European Union Bill

Baroness Stuart of Edgbaston Excerpts

Tuesday 8th March 2011 Commons Chamber

[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.

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[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—

[Ms Gisela Stuart]

Birmingham, Edgbaston.

[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.

[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.

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[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?

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[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.

However, I also want to have a sense of transparency: I want to know what Ministers are getting up to in Europe. I want this House to be properly involved in matters to do with the European Union, as does the hon. Member for Birmingham, Edgbaston. That is why I keep raising the example of Denmark. I have not yet mentioned Finland, but I will now go on about both those countries.

[Ms Stuart]

May I encourage the hon. Gentleman to go on about Finland, because it has this much more right than the Danes do?

[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.

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[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.

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[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.

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[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.