Government were prepared to go in providing the EU with an opportunity to make the criminal law of this country. I believe that criminal law belongs to a nation state: individual electors should be able to have their democratic say about it, as should their Members of Parliament.
I urge my right hon. Friends to be equally vigilant in the important area of economic governance. We know that there is an agenda and we will look very carefully at it in the future. We have seen reports in the press—apparently well-founded reports—that the European Union is, through the exercise of its trade policy, seeking to interfere with our immigration policy through the granting of visas as part of trade negotiations. That too would constitute a transfer of power to the European Union. The ability to determine who should be admitted to this country as an economic immigrant does not belong to the European Union; it belongs to a nation state. We should make that determination, in accordance with our needs and with the promises we have made to the electorate on the important subject of immigration.
I take heart from what has been said this evening by my right hon. Friends the Ministers about that and about the many other issues that will no doubt go to the European Union. We know that the EU, particularly the Commission, is a beast that is hungry for power and is never satisfied, or at least has not been satisfied so far in its history. Each time we have placed a safeguard in the way to save ourselves from it, the EU has found a way around that safeguard and dismantled it.
Let us hope that things will be different in this instance, but I say to my right hon. Friends that they must be robust in the face of the EU’s demands. As well as the provisions in the Bill, we need Foreign Secretaries and other Ministers who will go to Europe, be prepared to say no and stand up for our national interests—and our supreme national interest is to preserve the ability to decide our own futures and preserve the sovereignty of our Parliament, which has been fought over, has taken so many years to establish, and is so grounded in our history.
I urge my right hon. Friends to do that and I believe that they will, for I have great confidence in them. Certainly, if they do, they will find solid support among Government Members who will back them every inch of the way when they go to Europe and say that this country is not prepared to abandon its opt-out and choose to opt in, is not prepared to submit itself voluntarily to economic governance by the European Union, and is not prepared to abdicate from its proud democracy and grant further powers to the European Union.
I said that my right hon. Friends would have the support at least of Government Members, but they should also bear in mind that the patience and credulity of the British public have been tested to breaking point by the European Union. People in this country are aware of the promises that have been made about the transfer of power to Europe, and if they find that yet more power has been transferred to the European Union, their patience will be tested beyond that breaking point. The grave disillusionment that they undeniably feel with the EU, which expresses itself in so many ways—for example, in their disenchantment with its lack of accountability—will then extend to the politicians and leaders who are perceived to have given away yet more powers to it.
However, I am confident that that will not arise. Let me say in particular to my right hon. Friend the Foreign Secretary—to whom the country owes a great debt of gratitude for the principled stand that he has taken over the euro and many other issues—that he will have the full support of Government Members if he complements the Bill’s provisions by going to Europe and seeing through the robust words that he has uttered this evening. He will deserve all our support if he does that, as I am sure that he will.
Kelvin Hopkins
The hon. Member for Hertsmere (Mr Clappison) made a fine speech, and I agreed with every word of it. Let me too congratulate the hon. Member for Stone (Mr Cash), who chairs the European Scrutiny Committee, of which I am a member. Several other members of the Committee have contributed to this and earlier debates, and I think that all its members, on both sides of the House, do an excellent job.
I support the Bill to an extent, but I will become a true believer only when the first referendum takes place under it. I look forward to voting in that referendum, whatever its subject. Indeed, I think that any referendum on the European Union would be welcomed not just by me but by the British people. They have long wanted to express a view.
Throughout the European Union, the Euro-barometer—the measure of support for the EU—has been sinking for years. Its level is particularly low in Germany at present. Only yesterday, The Times reported that there was a serious possibility that the agreement on a scheme to bail out the weaker euro members in view of their present difficulties would fail because the German electorate are very hostile to the idea that Germany should effectively bail out other countries that may eventually include Portugal, Spain and who knows where else, as well as Ireland and Greece. That would cause serious problems for Angela Merkel in Germany. It is not all over yet.
I think we were very wise to stay out of the euro, and, like the Foreign Secretary, I do not believe we should ever join it. Indeed, I think there is now a serious possibility that the euro will be progressively dismantled—I will not say that it will collapse—and that we will return to something like the Deutschmark zone and other single currencies. Countries could then adjust their currencies according to their own needs and be able to choose their own fiscal and monetary policies. That is how economies will work together. There will be shock absorbers between economies, which is the way it should be. The arrangements in the post-war settlement worked extremely well. When countries had their own currencies, they had stable currencies relative to other currencies, but they also had the ultimate possibility of devaluation or revaluation, as necessary. Each country chose its own monetary and fiscal policies. That is not just about democracy; it is about making the world economy work better.
