European Union (Amendment) Act 2008
William Cash Excerpts(15 years ago)
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Mr Lidington
I had better invite the hon. Gentleman to read the Hansard record of the debates on the European Union Bill in which he took part—both in Committee and on Report. If he does read them, he will see that the Government introduced an amendment precisely to make explicit the requirement for this proposed treaty change to be subject to more rigorous parliamentary scrutiny than would have been permitted if the current statutory procedures under the Constitutional Reform and Governance Act 2010 had been allowed to stand and to suffice. I hope that he was not asleep when we debated that amendment. If he examines Hansard, he will find that we have covered that point in some detail.
The previous Government left the country with a system of control that was grossly inadequate. Section 6 of the European Union (Amendment) Act 2008 requires that when a draft decision under the simplified revision procedure—under article 48(6) of the treaty on European Union—is proposed, a Minister must introduce a motion and have it passed by both Houses without amendment before the Prime Minister can signal his agreement to its adoption at a subsequent European Council. That is the point in the decision-making process that we have reached tonight.
There is an option, under the 2008 Act, for the Government of the day to insert a disapplication provision into this type of motion. Such a provision would enable the Government to agree to subsequent amendments to the draft decision to amend the treaty without having to come back to the House for approval. The options were put before me by my officials and I was absolutely clear from the moment I read the papers that to introduce a disapplication provision of that kind would be completely unacceptable and would give Parliament absurdly little control over such an important matter. For that reason, there is no such provision in the motion.
Let me make it clear: if the House approves the motion, it is authorising the Prime Minister to agree to this draft decision—this text alone—at the European Council. Should there be any suggestion of amending the draft decision at the European Council—there is no such suggestion from any quarter at present—the Prime Minister could not legally agree to it at the European Council without first coming back to this House and the other place for additional approval after a further debate. The draft decision that is referred to in the motion will be the version that is agreed at the Council and there can be no other version of the treaty change without the further approval of the House in a debate such as this.
The European Scrutiny Committee has rightly assessed the draft decision as politically important and has recommended it for debate on the Floor of the House. We are scrutinising the draft decision, as the Committee has requested, and debating whether the Prime Minister may signal his support for its adoption at the Council on 24 and 25 March.
Mr William Cash (Stone) (Con)
My right hon. Friend is going through all the procedures and the technical side of things, but, as he knows, that is not really what the treaty is about. I hope he will agree that it represents a huge change in the relationship between the United Kingdom and the European Union. Anyone who cares to look back at what those of us who have argued this case before have said, and to look in particular at The Economist this week, will know that the treaty is a hybrid one that is being devised, driven and pressed forward by Germany and those countries that wish to acquiesce in Germany’s dictated terms. Does he agree?
Mr Lidington
No, I am afraid I do not agree with my hon. Friend on that point. As I have said, it is in the interests of the United Kingdom for there to be stability in the eurozone. To some extent, the measures that the eurozone countries are now taking are a response to the kind of critique that he and other Members of this House made 10 or 11 years ago when the euro was first created. They—I was very much in this camp—argued that it would cause huge difficulties to create a currency union involving a single interest rate and single monetary policy that did not have some way of reconciling very different rates of growth, inflation and unemployment in the countries in that single currency area.
I want to finish on the procedural points and then move on to the content. If the draft decision is adopted by the European Council, all 27 member states will have to approve the treaty change and ratify it in accordance with their respective constitutional requirements before the decision enters into force. The treaty amendment cannot come into effect until we—and everybody else—ratify the adopted decision.
My right hon. Friend the Foreign Secretary and I have already given an assurance at this Dispatch Box that this and every other future treaty change will be considered in accordance with the terms of the European Union Bill, once that enters into force. That Bill will require Ministers to lay a statement before Parliament within two months of the commencement of part 1 of the Bill, explaining whether the treaty change would fall within clause 4 of the Bill—namely, whether it would involve a transfer of competence or power from the United Kingdom to the European Union.
