European Council

Debate between Bernard Jenkin and David Lidington

Tuesday 7th January 2014 Commons Chamber

[Mr Lidington]

I think the appropriate Minister will have to write to the hon. Gentleman about the particular issue he mentions about posted workers. The key point about the conclusion on tax is that it is part of taking forward the G8 agenda on tax transparency that the Prime Minister led at the Enniskillen summit last year.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

If EU defence is really just harmless intergovernmentalism, why do we have directives that have the force of law in the field of defence? Why do these conclusions include invitation after invitation for the Commission, which is not an intergovernmental institution, to lead on initiatives? Why are we still in the European Defence Agency, which contains expensive provision for qualified majority voting on defence? Is not my right hon. Friend becoming somewhat blind to the fact that we are moving towards a federal defence policy and a European army? He is in denial.

[Mr Lidington]

My hon. Friend is mistaken in his analysis of the EDA. The Under-Secretary of State for Defence, my hon. Friend the Member for Ludlow (Mr Dunne), who has responsibility for defence procurement, took a very hard line and successfully won a flat-cash settlement for the EDA this year. We held out and it required unanimity for that budget to be agreed. It is simply not the case that we can be overridden by a QMV vote.[Official Report, 15 January 2014, Vol. 573, c. 11MC.]

The Commission has a role under the treaties with regard to industrial policy and, of course, the operation of the single market. However, the single market as regards defence is qualified in the treaties by articles that make it clear that certain matters are reserved from normal single market arrangements because they are critical to national security. Embodied in the European Council conclusions is a very clear direction from all 28 Heads of State and Government that the Commission should stick to what is given under the treaties, that there should be no attempt at competence creep and that there should be no move towards national European champions or a circumvention of the freedom of member states to strike sensible defence partnerships with countries outside Europe, and instead that the Commission should work on ways to make Europe’s defence industries more competitive and its defence markets more open in a way that, incidentally, would provide great opportunities for the United Kingdom’s first-class defence suppliers. That move towards greater openness in areas of defence procurement is something that United Kingdom companies have been pressing Ministers to achieve.

European Union

Debate between Bernard Jenkin and David Lidington

Tuesday 13th December 2011 Commons Chamber

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I will leave the matter of the institutions—it is obviously too sensitive a point—but why would South Korea not have agreed a bilateral arrangement with a country such as Britain in any case, given that we are one of its allies and so on? Why would the South Koreans want to take protectionist measures against us if they are prepared to make a free trade agreement with the rest of the European Union?

[Mr Lidington]

The terms that one is able to extract in the context of such a negotiation will be more favourable if one can negotiate as part of a bloc of 500 million consumers. What the EU was able to offer South Korea collectively was access to a market of 500 million. The UK on its own would have been able to offer access to a market of 50 million to 60 million consumers. That is not an insignificant number, but it is a tenth of the size of the European Union as a whole. That difference in scale means that European countries have greater weight and leverage when they are able to get their act together and negotiate en bloc.

The third reason I believe it remains in our national interest to stay an active member of the European Union is that membership enhances our ability to influence events abroad. On issues where there is a genuine common European interest, where the national interests of the 27 member states converge, it makes sense for those member states to act together, pool our influence and speak with a united voice. One voice representing 500 million consumers is heard more loudly in Beijing, Delhi and Brasilia than 27 separate voices. However, it is equally the case that where EU member states do not agree, it is right and proper that, as sovereign nations with our own national interests, we speak and act independently. It is also right that foreign policy and security and defence policy should remain matters where unanimous agreement is required for a European position to exist.

European Union Bill

Debate between Bernard Jenkin and David Lidington

Monday 11th July 2011 Commons Chamber

[Mr Lidington]

The amendments to clause 6 would introduce huge inconsistency in the referendum lock. They would make the method used to transfer competence or power the determining factor in deciding whether or not a referendum should be held, rather than the fact of the transfer of competence or power itself. There are four ways of amending the treaties to allow transfers of power and competence from the United Kingdom to the European Union. First, there is the ordinary treaty revision procedure. Secondly, there is the first part of the simplified revision procedure, which was the method used recently to agree the recent treaty change on the eurozone stability mechanism. Thirdly, the British veto could be given up using the second part of the simplified revision procedure set out in article 48(7) of the treaty on European Union. The fourth and final way is through the use of a decision or passerelle without formal treaty change.

