European Union Bill (Programme)(No. 2)
Lindsay Hoyle Excerpts(13 years, 10 months ago)
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Charlie Elphicke
I agree with my hon. Friend. What will we discuss? A wrecking amendment, tabled by the Labour party, which cheated the nation of a referendum in the past.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. If it was a wrecking amendment, it would not have been selected. I remind the hon. Gentleman that amendments are selected with due consideration.
Charlie Elphicke
I defer to you, Mr Deputy Speaker, and apologise for using language that was perhaps too simple. Of course, the amendment could not be a wrecking amendment; it is an amendment that would bring destruction on the Government’s intent and purpose in the Bill. I hope that I remain in order with that description.
I agree with my hon. Friend the Member for Harwich and North Essex (Mr Jenkin), who makes an important point about the time that is needed to discuss the purpose of referendums and whether we should have a national debate—perhaps a referendum?—on whether to hold an in/out referendum. It seems that we will not have time to discuss that today. I hope that, at some point—perhaps not in the Bill, but sometime—the House will be able to discuss that properly.
Mr John Spellar (Warley) (Lab)
On a point of order, Mr Deputy Speaker. Several Members on the Government Benches have referred to proceedings in another place. Page 435 of “Erskine May” clearly states:
“Members are restrained by the Speaker from commenting upon the proceedings of the House of Lords.”
For the guidance, particularly of newer Members on the other side of the House, could you give a ruling on that point?
Mr Deputy Speaker
There should be no criticism of the other House. We can all learn from that.
European Union Bill
Lindsay Hoyle Excerpts(13 years, 10 months ago)
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Mr Wayne David (Caerphilly) (Lab)
I beg to move amendment 85, page 2, line 6, at end add—
‘(7A) References to “the Committee” are to the European Union Referendum Committee as established by section [European Union Referendum Committee] below.’.
The Chairman of Ways and Means (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 86, in clause 2, page 2, line 10, leave out
‘a statement relating to the treaty was’
and insert
‘the treaty and a statement relating to it were’.
Amendment 1, page 2, line 13, leave out ‘or the exemption condition’.
Amendment 92, page 2, line 16, leave out from ‘until’ to end of line 22 and insert
‘the referendum procedure set out in subsection (2A) below has been completed.
‘(2A) The referendum procedure is completed if—
(a) a decision has been taken by either or both Houses of Parliament not to hold a referendum, whether by agreeing with a recommendation from the Committee that a referendum is not required or by disagreeing to a recommendation from the Committee that a referendum is required; or
(b) a referendum has been held throughout the United Kingdom, or where the treaty affects Gibraltar, throughout the United Kingdom and Gibraltar, and a majority of those voting in the referendum are in favour of ratification of the treaty.’.
Amendment 2, page 2, line 23, leave out subsection (3).
Amendment 87, in clause 3, page 2, line 29, leave out
‘a statement relating to the decision was’
and insert
‘the decision and a statement relating to it were’.
Amendment 67, page 2, line 32, leave out paragraph (c).
Amendment 3, page 2, line 32, leave out
‘the exemption condition or the significance condition’.
Amendment 68, page 2, line 34, leave out subsections (2), (3) and (4).
Amendment 93, page 2, line 36, leave out from ‘until’ to end of line 42 and insert
‘the referendum procedure set out in subsection (2A) below has been completed.
‘(2A) The referendum procedure is completed if—
(a) a decision has been taken by either or both Houses of Parliament not to hold a referendum, whether by agreeing with a recommendation from the Committee that a referendum is not required or by disagreeing to a recommendation from the Committee that a referendum is required; or
(b) a referendum has been held throughout the United Kingdom, or where the treaty affects Gibraltar, throughout the United Kingdom and Gibraltar, and a majority of those voting in the referendum are in favour of approval of the decision.’.
Amendment 4, page 2, line 43, leave out subsection (3).
Amendment 5, page 3, line 1, leave out subsection (4).
Amendment 64, page 3, line 3, leave out from ‘4’ to ‘and’ in line 4.
Amendment 65, page 3, line 4, leave out ‘(1)(i) or (j)’ and insert
‘(1)(a), (d), (e), (f), (g), (h) (i), (j), (k), (l) or (m)’.
