Justice and Home Affairs Opt-out

Debate between Lord Beith and Jacob Rees-Mogg

Monday 7th April 2014 Commons Chamber

[Jacob Rees-Mogg]

If we opt into any of these measures and they are justiciable by the European Court of Justice, we are, through that act itself, ceding sovereignty to the European Union, because it is part of building up a single state.

What does a state have that makes it a state? What is the essence of a state? At least one important part is the ability to control law and order. We are opting back into the things that are most clearly creating the powers of a federal state of the united states of Europe—a single state that is the European Union. That will mean that we are no longer a member of an international organisation like any other, such as the United Nations or NATO, from which it would be easy to withdraw, should we wish, although I am not suggesting for a moment that we do so.

Of the 35 areas that we are asking to opt back into, three illustrate the fundamental importance of the sovereignty issue. The first of those is the European arrest warrant. The decision over who can arrest a nation state’s citizens must be an essential right of that nation state in determining this exceptional power that it gives to its police officers. In our case, the power that constables who hold the Queen’s warrant have to restrict somebody’s freedom comes directly from the Crown as part of the expression of the power of the state. To decide that an arrest can be determined abroad without any of the necessary British legal procedures involved is a move very firmly towards a federal state. Crucially, the question of who is or is not arrested will no longer be determined by a British court but by the European Court of Justice, over which we have no absolute control. We may have one justice there, but it is not a court to which we send ambassadors; it is a court that is independent in its exercise of European law as opposed to British law.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

The hon. Gentleman has fallen into uncharacteristically misleading language. Over what court does he think we do have control? We send to the European Court of Justice judges just like those we have in our own courts, and we do not purport to control them from this House.

[Jacob Rees-Mogg]

My right hon. Friend is fully aware that Parliament can overrule any court in this country by an Act of Parliament. That is how our constitution works; it is the absolute essence of our constitution and our democracy. He, of all people, must know that. We have in this House, and together with the House of Lords, the ability to change the law if there has been a judgment that is alien to our understanding of how the law should be enforced. That is simply not the case as regards the European Court of Justice. It is a court that is outside the control not of Parliament but of the people of the United Kingdom, whose rights are being given up. The arrest warrant would be handed over as part of the creation of a state.

Tied in with this is Europol. Europol, in its current form, is limited, but once we have signed up to this measure, its development will be subject to the qualified majority vote. Europol exists to provide support and assistance to member states in the fight against organised crime and drug trafficking. What are we doing in this regard? Are we setting up the very beginnings of a federal bureau of investigation? Are we starting to say that we will have a police force in Europe with a power that goes across national borders? Are we therefore saying that British subjects may be subject to a law that this country has not agreed to—indeed, we may even vote against it—and that has emanated from a judicial system that is not controlled by the democratic will of the British people?

That ties in with Eurojust, which is about creating mutual legal assistance to aid investigations and prosecutions and how judicial action in a cross-border case should take place. What is happening? We are creating an arrest warrant, the beginnings of a European police force and Eurojust, which will allow co-operation in a judicial and prosecutorial capacity. That is not a million miles away from creating a European public prosecutor, which for some reason is singled out as the one thing that is a bridge too far and that we must never have without a referendum, but everything that is being put in place makes that the next logical step. If we do this, it would be no surprise if a future Government said, “We have the arrest warrant, Europol and Eurojust, so surely we don’t need a referendum to have a public prosecutor, because that is the next thing we should do.” This is further evidence of the creation of a European federal state.

The argument in favour of this measure is that it will help ensure that criminals get caught. Everyone is in favour of that: of course we want criminals to be brought to justice. Is there not, however, an ancient view of British justice that it is better for 100 guilty men to go free—I say “men” deliberately, because women very rarely commit crimes that get them sent to prison, much less so than men, and I do not want to upset any hon. Ladies—than for one innocent man to go to prison? That seems to be at the essence of our understanding of justice. This is about risking our belief in justice for the convenience of the Administration.