The Lords amendments seek to remove the last two methods from the referendum lock. I do not see the logic in this. For example, the amendments would mean that were a future UK Government to decide to give up their veto over foreign and security policy under the ordinary treaty revision procedure, there would first have to be a referendum, but if they decided to give up that veto under the passerelle decision in article 31(3), which would have exactly the same effect as a change under the ordinary revision procedure, there would be no requirement for a referendum. I do not think that the British public would understand being able to vote on a treaty change that gave up the veto but not having a say over a passerelle that did exactly the same thing, and there are other such examples. As my right hon. and noble Friend Lord Howell argued, this would be tantamount to locking the front and back doors of a house but leaving the kitchen window open. It is not the way to restore the trust of the British people.

The amendments would also draw an artificial distinction between a possible future agreement on a common European defence that would involve the creation of a single, integrated military force and other similar decisions that would not. The amendment suggests that the only controversial element would be a decision to develop a “single, integrated military force”, but there would inevitably be confusion over the extent to which such a force would be established. For example, would the establishment of an integrated command structure, an integrated unit or integrated budgets count? That lack of clarity could allow each step to be presented as “not quite” leading to a single integrated military force, and therefore “not quite” justifying a referendum. It is important that we hold to the principle that were a British Government to decide to opt in to a common European defence, that should ultimately be subject to a decision by the British people. A common defence could undermine the pre-eminence or capability of NATO, notwithstanding any assurances provided in the EU treaties. Maintaining that pre-eminence has been a long-standing concern of this and previous British Governments.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

My right hon. Friend is making an able demolition of these unacceptable amendments, but will he describe what sorts of decisions on common defence he thinks would currently trigger a referendum, because it is difficult to see how such decisions would constitute a transfer of power under the rather narrow definition set out in the Bill?

[Mr Lidington]

As the House debated in Committee and on Report, in the Bill it is the creation of a common European defence entity that goes beyond what is defined as a common security and defence policy, which as my hon. Friend knows is very limited in scope within the treaties as they stand. If there was to be a common European defence, that would clearly have to be defined in treaty terms, but sometimes, as he would be the first to note, language that appears quite generalised in scope, once written into a treaty, provides the basis on which numerous detailed measures can then be brought forward because there has been an overall extension of competence to the EU institutions. It could—I am not saying that it always would—spell the end of an independent UK defence policy, which was one of the previous Government’s red lines during their negotiations on the Lisbon treaty.

The amendments would also remove any decision to participate in a European public prosecutor from the referendum requirement. Hon. Members will recall the sensitivity and divergence in views across Europe over the idea of a European public prosecutor who would be able to launch prosecutions in the United Kingdom and other member states in areas affecting the EU’s financial interests. When we considered this issue earlier this year it was accepted that people should be asked for their approval before any Government could agree to participate and allow cases to be prosecuted independently in the UK’s legal system.

We have always guarded jealously—rightly, I think—the principle that decisions on whether to prosecute any individual or corporate entity should be taken by the designated independent prosecutors. To give those powers to some new European body that could come in and state whether a prosecution would or would not take place, irrespective of what the Crown Prosecution Service, the Director of Public Prosecutions or Her Majesty’s Revenue and Customs said about a particular case, would be a very serious shift of power and competence away from this country to Brussels. It would be right for the British people to be asked to assent to that before a Government were allowed to ratify such a decision.

Before I move on from the Lords amendments to clause 6, I should like to express my amazement that, when the House of Lords voted for an amendment to remove from the referendum lock a decision to end the requirement for unanimity in agreement to the EU’s multi-annual financial frameworks, the official Opposition voted in favour of that proposal. I hope that the hon. Member for Caerphilly will explain on the record where the Opposition now stand on the matter. Everyone in the House, whatever their views on the EU, knows that in the next couple of years a key issue facing every Government in the EU and all the Brussels institutions is the negotiation on the new MFF which will effectively set budgetary decisions and ceilings for the next five or seven years in the EU’s life and development. It is vital that that remains subject to unanimity and that the British Government, whoever is in office, continue to have a right of veto.