Amendment 66, page 3, line 4, after ‘(1)’, insert ‘(g), (h)’.
Amendment 88, in clause 4, page 3, line 8, before ‘(1)’ insert—
‘(A1) A treaty or Article 48(6) decision which falls within this section shall be subject to the procedure of determination by the Committee and both Houses of Parliament as to whether a referendum is required’.
Amendment 89, in clause 5, page 4, line 10, leave out
‘the required statement before Parliament’
and insert
‘the treaty and the required statement before the Committee and before Parliament’.
Amendment 90, page 4, line 14, leave out
‘the required statement before Parliament’
and insert
‘the decision and the required statement before the Committee and before Parliament’.
Amendment 7, page 4, line 17, leave out subsections (3) to (5) and insert—
‘(3) The required statement is a statement that there will be a referendum on that treaty.’.
Amendment 91, page 4, line 19, leave out subsections (4) and (5).
Amendment 11, page 4, line 24, at end add—
‘(6) If the Minister’s opinion is that the effect of that provision in relation to the United Kingdom is not significant the Minister must seek Parliamentary approval for his opinion.
(7) Parliamentary approval is given if—
(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves of the Minister’s opinion; and
(b) each House agrees to the motion without amendment.
(8) If the Minister fails to obtain Parliamentary approval for his opinion the significance condition is not met.’.
New clause 9—European Union Referendum Committee
‘(1) There shall be a Committee, to be known as the European Union Referendum Committee, to examine—
(a) any amendment of the Treaty on the European Union or the Treaty on the Functioning of the European Union, whether by simplified or ordinary revision procedure;
(b) any decision already provided for in those treaties, as set out in Schedule 1 to this Act;
(c) any treaty or Article 48(6) decision as defined in section 4 of this Act; and
(d) any decision as set out in section 6(2) or 6(4) of this Act.
(2) The Committee shall report to Parliament in respect of each such treaty amendment or decision as to—
(a) whether it involves a significant transfer of power or competence, and if so
(b) whether it requires a referendum to be held.
(3) When the Committee has reported its view as to whether or not a referendum is required, a Motion shall be moved in each House of Parliament to give effect to that recommendation.
(4) If both Houses agree to recommend a referendum, a referendum shall be held accordingly.
(5) The Committee shall consist of no more than 19 Members, drawn from both Houses of Parliament, none of whom shall be Ministers of the Crown.
(6) The members of the Committee shall be nominated by the Speaker of the House of Commons and the Lord Speaker of the House of Lords respectively, in accordance with the Standing Orders or Resolutions of their respective Houses, and subject to the approval of their respective Houses.
(7) Members of each House shall be members of the Committee until discharged by their House or if they cease to be a Member of that House or if they become a Minister of the Crown.
(8) The Committee shall elect a Chair from among those of its members who sit in the House of Commons.
(9) The Committee may determine its own procedure, which shall be broadly in line with that followed by Joint Committees of the two Houses.’.
Mr David
The week before last, the Committee enjoyed an excellent debate on the sovereignty clause of the Bill. Perhaps surprisingly, there was a high degree of consensus on the need to ensure that Parliament remains central to our democracy. Indeed, it must be said that even the Government appeared to acknowledge that there was at least a genuine debate on whether Parliament owed its sovereignty to common law or whether sovereignty was a fundamental right. Consequently, we look forward to seeing how the Government rewrite the Bill’s explanatory notes to acknowledge that debate.
That makes it all the more surprising that part 1 of the Bill so profoundly departs from the consensus established in the House that Parliament is central to this country’s democratic process. The Government do that by proposing that most extensions of EU competence or power, even relatively small ones, should be subject to a referendum if the change has a material impact on the UK’s relationship with the EU.
The Government set out in the Bill in mind-numbing detail umpteen scenarios when a referendum might be triggered. The Opposition believe that there is a case for referendums to be held on important constitutional issues. For example, in government, we introduced referendums on devolution in Scotland and Wales, and indeed, there will be a further referendum in Wales on 3 March.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)
I am sorry, but having written the constitution and having read the Lisbon treaty, I think that it is sheer sophistry to go on like this. May I just—
The Chairman
Order. We are not dealing with the Lisbon treaty. Can we please stick to the amendments before us?