Is it not that the worst argument of all that their noble lordships have produced a report saying that public officials are too idle to do their jobs properly for us to have a system of bilateral negotiations? I know that our public officials are among the greatest and hardest working people in the land. When one sees them arrayed in front of us, one knows that they would be willing to burn the midnight oil and act in the nation’s interest to ensure that we have those bilateral agreements. Although it has not yet been done, there is nothing in European law to prevent a member state from having an agreement with the body of the European Union. The European Commission does not want that to happen, but that is a very different question from whether or not it is legal. It could easily be done by a relatively simple treaty change, if it is not provided for in the current treaties.

Succession to the Crown Bill

Debate between Lord Beith and Jacob Rees-Mogg

Monday 28th January 2013 Commons Chamber

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

May I ask the hon. Gentleman about what seems to be at least a technical defect in the new clause? If the sovereign decides not to declare to the Privy Council that he or she is a Catholic, the procedure for ensuring that there is a Protestant supreme governor of the Church of England is not activated or brought into force.

[Jacob Rees-Mogg]

That is a fantastically late 17th century point. The language of coronation oaths of the late 17th century shows that people are obsessed by Jesuit dissemblers and believe that a sovereign who wants to get around the oath will come to the throne—he could have his fingers crossed behind his back or, even worse, a dispensation from the Pope saying that he is allowed to say that he is a good, honest Protestant when he is not. A sovereign is not likely to behave in that type of Jesuitical dissembling way. Our sovereigns tend to be good, upright and honest sovereigns rather than sovereigns who deceive us as to their religion. That is likely to remain the case.

I have dealt with new clause 1, and should like briefly to deal with amendments 1 and 2, which I tabled. The amendments are in honour of Henry IV of Navarre—not our Henry IV but the French Henry IV. He is supposed to have said—historians argue over this, as they argue over anything—that Paris is worth a mass. On Second Reading, my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), and the hon. Members for Rhondda (Chris Bryant) and for Cardiff West (Kevin Brennan), among others, discussed when somebody was deemed to be in communion with Rome for the purposes of the Act of Settlement and whether somebody would be excluded if they said, on becoming sovereign, “No, I’m not a Catholic,” when they had been christened or taken first communion as a Catholic.

Amendment 1 would make it clear that such a person would not be excluded at that point. It is separate from new clause 1 and has a different effect, but the clarification depends on allowing marriage to a Catholic. That is to say, as I said last week, that the canon law of the Catholic Church requires a party to a mixed marriage to use his or her best efforts to bring up a child of that marriage in the Catholic religion. If a party to a mixed marriage with an heir to the throne followed his or her Catholic requirement, the child would be excluded under a straight reading of the Act of Settlement, which I do not think is the intention of the Bill.

--- Later in debate ---

[Jacob Rees-Mogg]

That is perfectly possible, but at what point would we know that that was the case? It seems to me that it is very important that we know who our sovereign is. We do not want to go through the courts to try to establish whether the child was brought up as a Catholic and was therefore in communion with Rome and excluded under the provisions of the Act of Settlement.

My amendments do not seek to change the requirement for the sovereign to be in communion with the Church of England. They are separate from the new clause, but simply state that a child brought up as a Catholic would not be deemed

“for ever incapable of succeeding to the Crown”,

which is the language used in the Act of Settlement about Catholics succeeding to the Crown. The question of eligibility could be clarified at the point of succession.

[Sir Alan Beith]

Does not the hon. Gentleman’s amendment address a situation that has arisen in other Protestant monarchies of northern Europe in which someone who had been brought up a Catholic decided to convert to being a Protestant when joining the royal family? Does it not look as if the wording of the Act of Settlement makes a once-and-for-all decision as soon as any kind of commitment is registered and should we not be clear that someone is free to make a choice at a later stage in their life?

[Jacob Rees-Mogg]

I am in complete agreement with my right hon. Friend. The Act of Settlement deems somebody who has been a Catholic for a minute to be dead in terms of the succession, and it passes over them as if they were dead. Once we allow the marriage of a Catholic into the line of succession to the throne, that provision makes absolutely no sense. We could be arguing that at the point of a Catholic baptism, the child was a Catholic even though it had given no personal agreement to its religion and should be disbarred from the throne.