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[Mr Lidington]

I decided to include the words on the basis of the best legal advice available to me across Government at the time. When preparing the Bill for introduction into this House, I examined the wording and the question of whether a reference to the 1972 Act alone would be appropriate. I was given very clear legal advice that, because of the other statutes that make reference to the application of EU law, a simple reference to the 1972 legislation would not suffice. That explains the original wording of the Bill that came before the House of Commons.

What we have sought to do in framing our amendments to the Lords amendment is to recognise the view that the other place took that clause 18 should incorporate language that recognises the particular importance of the 1972 legislation. We see no reason why we should not amend the clause to make a specific reference to the 1972 Act so long as the clause also makes reference to those other Acts that give effect to EU law. This reflects the Government’s consistent position that other Acts of Parliament— independently of the European Communities Act 1972—might also allow for the incorporation of directly effective and directly applicable EU law into the UK legal order.

[Mr Jenkin]

I still do not understand what was wrong with the Government’s original drafting.

[Mr Lidington]

We believe that the original drafting met the tests that we had set to implement our policy of having a declaratory clause. What we are trying to do is to express through Government amendments the point made in the House of Lords that the 1972 legislation is of particular importance, while preserving the point of principle that we believe was incorporated in the original language as debated by the House of Commons.

European Union (Amendment) Act 2008

Debate between Bernard Jenkin and David Lidington

Wednesday 16th March 2011 Commons Chamber

[Mr Lidington]

We can debate whether or not it is a passerelle. It is certainly the first time that the provisions under the Lisbon treaty for a simplified revision procedure, rather than the full-scale procedure to which my hon. Friend alluded, has been employed.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

Can we be absolutely clear what we are doing here? It used to take months, even years, to change a European treaty. Tonight, we are going to debate this motion for 90 minutes and then the Government will go to the European Council and agree to that change in the treaty. That is correct, is it not, because the next time this comes back for scrutiny it will be a fait accompli?

[Mr Lidington]

No, I do not share my hon. Friend’s analysis of the procedures that lie ahead of us, and I think he underestimates the further opportunities there will be for the House to consider this proposed treaty amendment. I will come on to that in a little more detail later.

First, however, I want to make it clear why the Government believe that agreement to this treaty change is in the interests of this country. As my right hon. Friend the Prime Minister made clear to the House in his statement following the European Council held in December last year, no one should doubt that stability in the eurozone is in the interests of the United Kingdom. Nearly half our trade is with the eurozone, and London is Europe’s international financial centre. It is precisely because of this interrelationship that the UK’s financial institutions and companies, both big and small, have huge exposure to the banks and businesses based throughout the eurozone. Worsening stability, let alone a further and prolonged economic and financial crisis, would pose a real threat to the UK economy and to jobs and prosperity in this country.

--- Later in debate ---

[Mr Lidington]

My hon. Friend makes good points. It is in our interests that the euro succeeds. Many in the House still doubt whether that is possible, but I can say only that, in discussions with my counterparts throughout the European Union, I recognise that those countries that have chosen the euro as their currency retain an incredibly powerful political commitment to the project, and I simply do not think it realistic to talk about shaking them from that and trying somehow to bring about some eurozone Gotterdammerung in the near future. The converse would be true: that sort of outcome—the disintegration of the eurozone—would cause enormous damage to jobs and to prosperity in the United Kingdom, precisely because of the interrelationship between the economy of this country and the economies of our chief trading partners.

[Mr Jenkin]

Will my right hon. Friend allow me?

[Mr Lidington]

No, I am not giving way again at the moment.

A number of my hon. Friends were also keen to be reassured that the proposed treaty change does not and will not transfer any competence or power from the United Kingdom to the European Union, and I want to reassure them now. As I have mentioned, the treaty change involves an amendment to one of the provisions that applies only to member states whose currency is the euro, not to others. Therefore, we cannot be part of the ESM without joining the euro itself.

The change is also being undertaken using article 48(6) of the treaty of the European Union, which explicitly states in its provisions that it

“shall not increase the competences conferred on the Union in the Treaties”.

All member states are agreed on that point and stated so, in terms, in paragraph 6 of the recitals to the draft decision. The opinion of the European Commission, dated 22 February, reaffirms that the proposed treaty change does not affect the competences conferred upon the Union.