The treaty change will then have to be ratified by primary legislation—a full Act of Parliament—before the United Kingdom is able to say formally that it has completed the ratification process, so even when we get to that stage, the final version, agreed by all 27 Heads of Government, has to come back to Parliament for ratification and will be debated in all the stages of primary legislation. Tonight is therefore not the only opportunity that my hon. Friends will have to debate the measure.
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.
Mr Cash
As my right hon. Friend will know, according to Reuters and many other news agencies Portugal is on the brink of needing a bail-out because its economy is imploding. Does he accept that, as this debate continues, we will be exposed under the EFSM to the tune of up to whatever is the proportion that we should contribute under the proposals until 2013, and that we should have insisted that that was repealed and revoked when the other arrangement was entered into? That is the concession that we should have got, and the Government did not even seek to achieve it.
Mr Lidington
We inherited from our predecessors a legislative measure that was brought in under an existing competence and treaty base and that was, from that time, legally binding. My hon. Friend will understand that I am not going to be drawn into speculating about the position of other individual member states. My understanding, on the basis of the most recent information that I have, is that no other member state has been asking the EU authorities for additional financial help.
As the Prime Minister has made clear many times in this House, securing a tight and disciplined budget for the future is the highest priority for the European Union. At the last European Council meeting, Britain led an alliance of member states to unprecedented success in limiting the 2011 EU budget increase to 2.91%—a very marked improvement on our predecessors’ performance in the previous year. Crucially, in moving forwards, working alongside key partners such as France, Germany, Netherlands and Finland, we are committed to a real-terms freeze in the EU budget in the new perspective, which we expect to run from 2014 to 2020, and we have written collectively to the President of the European Commission setting out our position.
Mr William Cash (Stone) (Con)
The essence of this debate is not just the technicalities, which we heard about at great length from the Minister, but something far more fundamental—the political landscape of Europe. The Minister knows it and the Foreign Office knows it. To give an example, there was a massive row between Nicolas Sarkozy and Mr Kenny about the terms of European economic governance only a few days ago. Furthermore, as was said this week in The Economist:
“Mrs Merkel has struck a Faustian bargain with France’s Nicolas Sarkozy.”
He knows that France is losing influence, and as one senior EU official commented:
“France needs Germany to disguise its weakness, and Germany needs France to disguise its strength”.
The fact is that we have the strength to prevent this hybrid treaty arrangement, which presents Germany with a predominant role. We have great sympathy for Germany’s predicament, given that it contributes so much to the European Union and is having to pay out so much. I have fairly regular meetings with German politicians, who tell me that if their country had the opportunity, it would almost certainly go back to the Deutschmark. There is a serious crisis in Europe, but the response is about the nature of a treaty, something in which this Government are acquiescing—it is not far short of appeasement.
The plain fact is that this is a serious moment for the future of Europe. This is a new, unprecedented situation, and it is accompanied by other proposals, which, as I understand it, will also be considered on 24 and 25 March, namely the proposals for the euro pact, which has otherwise been known as the competitiveness pact. However, nobody really knows exactly what the ingredients of it are, any more than they knew about the ingredients of the proposal that we are discussing this evening in its earlier stages. Indeed, I had to use an urgent question to extract from the Government the fact that it was even being made. That is the manner in which Europe works: by secrecy and behind closed doors. Indeed, there are already signs of committees meeting, and we are discovering—through leaks and otherwise—the manner in which they are going forward.
One element in all this is that, as my hon. Friends have rightly said, it would have to be determined by unanimity, so we would have the leverage to stop this juggernaut moving forward. I described it the other day as being like an aircraft carrier in comparison with a rowing boat, but we in Britain will not be regarded as a rowing boat by any means. If such arrangements were being made co-operatively by a voluntary association of nation states, I would be the first to say, “This is fine”, but they are not. They are being dealt with in the context of a legal treaty. We are parties to it, which is why clause 4 of the European Union Bill is such a disgrace. I say this with great respect for my right hon. Friend the Minister, but he talks about how we would be under no legal obligation and how there would be no transfer of powers or competences, but that is not the issue. The issue is whether the United Kingdom is affected. That is the point that I put to the Prime Minister repeatedly, and he cannot answer it. The fact is that the arrangements in question do affect the United Kingdom. They are matters of foreign policy; they are not just constitutional questions relating to sovereignty, competence and powers.