Many other Committee members have spoken. I had the pleasure of being a signatory to a number of amendments that were supported by Members on both sides of the House. On one or two occasions, I had the opportunity to vote for these amendments. Interestingly, I voted for amendments that were against a Conservative and Liberal Democrat coalition Government, but I was regarded as rebelling. My local newspaper said I was a rebel because I had voted against a Conservative and Liberal Democrat Government, which is very strange.
We have heard some witty and very worthy, clever and excellent speeches from both sides of the House, which I welcome, but I think that behind all these clever speeches there is still a desire among the upper echelons of the political class to retain real power in the EU within that political class and prevent it from being put in the hands of the electorates. In many EU countries, the Eurosceptics have been stripped of all positions. Indeed, in respect of my own party, the previous Government introduced under Tony Blair a list system of proportional representation. That enabled the party to strip out all Eurosceptics from the European parliamentary party and to make sure that all European Members were onside with the EU. It also lost us scores of seats, but that was a minor sacrifice compared with the importance to previous leaders of making sure that all the Members of the European Parliament in our party were on the side of the EU. Unfortunately, it also enabled certain extreme parties to get seats in the European Parliament. I put it to both Front-Bench teams that we should return to a single-Member seat, first-past-the-post electoral system for the EU. I look forward to that day, and I hope that we will achieve it.
Some Members talked about the possibility of other opt-outs. I would like to think that at some point a member state—perhaps Britain—might choose to opt out of something of which they are currently a member. I suggest as a starting point giving notice that in five years—or whenever—we will opt out of the common fisheries policy and restore our control over British fisheries, and thereby restore the fishing stocks and stop the nonsense of discards.
There are so many things we could say about the EU, but the fundamental point is that the people of Britain and of all member states want a greater say in what happens to the EU. I do not think they like the euro, and I do not think they like the sense of being controlled by a bureaucratic regime in Brussels. They want to have democratic control through their member states. That way, we can have better relations between those member states, because then we will feel free to be friendly with other states as we will have control of our own country and will not be controlled by anybody else. Coming together on a voluntary basis as a friendly, comradely association of member states is the future for Europe that I think would be overwhelmingly preferred by the millions of people of all the European nations.
I am happy to support the Bill, but I would like it to be stronger.
Chris Heaton-Harris
I, too, thank the Minister for Europe for being so precise in many of his answers to the questions that we have raised. I also thank my hon. Friend the Member for Stone (Mr Cash) for asking more awkward questions than I would ever dare, and the Labour Front Benchers for adding to the debate, although they did so only partially because they just sat there really. However, I did welcome the contribution made by the hon. Member for Wolverhampton North East (Emma Reynolds). It was probably the most coherent of the lot, so I congratulate her.
The shadow Foreign Secretary’s remarks about the Government taking their eye off the ball when it should have been concentrating on these important matters were slightly unfair, especially as they came from someone who, when in a slightly more junior job on the Government Benches, was known in European circles for going missing, not all the time, but on one particular occasion. He was being called to speak in the European Parliament by President Borrell when he unfortunately stepped out to take a very important phone call and left just an empty chair next to a startled UK official. President Borrell did not know who the then Minister for Europe was or what he looked like—he had been told he was a young precocious man who was raring to go—and so, thinking that the UK official was the right hon. Member for Paisley and Renfrewshire South (Mr Alexander), he called him to speak. In the end, a cross and flustered Minister rushed into the Strasbourg plenary session to catcalls, boos, whistles and derogatory laughter—and that was after he gave his speech. It is the way his Government handled these European issues that makes this European Union Bill all the more important.
Just about everyone who has spoken has taken on board and asked the Minister for more clarification about one surprisingly consensual part of this Bill. That is the general dissatisfaction with the way we scrutinise EU legislation in this place. We talk about this quite a lot, but a written ministerial statement made a number of vague proposals. I know it was an invitation for this House to do more, but will the Minister say what he would expect this House to do to take him up on this offer? Does it involve the Chairman of the European Scrutiny Committee writing a letter to him, forming a team with ministerial officials and taking this matter forward? Everybody in this place wants to do the job of scrutinising European legislation better and we would like to know exactly what the slightly vague couple of sentences in the written ministerial statement actually mean.