Some hon. Members have questioned whether the Government should be required to hold a referendum even when the United Kingdom is not directly affected, and this starts to address the point that my hon. Friend the Member for Stone (Mr Cash) made in an intervention. As I highlighted earlier, the European Union Bill, after our seven days of debate on it, will ensure that any treaty changes constituting a transfer of competence or power from this country to Brussels will be subject to a referendum. But this treaty change will enable no such thing, and it does not make sense to try to insist on a referendum on agreements that concern only other member states. It makes sense no more than it would have made sense for Germany to hold a referendum on the recent defence treaty between the United Kingdom and France.

The treaty change under discussion is in our national interests, but on top of that, to come to the point that my hon. Friend the Member for Basildon and Billericay (Mr Baron) made, the Prime Minster during the course of the negotiations achieved two further important objectives. First, as the conclusions of the December European Council and, more importantly, the preamble—the recitals, as they are known—to the draft decision itself confirm, once the ESM is established to safeguard the stability of the euro area, article 122(2), on which basis the European financial stability mechanism was established, will no longer be used for such purposes. Therefore, our liability—bequeathed by the previous Government—for helping to bail out the euro area through EU borrowing backed by the EU budget, under the EFSM, will cease. That was an important achievement for British interests.

European Union Bill

Debate between Bernard Jenkin and David Lidington

Wednesday 26th January 2011 Commons Chamber

[Mr Jenkin]

I am not sure how to answer that question. If the hon. Lady does not mind, I will continue my remarks, because I intend to sit down shortly so that other Members can take part. All I will say is that those decisions should be reserved not only for Parliament, but for an Act of Parliament. They are of such significance that I would prefer the Government to accept amendment 82 so that a decision on those matters is made by referendum.

I remind the Minister that we originally stood on a manifesto commitment to have a referendum on the Lisbon treaty. Indeed, the Liberal Democrats, with whom we sit in coalition, wanted a referendum on the EU as well. Given that common ground, I cannot for the life of me understand why we should not have a referendum on at least this aspect of the Lisbon treaty. If the Liberal Democrats want to call it an “in or out” referendum, they may do so, but the question on the ballot paper should simply be: “Do you want the criminal justice system of this country to be controlled by the European Union?” I know what the answer would be. If the Government were to hold that referendum, I think that they would be very popular. In fact, it might even make the coalition popular. I recommend it to the Minister.

A few moments ago I checked to see whether there is a copy of the document that I am holding on the Table. There are all sorts of things on the Table, including “Vacher’s”, the Standing Orders, “Erskine May” and documents relating to the proceedings of the House. There is the guide to standards of conduct in public life and all sorts of things that direct the behaviour and conduct of Members and what we do in the House. However, this document is not there. It, of course, is “Consolidated Texts of the EU Treaties as Amended by the Treaty of Lisbon”, as published by the Government. I have to say that the index is a little thin, which makes it difficult to find one’s way through it. This is the document that now governs this country. Unless we change our relationship with the EU, this will be the constitution of the United Kingdom, as we have no written constitution of our own. These are the laws by which we are governed, but it is not even on the Table. That underlines how this House, 20 years after we signed the Maastricht treaty, which began to establish European governance, is still sleepwalking into a European federation.

There are those who wishfully believe that the argument has somehow been won by the Eurosceptics. It is an argument that they do not want to have. They want to avoid it because in order to resolve the democratic government of this country, we will have to confront the EU. There will have to be a disagreement with our European partners, because there is so much pride invested in the document, and other member states have so much pride in having drawn the United Kingdom into those arrangements. They will have to be confronted with the humiliation that they were wrong. As the euro collapses around our ears and the peoples of Europe rise up in the streets of their capitals, there could be no better time to do that; and there could be no better time to do it than when the EU itself is asking for new powers and asking us to agree to things for which they need our consent. That is the time we should be asking for our powers and our governance back on a mutually agreed basis. It is lamentable that the Government have not even the willpower to ask for those things.

[Mr Lidington]

The decision on whether to exercise the bloc opt-out is important and sensitive for the United Kingdom. On that point at least, I agree with my hon. Friend the Member for Harwich and North Essex (Mr Jenkin). Its implications for the whole range of complex, technical and often interrelated measures will need to be carefully considered, and they ought to be carefully considered by Government and Parliament. I agree completely that Parliament should give its view on a decision of such national importance. That is why the Government have committed publicly to having a vote in both Houses before making a formal decision on whether we wish to opt in or out.