Martin Horwood
I hope that the hon. Gentleman appreciates that I am missing the Cheltenham festival to be in Parliament this week, which I do not mention flippantly. The festival is enormously important to my constituency economically, and it depends enormously on Irish euros to make it succeed. If in the long run the outcome of the stability mechanism adds some discipline and rigour to eurozone economies such as Ireland, can he not see that that would be of enormous benefit to the festival, to Cheltenham and to the whole of the UK, and should we not do everything in our power to facilitate it?
Mr Cash
I was one of the first—in fact, I think I suggested that we should help Ireland through the bilateral Bill that we eventually produced. However, the Irish are now being put under pressure, at the dictation of Germany in particular, to reduce their corporation tax. That will not do much for the Cheltenham gold cup.
There is a serious problem, because the Government are effectively obscuring the nature of this measure by giving the impression that it is all about institutions. It is about realpolitik. In the days of Bismarck, the German states were brought together in a customs union. That was done for understandable reasons; I do not want that to be misunderstood. However, there is now a problem for Europe. Our problem is that, in the 43 minutes that the Minister spent addressing the House, he did not deal with the politics of this matter at all. That is most unfortunate. In every serious commentary on this issue, including those in the Financial Times, the real question is whether Germany is becoming increasingly predominant, and whether that is intentional or whether it is happening by accident and Germany is making the most of it.
Germany is making the most of the financial crisis to get a greater degree of political control, and the question of whether we can influence that by entering into an arrangement of this kind—which affects us even though we are technically excluded from it—is a serious foreign policy matter for the innermost parts of the Foreign Office. It is also a matter for this House. I believe profoundly that these issues, including the euro pact itself, are not being properly disclosed. The Minister might know what is going on, but we do not. We are not being told. We do not know what the strict conditionality affecting the other member states in the eurozone will be under article 138 as amended. The plain fact is that in that conditionality a crisis lurks. If over-severe conditions are imposed, we will have another crisis in Europe.
This is a bad treaty proposal. The leverage comes now, when we have the opportunity to say no. The Government propose that this will be dealt with in a Bill, but that will be far too late. The Government are acquiescing in this, and I regard that as a form of appeasement to the modern problems of Europe in the form of a predominant Germany, which is not in the interests of Europe, not in the interests of the United Kingdom, and not in the interests of Germany itself.
Hindi Radio Service (BBC)
William Cash Excerpts(15 years ago)
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Mr Leigh
That is absolutely right.
Let me read out a couple of quotations by ordinary people from an article in The Times:
“Vijay Kumar Pandey…every day at 6 am, takes his battered transistor radio and places it on a small table outside his house. Through the shortwave crackle a burst of familiar Indian classical music announces the beginning of a half-hour news bulletin.
Other villagers arrive to listen to the world’s most important events. They have been doing this since 1940, gathering at dawn and dusk to hear BBC Hindi’s twice-daily news programmes.
‘I am in shock,’ said Mr Pandey, a farmer in…Uttar Pradesh. ‘It’s like a family member departing from me.’”
The article continued:
“My life would lose its meaning if BBC Hindi stops its service,”
said Tarachand Khatri from Rajasthan.
“Can you imagine living with somebody throughout your life and, suddenly, that person is gone? BBC Hindi was a person; we used to interact with it through its programmes; we used to share our happiness, feelings, thoughts and concerns.”
The respected Indian news weekly Outlook reports that some villagers have threatened to burn David Cameron in effigy—something that we would all deprecate. Mohammed Hasnain Khan, a schoolteacher from Ghazipur, has threatened to immolate himself if BBC Hindi is shut. Ravindra Chauhan of Assam says that hearing that BBC Hindi will close was as if
“someone tells you that your parents will die in March.”