The Bill now goes down the Corridor and the strange noises we hear in the background are those of tombs opening and biographies being dusted down by the great and the good of the former diplomatic service, who intend to remind everybody of how everything was so much better when they were left to operate behind closed doors with few checks or balances and how those bloomin’ elected people, of all political persuasions, down the other end of the Corridor are wrong because they always try to react to public opinion. I would like to think that one of the strongest arguments for this Bill is the fact that we are dragging all this out into the open and binding the hands of Ministers when they go into negotiations in Europe, although not as much as I would like. The noise that is coming in opposition to the Bill only strengthens the Minister’s hands in getting this through.
Priti Patel (Witham) (Con)
I wish to raise just a few points, but I first wish to welcome the Bill and the introduction of the referendum lock. I congratulate the Minister for Europe on the way in which he has addressed many of the concerns raised during the passage of the Bill, particularly as regards my amendments and new clauses. I thank him for his perseverance with me and my arguments. He has given some strong commitments on transparency in the EU, on improving cost-benefit analysis, and on having better impact assessments and more EU legislation held to account in this Parliament. He has also rightly given us warm words on ending the era of Departments gold-plating directives and legislation from Europe, as well as on the long overdue one in, one out rule for European regulations.
The Bill will safeguard against some European power grabs—which is of course more than important, long overdue and welcome—but, alas, not them all. As my right hon. Friend the Foreign Secretary said earlier, the Bill is not a panacea for all the EU’s ills, but it is clearly a step in the right direction. There are areas where the EU already exercises competence, as laid down in the Lisbon treaty, and where it can secure more powers from Britain, without the need for any safeguard in Parliament or by triggering the referendum lock in the Bill. The Bill does not deal with those matters, but I continue to urge the Government to do everything possible to prevent British interests from being undermined in that way. I would press the Government to work towards repatriating powers from Europe to this country, to protect our sovereignty and to renegotiate our financial contributions and the colossal sums of money that we hand over every year to the EU.
Finally, as we know, the Bill deals with the EU, but as we have seen with prisoner votes recently, this country’s ability to make its own laws is being undermined by another European body: the Council of Europe and its Strasbourg-based institutions, with their increasing desire to exert control over our country and to undermine Parliament and British democracy, and the regular issuing of diktats that the European Court of Human Rights considers but that escape parliamentary scrutiny. I therefore briefly urge the Minister and the Foreign Secretary to consider introducing a similar package of measures and reforms to improve the democratic accountability of those institutions and to ensure that British laws, as we have heard throughout the passage of the Bill, are made in Britain by the British, and that we effectively put the national interest first.
Mr Bone
It is a great pleasure to follow my hon. Friend the Member for Witham (Priti Patel), who, as usual, made a powerful speech and, of course, mentioned the colossal amount of money that we give to the European Union for redistribution. In other words, it is rather like foreign aid, except perhaps that it is not used for the best purpose. Under the last five years of the Labour Government, £19.8 billion net was given to the European Union. Unfortunately, under the first five years of the coalition Government, the figure will be twice that amount, and she made a powerful point.
Earlier today, I visited Lancaster House for international women’s day and the launch of the fund for groups that want to help the victims of human trafficking. It was brought to my attention by Maria Grazia Giammarinaro, who is a United Nations special representative and co-ordinator for combating trafficking in human beings, that such things do not stop at the European Union; they go much further and cross borders.
When we started to debate the Bill many weeks ago, my hopes were raised that we would discuss much wider issues than we got round to discussing. Tonight, of course, we have heard a lot of powerful speeches. I must praise our Front-Bench team. Obviously, whenever I listen to the Foreign Secretary, I am always convinced by his arguments, even when he is totally wrong. Again, I was convinced tonight. When the shadow Secretary of State spoke, he absolutely convinced me that the Government were totally correct.
The shadow Secretary of State did not say—I should have liked to intervene to ask him—whether, when the Bill becomes law and if Labour Members ever came to power again, they would actually honour it. Of course, we are now talking about fixed-term Parliaments, so it is quite possible that Labour Members will be sitting on the Government Benches without a general election, but the right hon. Gentleman did not answer and avoided saying whether they would support the referendum lock.