As outlined in my written statement on 20 January, we will

“conduct further consultations on the arrangements for this vote, in particular with the European Scrutiny Committees, and the Commons and Lords Home Affairs and Justice Select Committees”.—[Official Report, 20 January 2011; Vol. 521, c. 51WS.]

The 2014 decision, however, concerns measures that the UK agreed pre-Lisbon, and in most cases they have already been transposed into United Kingdom law and implemented.

I shall respond briefly to a couple of points that my hon. Friend has raised. Civil justice measures are already subject to European Court of Justice jurisdiction—and were so prior to the Lisbon treaty. The measures falling within the scope of the 2014 decision on criminal justice were not subject to section 2(2) of the European Communities Act 1972 before the Lisbon treaty; the majority of those items of legislation, which are in force in this country, required their own separate Acts of Parliament in order to be implemented, including the Extradition Act 2003, which implemented the European arrest warrant, and about which hon. Members on both sides of the House have many concerns.

If the UK were to decide to remain in the pillar three measures, no new transfer of power or competence would therefore be associated with that decision: it would be neither a treaty change nor a ratchet clause. The decision for 2014 is therefore different in kind from the decisions that we propose, in the Bill, to subject to either a referendum or a primary legislative lock.

Until the Government have decided what to propose on the bloc opt-out, it is difficult to reach any decisions about what to do on subsequent opt-ins, but such decisions seem to have similarities with the decisions on post-adoption opt-ins to new pieces of JHA legislation, with the important difference that this country will already have participated in the measures in question.

The Government will pay all proper attention to the need for parliamentary scrutiny of any such opt-in decision, should that prove to be necessary and should the Government wish to opt back into selected measures; but, just as the arrangements for enhanced parliamentary scrutiny of current JHA opt-ins are a matter to be agreed outside the confines of the Bill, so too are decisions on the parliamentary scrutiny of those other decisions.

In light of the Government’s commitments to more powerful and enhanced parliamentary scrutiny, and because of the nature of the decisions that we will face by 2014, we do not think that the matters in question should be covered by the Bill. I therefore urge my hon. Friends not to press their amendments to the vote.

European Union Bill

Debate between Bernard Jenkin and David Lidington

Monday 24th January 2011 Commons Chamber

[Mr Jenkin]

I am grateful to my hon. Friend.

I hear the plea of my hon. Friend the Member for Devizes (Claire Perry), but I believe that there is a constant danger of us succumbing to wishful thinking. The problem is that this is not the “thus far and no further” Bill; it is the “locking the stable door after the horse has bolted” Bill. What is more, whatever other horses there may be in the stable, there are sufficient holes in the door for those horses to squeeze through, if it is convenient for the Executive to allow it to happen. That is what we will see with the treaty coming down the track for EU fiscal union. The Bill will not increase the happiness of the British people about our present terms of EU membership. The Bill fails to address those terms, but they will have to be addressed at some stage in the future.

I refuse to sign a referendum pledge, as I was recently asked to do, saying, “Let’s have an in-or-out referendum”. That is not the way to conduct this debate; the way to conduct it is for the Government to set out their national interests and negotiate robustly for them in the European Union, rather than to continue appeasing the system to avoid a row. I even accept that we may need to do that for a period, while we are in such a difficult fiscal position, but the moment that the EU is asking for treaty changes for which it needs our consent is the moment we should be asking for concessions in return. We certainly should not carry on transferring competencies to the EU without a referendum, as is provided for in the Bill.

[Mr Lidington]

We have had a robust debate, and I want to start by thanking all right hon. and hon. Members on both sides of the Committee who have taken part, whether through speeches or the numerous interventions.

I want to start with a point on which there was agreement, certainly on the Government Benches. Wherever people stand within the coalition or the spectrum of opinion on Europe in the Conservative party alone, there is agreement that the European Union has developed with too little democratic control and without adequate consent being given by the British people. Indeed, the Lisbon treaty was the first time that the United Kingdom agreed to, and then ratified, a European Union treaty that was not even included in the general election manifesto of the winning party at the previous election.