Mr David
With all due respect to my hon. Friend, it was not she who wrote the treaty or the constitution; she made a contribution, as did many people.
We support a referendum on the alternative vote system, and we believe that a referendum should be held if ever there is a European constitution or if any Government favoured Britain’s joining the single currency. I remind the Committee that Baroness Thatcher declined to hold a referendum on the Single European Act, and that the Foreign Secretary voted against a referendum on the Maastricht treaty when he was in opposition.
European Union Bill
Lindsay Hoyle Excerpts(13 years, 10 months ago)
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Mr William Cash (Stone) (Con)
I beg to move amendment 41, page 11, line 25, at end insert—
‘(1) The sovereignty of the United Kingdom Parliament in relation to EU law is hereby reaffirmed.’.
The Chairman of Ways and Means (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 10, page 11, line 30, at end insert ‘and not by virtue of a common law principle.’.
Amendment 52, page 11, line 30, at end add—
‘(2) The Secretary of State shall prepare an annual report on the extent to which in the previous 12 months the provisions of subsection (1) have been challenged or questioned in the courts, including the European Court of Justice, identifying any challenge to the declaration contained in that subsection that the status of EU law is dependent on the continuing statutory basis provided by the European Communities Act 1972.
(3) The report made under subsection (2) shall be laid before Parliament for its approval.’.
Clause 18 stand part.
New clause 1—Parliamentary sovereignty—
‘Section 3(1) of the European Communities Act 1972 shall not extend to the construction or interpretation by the courts of the United Kingdom as to the nature or legal effect of parliamentary sovereignty and section 3 shall be amended accordingly.’.
New clause 4—Saving for existing law—
‘Nothing in Part 3 adversely affects or shall be construed as affecting the existing constitutional law of the sovereignty of Parliament in relation to EU law.’.
Mr Cash
The group relates specifically to clause 18, and I shall explain a little of the amendments’ purpose.
Amendment 41 would insert at the beginning of the clause, which covers the status of EU law, the simple words:
“The sovereignty of the United Kingdom Parliament is hereby reaffirmed.”
Amendment 10 would add to the end of the clause the simple phrase,
“and not by virtue of a common law principle”.
The effect of that would be to prevent the courts from applying a common law principle, which has become entrenched in certain thinking in influential academic and legal circles, and in the Supreme Court. The explanatory notes suggest that it has also become entrenched in the Government’s thinking.
I understand that the explanatory notes may be in the course of being corrected, as the European Scrutiny Committee and one of its main witnesses suggested. However, precisely what effect that will have remains to be seen. Perhaps we can debate that this afternoon. After all, the explanatory notes may have been prepared to aid interpretation of the statute—statute law is open to interpretation by the courts—but will the removal of the relevant words necessarily have the effect of preventing those most distinguished and eminent Supreme Court judges from departing from principles and doctrines to which they have apparently become wedded?
The two new clauses are directly relevant to clause 18 to ensure parliamentary sovereignty in view of the continuing trend towards judicial interpretation along the lines that I have already expressed. It is a matter of grave concern to many of us—far more than may turn up in the Lobbies today—that the courts, on a range of matters, have accumulated greater and greater influence, and, indeed, action, in relation to their judgments on Acts of Parliament. I refer not merely to interpretation or construction of the words but the underlying judicial activism, sometimes of a quasi-political nature. That has caused a great deal of concern, which has arisen particularly in the case of the Human Rights Act 1998. Although we are not discussing that today, there is an analogy because the charter of fundamental rights, which mirrors the Human Rights Act, is part and parcel of the arrangements under the Lisbon treaty. In that area of law, if there were any inconsistency between legislation—many centuries old and based on well established democratic principles—passed in this Westminster Parliament, would the judiciary presume to make judgments about the nature or legal effects of parliamentary sovereignty?