And so the arguments go on. This decision is an attack on people who have no way of hitting back, and I think that we should protect them, especially as the Department for International Development is set to continue funding the poorest states in India to the tune of £250 million.
Mr William Cash (Stone) (Con)
Given the BBC’s enormous revenue, which is something like £4 billion a year, and how many correspondents it sends across the world in batches, does my hon. Friend agree that this incredible waste—in respect of which he and I fought to bring the BBC’s accounts within the purview of the National Audit Office—is completely disproportionate to the value that is attached to this service? Lastly, he might be fascinated to learn that 10 May 1940—the day on which the service began—happens to be the day I was born.
Mr Leigh
It is a very notable anniversary.
At this precise moment the BBC is wasting hundreds of thousands of pounds on a regionalisation programme—a programme that involves moving the headquarters of “Question Time” to Glasgow, for instance, even though it will continue to move around the country—while it is cutting a valued service in India.
European Union Bill
William Cash Excerpts(15 years ago)
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Mr James Clappison (Hertsmere) (Con)
I beg to move, That the clause be read a Second time. As another Member who willingly put his name to the new clause, I am delighted to do so.
Members who are familiar with the Second Reading debate and the proceedings in Committee will know that clause 5 is about a statement that must be laid before the House within two months of the conclusion of any of the treaty changes covered by the Bill, as part of the process whereby a referendum takes place. It covers treaty changes in both the ordinary revision procedure—the one with which we are all familiar, involving a convention followed by the full panoply of treaty change and agreement between the nations—and the simplified revision procedure that was introduced by article 48(6) of the treaty of Lisbon, which makes it much easier for the parties to the European Union to bring about treaty change. Under that article, all they need to do is reach an agreement within the Council and then put it to the member states, and unanimity is required for that. It is generally regarded as a measure that speeds up treaty change.
New clause 1 would require much more information to be included in the statement, or to be provided with it. When my friend the hon. Member for Birmingham, Edgbaston (Ms Stuart) drafted the new clause, she may well have had in mind what took place during this House’s proceedings on the treaty of Lisbon, and I certainly had that in mind when I signed it. The then Government advocated all the measures in the treaty of Lisbon to the House—and to the country—but it was revealed during the debate that at the Convention that led to the drafting of the constitutional treaty which later became the Lisbon treaty, they had opposed a number of key proposals.
Mr William Cash (Stone) (Con)
Is my hon. Friend also conscious of the fact that the Conservative party was, for the first time since 1972, united on that issue, and that it voted consistently against every provision that was worth voting against in the Lisbon treaty, yet subsequently accepted it?
Mr Clappison
Yes—and not only that, because my hon. Friend is being characteristically modest, as some of the warnings about the consequences that would flow from the treaty of Lisbon have proved right in the short time that has elapsed since its introduction. I am thinking in particular of the warnings that were given about what I regard as the unfortunate influence of the European External Action Service and the EU’s new Foreign Minister, Baroness Ashton, which has not entirely served the interests of this country.
Mr Clappison
I stand corrected. I do not know whether the hon. Gentleman’s colleagues voted both for and against an in/out referendum, or whether they voted both for and against having a referendum on the Lisbon treaty. I do remember, because it would be hard to forget this, that one of his colleagues was excluded from the Chamber because he got into such a terrible temper about not being able to have an in/out referendum. I am not sure how many of his colleagues supported the amendment that we dealt with several evenings ago proposing an in/out referendum; the Hansard record will doubtless show the number.
The fullest possible information should be available to this House and to the British people so that we know what is really going on. One of the fundamental problems of the European Union is the feeling of disillusionment that people have about its lack of accountability. We do not know what is taking place and being done in our name. The EU is remote and decisions are taken behind closed doors. Some arrangements are entered into beforehand in an entirely private way, with decisions not even being taken at the meetings themselves, but often being taken behind closed doors. We need more information about such matters.