Obviously, my hon. Friend the Member for Stone (Mr Cash) has for years led the battle for sense in the European Union. Now that he is Chair of the European Scrutiny Committee, we seem to be getting a lot more European business in the House. That is to be wholly welcomed, at least by myself. He told us about his pamphlet, which, I understand, is for sale in all good bookshops, but he did not tell us one thing: how many euros it costs.
As usual, my hon. Friend the Member for Hertsmere (Mr Clappison) made the most powerful of speeches with which I agreed entirely. That brings me on to the Minister for Europe, who has been in his usual great humour and on top of everything. He has been an absolutely wonderful No. 2, and it is obvious that when the reshuffle comes, perhaps on 6 May, he will be promoted to a Cabinet role. The obvious answer for the new Minister for Europe is my hon. Friend the Member for Hertsmere. May I put in that bid?
The hon. Member for Luton North (Kelvin Hopkins), who spoke from the Opposition Benches, was wonderful. He made his normal pro-European speech, which was against the EU. It is a great shame that all the Members on that side of the House do not share his views.
Recently, I was in Portugal on human trafficking business. I learned a lot about the EU there and was able to discuss the European Union Bill with the person sat next to me at dinner, who was a communist. I found that the Portuguese Communist party and I have a lot in common—we both want to come out of the EU.
Mr Buckland
I am sure that my hon. Friend the Member for Wellingborough (Mr Bone) meant that he was on all-party parliamentary business on human trafficking in Portugal, and I am more than happy to set the record straight on his behalf, as he has been not only my colleague, but my very good friend, for many years, including when I was fighting elections in south Wales and attracting record numbers of votes cast against me. At one time, I had an unofficial competition on that with my hon. Friend the Member for Hertsmere (Mr Clappison), who himself had been a valiant by-election candidate in another part of the country. I think I won that contest.
In that context, I was very attracted by the speech made by the hon. Member for Luton North (Kelvin Hopkins), who reminded us that, at one time, there used to be such a thing as socialist MEPs representing the British Labour party. I remember standing against one in 1994 who beat me by an Olympian margin, but whom I distinctly recall saying in a public meeting, when asked about the four freedoms, with which we are all familiar as underpinning the treaty of Rome, that he disagreed with every one of them. His approach was rather more of the school of Joseph Stalin than that of Jean Monnet. I am almost nostalgic for those days, and I am sure that there are Labour Members who share that nostalgia.
To come fully up to date, this has been a thought-provoking debate not only on Third Reading but in Committee and on Report. In particular, during consideration on Report today, we had an interesting and important debate about how the House will deal with issues relating to the EU. My hon. Friend the Member for Daventry (Chris Heaton-Harris) asked one of the most important questions of Ministers: how are we, together, to develop a proper system by which we not only scrutinise European proposals and legislation but behave more proactively? In other words, how do we initiate thematic debates about the future of the EU, whether that be on issues such as enlargement, external trade or the environment? We could take our pick.
It is time for a far more proactive approach to be taken. Far too often, we have simply reacted to the proposals emanating from the European Commission. Like all good democrats, a lot of us have a problem with the concept of a civil service that initiates policy. That has fundamentally over the years vexed many British parliamentarians, who are used to a system of a civil service that enacts policy initiated by elected politicians—although between 1997 and 2010 that line was sadly blurred. That is the fundamental dilemma that has faced many of us over the years when we have wrestled with the issue of the EU.
I was amused by the contribution made by the right hon. Member for Paisley and Renfrewshire South (Mr Alexander), the shadow Foreign Secretary. After 13 years in which the locusts ate on Europe, it takes a lot of chutzpah to stand up and lecture the Conservative party and this Government on their approach to the EU. We had a 13-year vacuum—policy inertia, confusion and chaos—which was another chapter in the history of a political party whose stance on Europe has veered from the ridiculous to the even more ridiculous. I may still be a fairly young person, but I remember facing a Labour party not so many years ago that advocated withdrawal from the European Union.
The proper debate on Europe has in the main, with a few honourable exceptions in the Opposition, remained fairly and squarely within the confines of the Conservative party. I make no apology at all for the fact that at times the debate has become heated—some would say acrimonious—and difficult for the Conservative party, but in 2011 perhaps it is time for us to stand back, take stock and accept the fact that with that debate comes creative energy. I like to see the Bill as another example of that energy.