[Jacob Rees-Mogg]

The hon. Gentleman is right that a child who decided to be confirmed as a Catholic would be excluded, but it is perfectly possible, not least because our Churches are coming closer together, for somebody to be confirmed a Catholic at the age of 12 or 13 but to decide on finding at the age of 23 that the throne was about to be offered to him that he might prefer to be an Anglican. We need to be clear about when people are excluded, so that if an heir to the throne decided that the religious bar meant that becoming King of England was worth changing religion for, the result would be clear and decisive. We do not want the monarchy to pass from one generation to the next only for us to have to go to court to work out who our sovereign will be based on the wording of a 1701 Act of Parliament.

[Sir Alan Beith]

The hon. Gentleman posits a situation in which someone gives up his Catholic faith for the Crown, but he must surely be aware that in mixed marriages it is not at all uncommon for children to experience aspects of both denominations and, at some point in their life, to make a choice that might debar them from the throne.

[Jacob Rees-Mogg]

Once again, I am in entire agreement with my right hon. Friend. It is important that the decision is made at the point of succession so that that flexibility is allowed. In ordinary family life in some mixed marriages, couples go to an Anglican service one week and a Catholic service the next.

Succession to the Crown Bill

Debate between Lord Beith and Jacob Rees-Mogg

Tuesday 22nd January 2013 Commons Chamber

[Jacob Rees-Mogg]

The hon. Gentleman is making a similar point to mine, which is that there has been a failure to consider the detail of the Bill. Trying to add two further clauses to the major provision that everyone was interested in has created confusion.

[Sir Alan Beith]

Is it not unreasonable, however, to ask a Roman Catholic to become the Supreme Governor of the Church of England—the hon. Gentleman obviously recognises that, given his suggestion of a regency—or to conform to the Presbyterian Church when in Scotland?

[Jacob Rees-Mogg]

I agree with my right hon. Friend. It would be perfectly reasonable to leave the law of the land as it is, or to make provision for a regency, which would address the problem. Under the Regency Act 1937, the regent would be required to be a Protestant and would therefore be able to carry out the functions of Supreme Governor of the Church of England for a period when the Crown was being held by a Catholic.

Again, however, there are issues with the detail. I raised with the Minister the issue of Counsellors of State. Who is eligible to be a Counsellor of State is set out in the Regency Act 1937. It is usually the closest members of the sovereign’s family, including people who are not of the blood royal, so this includes the late Queen Elizabeth, the Queen mother and the Duke of Edinburgh: they both were or are eligible to be Counsellors of State. Once a Catholic is allowed to marry an heir to the throne, it is perfectly possible for the two Counsellors of State—they always act in pairs—to be Catholics. During a brief incapacity of the Crown or during the Crown’s absence abroad, appointments in the Church of England would have to be made by Roman Catholics, which is a felony under the Catholic Emancipation Act 1829. It seems to me that Her Majesty’s Government are simply not aware of the detail of our constitutional settlement, and have pushed this clause through without considering the detailed ramifications.

The bit of the Bill for which I have the most sympathy is the clause abolishing the Royal Marriages Act 1772. I intervened earlier to cite a quotation from it that makes it the most nonsensical Act on the statute book since the marriage of Princess Alexandra, as she then was, to the then Prince of Wales. Princess Alexandra and her descendants were exempt under the section I read out earlier to the effect that royal princesses who married foreigners and their heirs were exempted from the Act. The marriage of Princess Louisa, the daughter of George II, exempted her line, and through Princess Alexandra our current Queen and all the members of her family are exempted. This Act of Parliament has only affected people for whom it did not really matter who they married and it has not affected the people for whom it did matter who they married.

It seems slightly eccentric to update this Act in a more aggressive form than the one currently on the statute book. As my hon. Friend the Member for Tamworth (Christopher Pincher) said, the ability to get an exclusion from Parliament at the age of 25 has been removed, so more onerous legislation has resulted, taking people out of the line of succession rather than simply invalidating the marriage. Provisions have been put in place that are harsher than those of an Act that was completely ineffective against those with whom it was supposed to deal.