My hon. Friends the Members for Daventry (Chris Heaton-Harris), for Grantham and Stamford (Nick Boles) and for Camborne and Redruth (George Eustice) said that we needed to change what the history of the British political world’s handling of European business had done, which is to undermine support for our membership of the European Union and the idea that what British Ministers do in European Union institutions on behalf of the United Kingdom carries democratic consent. We need to restore a sense of confidence among the public in how British Ministers take decisions on Europe on their behalf, and that is what the Bill seeks to do. We want to ensure that the British people are never again denied their say over the transfer of new competences and powers from this country to the institutions of the European Union.

I should say in parenthesis to my hon. Friend the Member for Cheltenham (Martin Horwood) that although the word “transfer” in the explanatory notes is a reasonable use of layman’s language, I am sure that he will have noted that in the Bill itself we use the term “confer”. We talk about exclusive, shared, co-ordinating and supplementing competences, which are precisely the terms used in the European treaties.

However, my hon. Friend was right to say that this Bill should not be our only means of addressing the democratic deficit in the way that European decisions are made. He was right to talk about the importance of strengthening our systems of parliamentary scrutiny. I am looking forward to seeing how the scrutiny Committees in the House of Commons and the House of Lords use the opportunities presented by the new yellow and orange-card system. I know that my hon. Friend the Member for Stone (Mr Cash) has been in regular contact with his counterpart committees in a number of other EU capitals. It is important that that network of contacts between the European Union scrutiny committees in each of the 27 member states continues to develop.

I am sure that my hon. Friend the Member for Cheltenham will also have seen the written ministerial statement that I made to the House last Thursday. Although it dealt primarily with issues concerning justice and home affairs measures, it also stated that the Government now wanted to explore—together with Parliament, and therefore with the two scrutiny Committees in particular—ways in which, right across the piece, we can strengthen scrutiny and accountability to the Houses of Parliament for what we as a Government do in Europe on behalf of this country.

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[Mr Lidington]

We shall have a debate on the ratchet clauses later this week when we deal with amendments to those parts of the Bill. I will be happy to go into more detail then, and I hope the hon. Lady will forgive me if I do not answer her question now.

We are giving Parliament and the public the opportunity to hold Ministers to account by spelling out the criteria needed to make a decision on whether the power or competence is transferred, and requiring Ministers to make a statement giving the reasons for their decision. Parliament can challenge this, and, if it so wishes during the legislative process, add further conditions of its own. If the public are dissatisfied with the Minister’s judgment—I stress it will be the Minister’s judgment, not Parliament’s—they will be able to use judicial review to check it further.

[Mr Jenkin]

Would a member of the public be allowed legal aid for such a challenge?

[Mr Lidington]

My hon. Friend is tempting me to go way beyond the scope of the Bill. At the moment, any legal aid application would be subject to the normal rules that apply to legal aid, which are the responsibility of the Ministry of Justice, and not of the Foreign and Commonwealth Office.

The Bill comprehensively goes through the nuts and bolts of the treaties to identify how power and competence could be shifted from this country to the European Union. We have deliberately and determinedly taken steps to limit the wriggle room for any Government or Minister in this regard. We are committed to ensuring, as best we can, that the Bill is watertight, with no omissions or loopholes that would allow a future Government to avoid giving either Parliament or the people the control that they deserve.

Let me spell out in a little more detail how we plan to achieve this. Following the agreement of any future treaty change under the ordinary revision procedure—that is, the process involving an intergovernmental conference and, probably, since the Lisbon treaty, a convention of the European and national Parliaments as well as of national Governments—three conditions must be fulfilled before the United Kingdom could ratify such a treaty change. First, the Minister must lay a statement before Parliament. That statement would give the Minister’s decision as to whether the proposed treaty change would involve one or more of the criteria in clause 4 of the Bill, and therefore whether a referendum would be required or not. A change that would transfer power or competence from this country to the EU would be subject to a referendum of the British people.

If the proposal were considered by the Minister not to involve one or more of the criteria in clause 4, it would be considered to meet the exemption condition—in other words, it would not require a referendum to be held. The important point is this: the Minister cannot simply conjure his decision out of the air. He has to obey the law. He has to follow the criteria set out in the Bill, especially those in clause 4 and schedule 1. His statement will have to demonstrate how he has applied those criteria in coming to his decision. He will simply not have the scope in law to make some arbitrary decision in defiance of what is spelled out in the legislation.