The Bill is by no means an end. It is a mere stage, but an important stage which reflects the fact that the era of professional diplomats making decisions in closed rooms has gone, as it should have done. Now is the time for a reconnection between politicians and the public. What better way to do that than via the mechanism of referendums? The Bill makes that important concession and makes it in a careful and considered way.
I have always been somebody who can be described as positive about our membership of the European Union. I make no apology for that. I made the same point on Second Reading. I have been convinced for many years about the economic and political case for our active and leading membership of that institution. I am, however, deeply sceptical about moves towards further European integration when it comes to the criminal law, for example, jurisprudential issues or the encroachment of the judiciary on matters that are properly the province of this place and of politics.
My hon. Friend the Member for Stone (Mr Cash) is right when he reiterates in his eloquent way the point about judicial encroachment. He is right to say that that is not a problem peculiar to the institutions of Europe. It cuts right across the balance of power domestically. The decision of the previous Government to create a Supreme Court, which was a regrettable and mistaken decision, reinforces the creation of two cultures—a culture of judicial interference and judicial we-know-bestness, as opposed to a culture of political control and power exercised by democratic representatives of the people.
Nobody in the House can safely say that we are out of the woods on that issue. It is one of the defining issues of our times. It was wise of Ministers to accept the fact that there are aspects of the Bill that will be subject to judicial review. The Bill is no exception to a general rule that whatever Bill the House and the other place pass, we are increasingly at the mercy of applications for judicial review. That is not something that we will be able to resolve tonight, but from tonight we will be able to move forward to the new approach to the development of policy on Europe that all of us in the House want to see—an openness from Ministers at the Dispatch Box, a frankness in assessing the importance of decisions made by the Council of Ministers, and a real partnership between those of us who sit on the Back Benches as legislators and those who sit on the Front Bench as our representatives in the Councils of Europe.
I will end on this note: there is a salutary lesson from history about the dangers of Executives being too far removed from the will of the legislature on matters of foreign policy. Let us remember what happened to President Wilson when he came back from the Paris peace conference as the leader of the political world about to take a brave new stride into the League of Nations, only to find that his legislature was not with him. At a stroke, American foreign policy was changed. There needs to be a careful interlink between the will of the House and what our Ministers do in the Councils of Europe, which is why I support the Bill as an important step forward in that process.
Mr Speaker
Order. The winding-up speeches will begin at 9.45 pm. I am keen to accommodate two further speeches before then, if humanly possible.
Richard Drax (South Dorset) (Con)
It is a privilege to follow my hon. Friend the Member for South Swindon (Mr Buckland). I, too, pay tribute to the Minister for Europe; if the debates have confirmed only one thing in my mind, it is that he and I are poles apart. For me and many of my constituents, it has been sad to watch a once-proud sovereign nation hand over more and more powers to Europe. This federal beast grows bigger by the day, and those it does not seduce it consumes. I have a warning for our party at the ballot box: unless we take a tough stance on Europe, we will pay dearly at the next general election.
Labour promised us a referendum on the Lisbon treaty and reneged on that promise. We have inherited a thoroughly unsatisfactory situation which we hope the Bill will somehow mitigate. I welcome the opportunity to call a referendum on any proposed EU treaty or treaty change that transfers more powers to the EU, but I have grave reservations about whether those measures will prove effective.
It is important to remind the House that five new powers have already been transferred: a European Action Service has been created; the European arrest warrant has been extended; EU regulations have been imposed on the City; EU oversight on our national budget has been agreed to; and our contribution to the EU budget has been increased, despite our objection. As I understand it, the Bill would not have prevented any of those transfers of power.
Even the significant clause 18 is under siege from various legal interpretations. Some highly respected Members of this House do not believe that it will safeguard our sovereignty, and I agree with them. I pay particular tribute to my hon. Friend the Member for Stone (Mr Cash) for all the work he does to stand up for the national interest. It is not a bit of fish or meat for the Eurosceptics, as the Opposition claim. The truth is that it is done in the national interest.
Every day there is further evidence of Europe’s creeping influence on our laws, liberties and livelihoods. This week alone, anti-discrimination legislation has been interpreted in the most extraordinary way by the European Court of Justice, which has ruled that insurance companies may no longer differentiate between men and women. In calculating pension annuities, the Court has decreed that payouts must be the same, despite evidence that women live longer—I think I understand why. Similarly, women will face higher driver insurance premiums, although statistics prove that they are involved in fewer accidents than men. Both rulings are imposed on us by a foreign court and by judges who are unaccountable and unelected. Surely it is time for this country to stand up for itself.