Geraint Davies (Swansea West) (Lab/Co-op)
How does the hon. Gentleman reconcile his call for sovereignty of the House with the fact that, on 1 January, we saw established the European Securities and Markets Authority in Paris, the European Banking Authority in London, the European Insurance and Occupational Pensions Authority in Frankfurt and the European Systemic Risk Board, all of which trump national organisations such as the Financial Services Authority and the Bank of England? Is this not an unreal debate? This is happening now and is constraining our action, and none of these amendments will make any difference to the fact of those constraints.
The Chairman
Order. It would help if the hon. Gentleman could try to shorten his interventions.
The Temporary Chair (Mr Roger Gale)
Order. I hold to the strong belief that if I wait long enough we shall return to clause 18.
Mr Jones
My mind has been set off with thoughts of my right hon. Friend the Member for Rotherham (Mr MacShane) doing various things with dead parrots, but I shall try to resist any temptation to go down that route.
The European Scrutiny Committee was clear about clause 18:
“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 are gravely concerned that for political reasons it has been portrayed by the Government as a sovereignty clause in correspondence and also in the Explanatory Notes”.
I would be concerned if, because of what has been said tonight, the explanatory notes are amended during the Bill’s passage, because that might mean we do not have proper explanatory notes, and it might have an impact on our being able to scrutinise the Bill thoroughly.
The Committee also states that the Foreign Secretary was so confident of this clause that he would not appear before the Committee. I think that is wrong. To ensure that the Executive are properly scrutinised, Cabinet Ministers should appear before any Select Committee or inquiry that invites them to do so, and I cannot understand why he chose not to do so on this occasion.
European Union Bill
Lindsay Hoyle Excerpts(13 years, 11 months ago)
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Mr MacShane
On a point of order, Mr Deputy Speaker. The hon. Lady is still very young.
Mr Deputy Speaker (Mr Lindsay Hoyle)
I think we can rule that point of order out of order.
Laura Sandys
I thank the right hon. Gentleman for his very kind words.
The Lisbon treaty was a real break in trust. Big constitutional changes need to go to the public. I used to be chairman of openDemocracy. I believe that we should trust the people and that we need to ensure that the people are part of the big, fundamental decisions. I disagree with many Opposition Members—
Mr Bernard Jenkin (Harwich and North Essex) (Con)
As far as the term “business as usual” is concerned, I must ruefully reflect that it is business as usual in this House, as we are again discussing this interminable topic. It has occupied many thousands of hours of discussion since I was elected in 1992, and many thousands more before that. It is perhaps amusing and depressing to see how little some things change while the pace of European integration seems uninterrupted by whatever votes take place, whatever arguments occur and whatever crises erupt. The present crisis over the governance of the euro is a case in point. The architects of the Maastricht treaty, far from accepting that they have been proved wrong by events, are seizing on the chaos to strengthen the hold of the centre over the rest of Europe, accelerating the pace of integration as a result.
I am bound to ask, as should we all, whether the scene that we observe in the Chamber today was really what my right hon. Friend the Foreign Secretary envisaged when he came up with the brilliant idea of a referendum lock at the Conservative conference in 2009. At that time, I think what he saw looming was the imminence of the ratification of the Lisbon treaty, and the difficulty of holding a referendum on a treaty that had already been ratified. He was looking for something to throw to the crowd, and his idea got a wonderful round of applause at the conference. Little can he have imagined, however, that that simple promise would give rise to a Bill of such byzantine complexity. It has not been universally welcomed in the Chamber, although, knowing the way in which this place works, I suspect that it will find its way into Committee. No one, with the exception of a few aficionados, can have imagined what a mess the future Government were getting themselves into by making such an apparently simple pledge. As recently as 1 November, the Prime Minister told the House:
“I would grant a referendum if there were any proposed transfer of powers from Westminster to Brussels.”—[Official Report, 1 November 2010; Vol. 517, c. 625.]
My hon. Friend the Member for Hertsmere (Mr Clappison) made an illuminating speech, pointing out that certain transfers of power are not included in the Bill. The reason why they are not included is either that the Government have already made those transfers and do not want to admit that they should have been made more accountable to this House, or that they intend to make further transfers and do not want to get caught up in the potential for litigation. I would be grateful if my hon. Friend the Minister for Europe made it clear in his summing-up speech when he expects the provisions to come into force. My understanding is that whatever is in this Bill is not intended to apply to this Parliament, but to the next one. I see the Minister nodding. It would be a bit embarrassing to legislate for the next Parliament and create a trap for a future Government that the current Government would not accept for their own behaviour. I guess that that is why these lacunas exist.