European Union Bill

Debate between Bernard Jenkin and David Lidington

Tuesday 11th January 2011 Commons Chamber

[Mr Lidington]

Yes, and I shall come on to say a bit more about that in a moment.

[Mr Jenkin]

Clause 18 can be read simply as a historical fact. It does not give continuing force to the sovereignty of Parliament. It states:

“It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law…falls to be recognised and available in law in the United Kingdom.”

That is a historical fact, and can be relegated as no more than that.

[Mr Lidington]

What is different about clause 18 compared with the current legal position is that for the first time it provides a clear statutory point of reference, to which the courts would have to have regard in considering any cases in future that were comparable to that brought before Lord Justice Laws.

The second source of the concern that has been expressed are the various obiter remarks, to which my hon. Friend the Member for Stone and others have referred, made by senior judges such as Lord Hope and Lord Steyn, albeit in cases that did not deal directly with European Union law. My hon. Friend starkly expressed his concern that at least some members of the senior judiciary had an agenda that deliberately set out to challenge the historic privileges and authority of Parliament.

The third source of concern arises from various academic commentators on EU law, ranging from Professor J. D. B. Mitchell back in 1980 to Martin Howe QC in 2009.

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[Mr Lidington]

The hon. Gentleman is pre-empting the next section of my speech in which I want to make it clear what clause 18 does not do. I am not going to try to pretend to the Committee that it seeks to accomplish things that it does not do and is not intended to do.

The clause does not alter the existing relationship between European and UK domestic law, nor does it affect the primacy of EU law—a concept developed by the European Court of Justice well in advance of our membership of the European Community, and to which this Parliament gave effect in UK law as defined under section 2(4) of the European Communities Act 1972. My hon. Friend the Member for Harwich and North Essex was right to say, in quoting Martin Howe, that the clause would not stop the escalator, but that it would stop things getting any worse, as my hon. Friend would describe it, than the current position. It is worth saying that although Mr Howe made that comment about the escalator, he also said:

“In my view Clause 18 as presently drafted is valuable and is almost certainly sufficient to achieve its intended purpose of preventing judicial drift towards the erosion of the doctrine of Parliamentary sovereignty.”

As our judges have recognised to date, Parliament remains free to amend or repeal the 1972 Act, or indeed other Act of Parliament, at any time. But of course the political reality is that if we chose to repeal the 1972 Act or to disapply unilaterally a particular piece of European Union legislation, there would be a serious crisis in terms of this country’s relationship with the European Union. That might be a state of affairs that some hon. Members would wish to bring about and see as an opportunity, but that is not the Government’s aspiration.

Clause 18 will also not alter the rights and obligations assumed by the United Kingdom on becoming a member of the EU, and it will be in line with the practice of other member states such as Germany, whose federal constitutional court ruled in 1993, in the case of Brunner v. European Union, that Community law applies in Germany only because laws passed by the German Parliament say that it does. Similarly, in Denmark the supreme court held in its judgment of 6 April 1998 in the case of Carlsen v. Rasmussen that Community law applies in Denmark only by reason of, and to the extent permitted by, the Danish constitution. Therefore, although they have a different constitutional framework from that of our country, other member states have given effect to EU law through sovereign acts.

I want briefly to deal with two challenges that were made to the Government’s case: Professor Tomkins’s comments about partial legislation being worse than no legislation at all, and why we do not explicitly make this provision an amendment to the 1972 Act. On Professor Tomkins’s argument, we disagree with his conclusion. The Government are clear about the particular mischief that we are seeking to address, which is to put beyond speculation the fact that this country has a dualist system and that the rights and obligations under the EU treaty, in order to be justiciable before our courts, have to be incorporated in our system through an Act of Parliament. It has never been the Government’s intention in bringing forward this legislation to address the broader issues of potential challenge to parliamentary sovereignty over things such as human rights legislation or the impact of the devolution settlements, to which the European Scrutiny Committee drew attention in its reports.