If any referendum should be held, it should be the one that we were promised. We all know what the outcome would be. Then, and only then, would the lion that once was this country roar again. Once more, we would be in charge of our economy, our laws, our rights, our borders and immigration, to name but a few matters. I shall be voting with the Government tonight if the Bill is pressed to a vote, because it is better than nothing. I remain deeply sceptical that it is nothing more than a fig leaf, but frankly, a fig leaf is perhaps better than running around, vulnerable, in the buff.
Mr Redwood
I, like my right hon. and hon. Friends, welcome the two aims of this legislation. The first, to hold a referendum on any future transfer of power, is vital to try to secure some democratic legitimacy for what might happen next. The second, to assert that this House and Parliament in general is sovereign, even over European law, is excellent, but I hope that Ministers will take away from this debate the great sense of unease among many colleagues, who feel that the Bill does not deliver what Ministers say it intends to.
As my hon. Friend the Member for South Dorset (Richard Drax) just said, we face a large transfer of powers in all sorts of areas at the moment—in criminal justice, in City and business regulation, in the External Action Service and, soon, in economic governance. Any one of those areas would deserve a referendum, but the whole lot together would make a good package for testing out the Government’s new enthusiasm for democracy and the debating skills of the Opposition, who say that that is exactly what the British public want. What is stopping them, other than fear and the belief that, perhaps, the British public would not vote for such measures after all?
I am also worried about the assertion of the parliamentary sovereignty clause. My hon. Friend the Member for Stone (Mr Cash) has probed and tested it, and there are legal dangers on the route that we are now taking. Sovereignty is something that we have for a period if we are prepared to use it, but it is also possible to let it slip away or to lose it, and we cannot make this Parliament sovereign by a single clause in a piece of legislation. It means nothing. This Parliament will be sovereign again only if it wishes to be; this Parliament will be sovereign again only if it has some political will; this Parliament will be sovereign again only on the day it says to the European Union, “We disagree with you on this. You will not give us what we want by negotiation, so we are going to legislate for ourselves.” Ministers should not pretend that this Bill has resolved the problem.
Let us take the issue of fish. I have heard Ministers, from all parties that have been in government, say to the House that they, like me, thoroughly disagree with the discard policy, think that it is wrong and intend to negotiate a better answer. No better answer has been negotiated. We gave the European Union 20 years’ warning. Why do we not simply legislate now to take ourselves out of the common fisheries policy and show that this Parliament is sovereign and works in the interests of the British people and a great British industry.
Mr Redwood
That’s great; I am very glad that I have the support, from a sedentary position, of Labour’s Back Benchers.
If this Parliament is never prepared to legislate against the views and wishes of the European Union, people will rightly conclude that the European Union is now sovereign. I mentioned in earlier debates on this legislation that the Crown remained sovereign for a long time in our country, and that Parliament whittled its powers away. There is no precise date on which people all agree that the Crown ceased to be sovereign and that Parliament replaced it, but the situation illustrates that, if we make too many concessions, make too many mistakes and grant too many powers on lease, one day we will not be able to get those powers back. The Crown discovered that it had given away too many powers and lost too many battles, and perhaps power finally resolved to Parliament on the day when they murdered—or killed—the King. That was a fairly definitive act, but it took place after a long series of battles and struggles when power had been ebbing away from the monarchy—and the monarchy was invited back.
I want no such violence in resolving the issue with the European Union, but I do want some political strength and some political substance. Surely, the European Union now does so many things that rile the British people that we should take matters into our own hands.
As my right hon. Friends on the Front Bench will always want to be diplomatic and to negotiate, I give them this final thought in the few minutes that I am allowed. The Germans, for their own reasons, think that they need a treaty change to accommodate the bail-out activities and the huge increase in economic governance powers that they intend to take over the other member states of euroland. They need our signature on that, even though we are not a member state of euroland.
I do not believe for one moment that we will be exempted from many of the requirements for information and common policy formation and negotiated solutions, even if we are opted out for the time being from the power of the fine. We will be dragged into the situation. I wish the Government would not only say, “We have no intention of being dragged into it and seek clearer language,” but to confirm that, say, “As proof of good faith, we want economic powers back.” The latest language from the Government suggests that we are going to keep control over the main elements of our taxation system, not our taxation system as a whole—a red line that the previous Government always said that they had attempted to preserve. We can see the drift in economic powers and economic governance.