Mr Cash
Even as we speak, a gigantic deal is being done in Europe. It is called the “competitiveness package”. It took me an urgent question—thanks to you, Mr Speaker—to elicit the truth about what was going on in European economic governance. What my hon. Friend says is absolutely right: a tradition of deceit lies behind all this, and it goes right across the whole of Europe.
Mr Clappison
I am grateful to my hon. Friend, because he has done the House a service. It was entirely due to him that the contents of the Van Rompuy report, as they affected this country, which they clearly did, were revealed to this House. We look forward to having a fuller debate on those in due course. We want a fuller debate on many other issues, but when a treaty change comes before this House and is the subject of a statement under clause 5 we need to have all the information. We need to have everything out in the open so that we can have a full and well-informed debate.
Mr MacShane
There is a curious alliance between two distinguished former Members of the European Parliament—my hon. Friend and the hon. Member for Daventry (Chris Heaton-Harris)—in saying that perhaps this House can learn from the European Parliament. Other right hon. and hon. Members might care to look at that.
The European Union will be taking very big decisions on Friday, when there are two special meetings of the Council, the first of which—
Mr Cash
The right hon. Gentleman, in some dispute with my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), suggested that decisions taken by the Council of Ministers were not legislative acts. Can he think of anything that is more of a legislative act than when, by a majority vote, the decision that is taken is binding upon this House without our having any opportunity to intervene?
Mr MacShane
Yes. In my constituency, which is a very strong manufacturing one, the acts of the World Trade Organisation have far more impact, and we do not consider the WTO to be a legislative body.
On Friday, there will be two highly important meetings of the European Council, the first of which will discuss Libya. I am a supporter of much of the robust line that the Prime Minister has taken since he came back from his trip to the middle east. It will be interesting to see whether the Government publish all the details of the propositions that they are putting up for that debate and decision, or whether they offer a referendum lock to the people of Britain on any future military intervention in Libya, as proposed in certain other areas under the Bill.
Once that meeting is over—I sincerely wish the Prime Minister and his team well; I hope that the whole House does, because Libya will continue to occupy our minds and worries for many months ahead—the British Prime Minister will be asked to leave the room. That is because the next set of decisions that will be taken, on economic governance and the euro, will exclude Britain, even though they will impact on us, as the Council will discuss how to react to the new Irish Government’s position in wanting a serious rewriting of the agreement that the previous Government had reached. It may discuss the European Parliament’s call for a ban on naked short selling, which the German Government have already introduced in Germany and which is very unpopular in the City. Britain will not even be there, because it is excluded from that part of the Council. The notion that we will learn about decisions made in Europe if Britain publishes its documents is nonsense, because unless all 26 other members states do the same, we are left in ignorance on the ebb and flow of discussions.
Mr MacShane
If I may, I will continue, because I am sure that the hon. Gentleman will have a good chance to speak shortly.
Mr MacShane
It is a mixture of both. First, one listens to the positions of all 27 member states, then one says things like, “Look, that’s not going to fly for us. We suggest you drop it. Here are our ideas.” Proposals go backwards and forwards between the Council secretariat and the Commission secretariat, and they come back here for discussion, as my hon. Friend the Member for Birmingham, Edgbaston (Ms Stuart) rightly said. Whitehall has a very effective co-ordination operation. As a result, the finest civil servants in the land meet very early every morning—sensibly that is usually done without any gabby politicians present—and over a large English breakfast, on the eighth floor of some Hilton or Hyatt in Brussels, they hammer out a position and work out where every other country will be to maximise what Britain wants. Very often, we are the demandeurs who want to achieve a policy change in the European Union which requires skilled diplomatic negotiation. I say respectfully that the notion that all that can be minuted and published is not realistic.
Mr Cash
On a point of information, I just wanted to put it to the right hon. Gentleman that the European conclusions of 4 February, to which he referred in the context of the eurozone and the other member states, specifically state:
“Non-euro members will be invited to participate in the coordination.”