[Mr Jenkin]

The confusion arises in thinking that it is somehow possible to segment European law from domestic law when in fact the European Communities Act itself is domestic law, and the judges who are likely to adjudicate on the sovereignty of Parliament are our own domestic judges. It may well be an adjudication on a European case, or it may well be on another case, but unless the Minister addresses the potential challenge from the Supreme Court on whatever case, particularly under European Community law, he is not addressing the problem.

[Mr Lidington]

My hon. Friend is inviting me to go much further than my Department’s responsibilities. I am very willing to put on record that, contrary to Professor Tomkins’s fears, the Government, in choosing to legislate in this area, have no intention of indicating that other challenges to parliamentary sovereignty are unimportant or insignificant.

Hon. Members have asked why we are not amending the European Communities Act 1972. The principle that we applied is that what is important is what the clause does, rather than where in the statute book it is placed. Although the 1972 Act is the principal statute by which European law is given effect in this country, it can be argued that it is not the only statute that has that effect. Statutes as disparate as the Trade Marks Act 1994, the Chiropractors Act 1994, the Enterprise Act 2002 and the Equality Act 2006 make reference to giving effect to European law. Some provisions of the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 place Ministers from the devolved Administrations under an obligation to act in accordance with European law. That is why we have made reference in the clause to Acts of Parliament in a generic sense, rather than to the 1972 Act in particular.

--- Later in debate ---

[Mr Lidington]

Parliament has the right, which the courts would be obliged to uphold, to repeal or amend the European Communities Act 1972 or any part of it. It also has the constitutional power to disapply a particular piece of EU law, although that would provoke the sort of political crisis in our relations with the EU that I alluded to earlier.

[Mr Jenkin]

I am incredulous about this argument about the word “sovereignty”. Is my right hon. Friend seriously suggesting that if Parliament put into statute the fact that it was sovereign, that would be a come-on to the judges to come and get it? I think if he reflects on that for a short time, he will realise that he has been given a lawyer’s excuse for rejecting the amendment, not a proper reason.

European Union Bill

Debate between Bernard Jenkin and David Lidington

Tuesday 7th December 2010 Commons Chamber

[Mr Lidington]

What I would say to my hon. Friend is that to some extent we are repeating the exchanges that we enjoyed in his Committee yesterday. Clause 18 places firmly on the statute book a point of reference to which any future court that considers an argument about the source of authority for European law in this country must have regard. My hon. Friend the Member for North East Somerset put it in terms of turning the clock back to 1972. As my hon. Friend the Member for Harwich and North Essex said in an intervention, it is not the case that the argument that European law derives its authority solely from Acts of Parliament has gone unchallenged. It was not only in the prosecution arguments in the metric martyrs case, but in the obiter from Lord Justices Steyn and Hope, to which he referred, that a very different case was asserted—namely that, over time, European law has acquired some kind of autonomous authority in this country. Hitherto, the United Kingdom courts have rejected that argument and upheld the doctrine that it is only through Acts of Parliament that European law has authority here. The clause will provide in statute for the first time a clear point of reference to which the courts must have regard.

[Mr Jenkin]

My hon. Friend is dealing carefully with the points that have been raised, but will he treat seriously the evidence given to the European Scrutiny Committee by Professor Tomkins? At the end of his written evidence, he stated:

“If Parliament is of the view that its sovereignty requires to be freshly articulated and safeguarded in legislation, it would be well advised to proceed with great care and caution, lest the consequences of its actions come to be seen as the proverbial red rag to the bull.”

I am not convinced that the clause, as drafted, would not be that red rag.

[Mr Lidington]

We debated this matter at great length in Committee in January. A number of the learned academics who gave evidence to the European Scrutiny Committee discussed parliamentary sovereignty in broad constitutional terms, rather than in terms of the precise objective of clause 18, which is to recapitulate in statutory form the means by which European law is given effect in the United Kingdom.

I want to make it clear from the start that we are talking about a referendum lock on future treaty changes that transfer powers or competence—in particular, powers involving the surrender of vetoes—and that we are not seeking to overturn the terms of existing treaties. I know that that will disappoint a number of Members on both sides of the House, but, as my right hon. Friend the Foreign Secretary said in his opening speech, we are in a legal environment established by the Lisbon treaty, even though some of us might wish that we were not, and we must start from the position that we are now in.