The British Government must stand up for British interests. They will have no better chance than the new treaty that is about to be negotiated—so please, Government, use it, don’t lose it.
Mr David
As we come to the end of this Third Reading debate, it is worth reflecting on the impact that the Bill has had on Britain’s standing in Europe and the world. With unemployment rising and living standards falling, and with people the length and breadth of Britain concerned about the health service and the education of their children, this Government have placed before Parliament a Bill that is monumentally irrelevant to the needs of this country.
Although there are parts of the Bill that Labour Members support, I believe that we have demonstrated that large sections of it are ill conceived, ill thought out and contradictory. While the Government have singularly failed, and did not even try, to address the issues that are at the forefront of the minds of the British people, they have succeeded in sending a clear message to our partners in Europe—that this Government do not have a coherent European policy. Where we should have consistency and vision, we see inconsistency and ambiguity. Instead of promoting our national interest in the European Union with vigour and determination, we see a Government ignoring the reality of the modern world—a Government who look in on themselves and see bilateralism as a simplistic alternative to the multilateral engagement that is vital in a fast-changing world.
Such an approach is determined not by what is in Britain’s national interest but by political expediency that places above all else the maintenance of an unholy coalition of pro-European Liberal Democrats and Conservative Eurosceptics. However, as the seven days of debate on this Bill have demonstrated, the Eurosceptics have recognised that this Bill is a ham-fisted attempt to placate them—and if that has been the intention, it has clearly failed. I disagree with many of the arguments of the Eurosceptics, but I recognise their honesty and tenacity. I pay particular tribute to the hon. Member for Stone (Mr Cash) for his work and that of his Committee, the European Scrutiny Committee. Without their hard work and the excellent documents that they have produced, the debates in this House would have been nowhere near as good as they were.
If the Government have failed to buy off the hon. Member for Stone and his colleagues, they have failed, equally, to convince prominent Liberal Democrats that their anti-European tone is more apparent than real. Only this morning, I received a copy of a letter sent by a federalist Liberal Democrat MEP who is a former leader of the Lib Dems in the European Parliament—Mr Andrew Duff. Mr Duff has written to the President of the European Parliament, Jerzy Buzek, proposing a new treaty provision. It is interesting to see what he has written. I quote from his letter:
“Dear Jerzy…As you will be well aware, the British Parliament is about to enact a law which will install and entrench referendums as part of the UK’s national ratification process for all important amendments of the European Union treaties…That being the case, I believe the time has come to lighten somewhat the European Union’s procedure for treaty revision…I propose that”
the European
“Parliament launches an initiative…so that all future treaty revisions will enter into force once they have been ratified by four fifths of the States.”
This means that Mr Duff wants to abolish the need for unanimity among member states and is quite happy for treaty changes to be imposed on the British people and the British Parliament. If anything shows how the Bill has exposed the fault lines in this hapless coalition, it is that absolutely ridiculous letter from the Liberal Democrat, Andrew Duff.
To be serious, one of the most worrying consequences of the Bill is that it seriously questions Britain’s full participation in the European Union. Nowhere has that been more keenly demonstrated than in the comments of the United States ambassador to the United Kingdom. Just a few weeks ago, Ambassador Susman stated that the United States valued the special relationship between the US and Britain. However, he thought that it was also vital for Britain to play a strong role within the EU. Because of the negativity caused by the Bill, Mr Susman felt that it was necessary for the UK to rule out withdrawal from the EU. I am pleased that the Prime Minister has done that. The United States recognises, even if this Government do not, that Britain’s influence in the world requires it to be an active participant in the EU.
After consideration in this House, the Bill will go to the other place. I sincerely believe that it will be scrutinised in detail, and that its fundamental flaws will be not only criticised, but corrected. As it stands, the Bill will lead to a questioning of our parliamentary democracy, a weakening of Britain’s role in the world, and a diminution of our influence in the EU. The British people deserve better, and I hope—indeed, I am confident—that the other place will bring about the much-needed change.