I am not going to vote against Second Reading. I am not going to try to cause a Division against the serried ranks of the establishment. Her Majesty’s loyal Opposition and Her Majesty’s Government line up their forces to push through a Bill of political correctness—not gone mad, but simply not thought through. I wish that when we considered, debated and changed our constitution, we did it with plenty of time, thoughtfulness and detail.

Pretty much every speech we have heard today has raised an issue that should have been thought about, but has been ignored. Why has it been rushed through? Because it is convenient. Once the two Front-Bench teams are in agreement, the days of the week could be renamed if they felt like doing it. There is nothing so silly as cannot be done by them jointly. That, I am afraid, is what we find with this Bill. Let us hope that when we come to Report—or more likely, perhaps, in the other place—the technicalities and the detail can be gone through, so that we do not find that the Duke of Lancaster ends up being one person and the sovereign another; so that we do not find that the Church of England is accidentally being run for a week by a couple of Papists who happen to be Counsellors of State; so that we do not find that an onerous charge is put on royal marriages so that the royals cannot marry when they want—or, indeed, so that the more junior members of the royal family cannot marry at all because if they are not subject to the Royal Marriages Act 1772, they are excluded from ordinary marriage legislation, so how are they going to get married? I really think that it is time to have a look at the detail.

Succession to the Crown Bill

Debate between Lord Beith and Jacob Rees-Mogg

Tuesday 22nd January 2013 Commons Chamber

[Sir Alan Beith]

The two versions of Christianity live side by side remarkably happily in the Western Isles.

The purpose of the Bill is not to change the Protestant succession, as the Minister has made clear. If it were, we would have to spend a lot longer on it considering many more detailed and complicated clauses, and there would be many more concerns to deal with. Nor will it disestablish the Church of England—it retains the monarch’s position as Supreme Governor of the Church of England—or change the situation in Scotland, where the monarch will continue to be expected to be a loyal supporter of the Church of Scotland and its work, as the Queen notably is, while having good relations with the other religious communities in Scotland.

The problem that arises is the one that I refer to as the early age problem. A decision to bring up a child of such a marriage as a Roman Catholic, whether taken entirely voluntarily or under the provisions of some Roman Catholic law, would result in that child being debarred from taking up the Crown unless they renounced the faith in which they had been brought up. That is perfectly possible, as was mentioned earlier, but it is quite a limitation to place upon a child.

[Jacob Rees-Mogg]

The Act of Settlement mentions

“all and every Person and Persons that then were or afterwards should be reconciled to or shall hold Communion with the See or Church of Rome”,

so if a child were baptised a Catholic, I do not think there would be any subsequent opportunity for them to abandon Catholicism. The decision would be that of their parents at the time of their birth.

[Sir Alan Beith]

That is an interesting argument but I am not persuaded by it in the first instance. It seems to me that it has always been possible for a person to renounce the religion in which they were brought up. It had not previously occurred to me that the way in which we currently define the position would invalidate such a renunciation as removing a barrier to taking up the Crown.

Succession to the Crown Bill (Allocation of Time)

Debate between Lord Beith and Jacob Rees-Mogg

Tuesday 22nd January 2013 Commons Chamber

[Jacob Rees-Mogg]

I am extremely grateful to my hon. Friend because that is the crux of my view. Let us suppose that we were to make no change. We live with the great history of this nation day by day, and it is a history that I am proud of and love; when we change it, we have to think carefully about the words we use. We have to think about the great offence given to Her Majesty’s loyal Catholic subjects by going back to the language of the Act of Settlement with a minor amendment.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

If the House were to require more time, it would be to absorb the shock of the hon. Gentleman turning from so eloquent a proponent of things as they are to someone who wants to remove, at one stroke, the Act of Settlement, the Act of Union and the Glorious Revolution of 1688. What has turned him from a man of conservative instincts to a radical firebrand in such a short time?