The crunch is that it all depends on what is meant by power. A child can have power over its parent, even though it does not have any sovereign or legislative authority. Power has a fluid quality to it: it cannot be held; it travels to people with influence. Power is clearly leeching away from our kingdom and this House, even though I believe that this House remains absolutely sovereign. The fact of power, where it is exercised, and the constraints that it makes people feel when it is exercised, is clearly having an effect.
Two simple tests can be applied to the Bill. The Foreign Secretary himself says that the Lisbon settlement lacks democratic legitimacy, so we should ask ourselves whether this Bill adds to the democratic legitimacy of the settlement between the United Kingdom and the European Union. The answer is that it does not affect it. It affects what might happen in future—we can argue about that, and some argue that it might have a greater effect than expected and that the courts might have to decide how much effect it will have—but it does not constitute a lock, as my hon. Friend the Member for Clacton (Mr Carswell) pointed out, because no Parliament can bind its successor. Whatever is in the Bill can be amended or repealed by a future Parliament. It is not really a lock, but it does not affect anything that has gone before.
The sovereignty clause provides another case in point. In fact, despite the Government’s repeated reference to it as such, it is not a sovereignty cause. It does not contain the word “sovereignty” or “sovereign” and it does not use the words “supremacy” or “primacy”. It merely provides an historical account of what happened—that there was an Act of Parliament, which is how the European Union’s laws apply in this kingdom. It has no effect whatever.
Let me cite the evidence given to the European Scrutiny Committee. Professor Adam Tomkins gave advice that was accepted by the all-party Select Committee. He said:
“Neither clause 18 nor any other provision in the Bill safeguards the United Kingdom from the further development of EU law by the ECJ.”
Now the ECJ, that really is power! How is this House going to regulate the power of the European Court to expand competence and reinterpret the competences of the European Union as it has done down the ages? Well, of course, it cannot. I was touched by the faith in the Bill expressed by my right hon. Friend the Member for Charnwood (Mr Dorrell), but as Professor Tomkins also said on the limitations of clause 18:
“If this is the attempt by the UK Parliament to reassert or reclaim some kind of sovereignty in the face of the European competence creep, it ‘don’t do what it says on the tin.’”
I am afraid that the Minister has to face that.
In my last minute or two, let me move on to the second test of the Bill. Is it really in the national interest; does it address the national interest? I would regard the Bill as almost wholly irrelevant to the national interest. The hon. Member for Ilford South (Mike Gapes) pointed out that we should be talking about the rise of China and how we are going to do business with India. We really are contemplating our navels as we discuss this Bill. As the recent Public Administration Committee report says, what we need is a reassessment of our national interest with regard to our membership of the European Union. I do not advocate an “in or out” referendum, but I think that we need to start reassessing whether our current terms of membership are in our national interest and then to start working out how we should alter them to reflect our national interest.
The problem with this Bill is that it neither addresses the democratic legitimacy—or the lack of it—in the current settlement, nor stops the flow of power to the European Union. As we are talking about democratic legitimacy, I should say that that flow takes power away from democracies and gives it to something else, because whatever the European Union is, it ain’t a democracy. The Bill fails to address our national interests and it reflects the muddle that the Government have got themselves into because, as we have heard, the prime purpose of this Bill is political; it was designed to appease sentiment in the absence of a referendum on all the treaties where we should have had referendums: the Maastricht, Nice and Amsterdam treaties, as well as the Lisbon treaty. The Bill will fail to reassure people and will fail to address the increasing disconnect that people feel, not from the European Union, but from the governance of their own country by their own democratically elected representatives. Dealing with that is the real challenge that we face, because that is about despair about us in this place.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Before I call the next speaker, may I say that I am trying to get 11 Members in and I presume that the Front-Bench spokespeople will want 15 minutes each? We can work the sums out for ourselves, but I ask for a little haste and for hon. Members not to take as much time.