Mr Lidington
I thank all Members who have taken part not merely in today’s debate, but during the seven days of debate that we have devoted to the European Union Bill. I also pay tribute to the team of officials in the Foreign and Commonwealth Office. They have worked tirelessly for very long hours, frequently at weekends, to ensure that the Foreign Secretary and I have been briefed, and that our responses to the debates have taken account of the various and detailed points raised by individual Members from all parts of the House. Our officials have demonstrated a commitment to impartial public service in the best traditions of the British civil service.
As the Foreign Secretary said, we owe a debt of gratitude to all who have played their part in the comprehensive examination of the Bill. Why the hon. Member for Caerphilly (Mr David) ever dreamed that my hon. Friend the Member for Stone (Mr Cash) could be bought off, I cannot imagine. Having worked as a colleague of my hon. Friend for nearly 19 years, and having had dealings with him even before I entered the House, I am in no doubt whatsoever about his principle, tenacity and utter rectitude in refusing to be bought off by any Minister of any Government while he has served in this House.
The debates on the Bill have enabled us to identify, in large part through the assiduous work of my hon. Friend the Member for Daventry (Chris Heaton-Harris), areas where there were gaps in the Bill’s realisation of policy intent, and have allowed us to bring forward amendments. The debates have also provided an occasion for the House to reflect more broadly on issues of parliamentary scrutiny. My hon. Friend asked me a very direct question. The Government are in the initial stages of considering what sort of arrangements we wish to pursue. Although I have met my hon. Friend the Member for Stone and the Chairman of the Scrutiny Committee in the Lords, I have yet to meet the Chairs of the Select Committees on Justice and on Home Affairs, who clearly have an interest in the justice and home affairs measures that are coming forward under Title V.
I believe that it is for Parliament to determine how it collectively wishes to pursue the issue. It may be that other Select Committees, such as the Liaison Committee or the Backbench Business Committee, wish to take views or seek opportunities to debate the matter more broadly. I make no presumption as to what the outcome will be, and I know that my hon. Friend the Member for Stone told me sternly that Parliament would not be told by the Government what scrutiny it should carry out, and that it would come forward with its own thoughts and opinions. I look forward to a vigorous and constructive debate about the shape of future scrutiny arrangements.
The Bill represents an important advance, not least because all parties represented in the House support the principle of it. None voted against it on Second Reading, and even the Labour party now accepts, in the words of its amendment to the Second Reading motion, that
“the principle of referendums on significant constitutional and monetary changes is appropriate”.
That is a real breakthrough, a belated recognition by the Opposition that for too long, major decisions on Europe’s future have been taken without the consent of the British people—the very mischief that the Bill addresses and seeks to put right.
As my right hon. Friend the Foreign Secretary said a short while ago, the Bill does not address, and is not intended to address, every problem and challenge to do with the UK’s relationship with the European Union. We take as our starting point the distribution of competences laid down by the treaties, an approach that does not go as far as a number of my hon. Friends would like. However, I say to my hon. Friend the Member for Hertsmere (Mr Clappison) that we will indeed be vigilant in examining the proposals coming forward from the European Commission or other member states in respect of the competences that the EU already has.
The Bill embodies three fundamental principles: that the British people, and they alone, should have the final say on whether new competences or powers should be transferred from this place to the European Union; that Government should be more accountable to both Parliament and the British people for the decisions that we take in Europe on behalf of the UK; and that Parliament should have more say over treaty changes and the use of ratchet clauses.
There are plenty of things that are wrong with the EU and plenty of flaws in it, and we have heard a lot about them during the debates on the Bill, but I believe that there are also many things that we can and should do together with our partners in the EU to secure the greater prosperity and security of this country and the continent of which we form part. That is why the Government believe it is in the interests of the UK to be active and activist within Europe, and that we need to engage effectively and energetically with our European partners to secure common objectives.
If that is to succeed, however, we have to address the disconnection that exists between the British people and the way in which decisions are taken on their behalf in Europe. Contrary to what the hon. Member for Caerphilly suggested, I find sympathy from European counterparts to whom I talk privately, because they are aware that public disaffection is felt in many other member states, not just here. The Bill, which is intended to remedy that disconnection between the public and the EU, is an essential requirement of the EU’s democratic legitimacy in this country. By passing it, we can start to rebuild public trust by returning greater power to the British people, from whom it derives. That is what the Bill does, and that is why I commend it to the House.
Question put and agreed to.
Bill accordingly read the Third time and passed.