They also state that it will be guaranteed that
“the Heads of State or government of the interested non-euro area Member States are duly involved in the process.”
I therefore do not think he was quite right to suggest that we would not be involved, because the conclusions state specifically that we will be. However, the whole system is completely crazy.
Mr MacShane
We will see what happens on Friday. I am concerned, as all hon. Members ought to be, that because we are not in the euro—for perfectly good reasons—Britain is not as fully involved as the other deciders in many areas of decision making. We will leave that to be revealed in Friday’s meeting and future discussions.
I am very attracted to the point made by my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty). We can now, in the House of Commons, announce the new Connarty law: there is a precise ratio whereby the more paper provided on any European decision, the less real discussion and debate there is thereon. I hope that he will agree that that new Connarty law should be enshrined as an official part of how we do business in Europe.
I remember that for the constitutional Convention, on which my hon. Friend the Member for Birmingham, Edgbaston valiantly represented the House of Commons, the then Foreign Secretary and myself set up a special Select Committee and published everything. We had regular meetings for the sake of accountability, but not a single Opposition Front Bencher ever came to them and they were often inquorate. The hon. Member for Stone (Mr Cash) was valiantly present at every meeting, but his party leadership was absent. Again, that reflects the Connarty law—the more opportunity and information right hon. and hon. Members are given on Europe, the less inclined they are to take it up and debate it.
Mr Shepherd
I have just heard another inaccuracy from the right hon. Gentleman, just as previously he was corrected on a matter of fact regarding the invitation of those not in the eurozone to be present at meetings affecting what are profound matters. I shall therefore take with slight caution some of the arguments that he has advanced.
I should declare an interest: I am a parliamentary vice-chairman of the Campaign for Freedom of Information. What is noticeable is that Europe is notoriously remiss in this area. It is proclaimed that work is being done on freedom of information, yet in many ways the bureaucracy in Europe is one of the most secretive organisations of them all.
Mr Shepherd
This is the record on Europe that most of us will recall; it is not the fantasy of some, who see Europe as an object of almost theological insistence.
Mr Shepherd
As I understand it, the European Union purports to be a country now. That change of title happened following Maastricht. We became citizens of the Union, also under Maastricht. Those issues were fiercely fought over. The question of whether Her Majesty the Queen was a citizen of Europe arose on the Front Benches here. We asked those questions and they were debated. The Bill was passed, but it was, as Labour Members will recall, a damned close-run thing—on one amendment in particular.
Mr Cash
The very amendment paper that my hon. Friend is holding in his hand demonstrates the amendments that have been tabled and that are available to everyone who cares to look at them. On the basis that the Council of Ministers is a legislative body, does he not agree that, if we have to receive its legislation and are then allowed to table amendments to it, we should be entitled to see the amendments that have been tabled during the preceding process?
Mr Shepherd
That is the argument, and I am glad that it was so briskly conveyed. On that note, I urge the House to support the new clause.
The Minister for Europe (Mr David Lidington)
This has been a genuinely interesting debate which—somewhat unusually for European debates, dare I say it—has developed in a way that I did not altogether anticipate. We started by discussing a new clause dealing with transparency and public and parliamentary access to information concerning European negotiations, but as the debate continued it developed along the broader theme of the adequacy or inadequacy of our current arrangements for the scrutiny of decisions taken by successive Governments of the United Kingdom on behalf of Parliament and people within the institutions of the European Union. I thank all right hon. and hon. Members who have taken part in the debate.
The key choice that has to be borne in mind in considering the proposition put forward in the new clause tabled by my hon. Friend the Member for Hertsmere (Mr Clappison) and the hon. Member for Birmingham, Edgbaston (Ms Stuart) concerns the most effective balance between, on one hand, appropriate access to information that provides the flexibility to allow citizens and other interested parties to see documents that contributed to policy making and, on the other hand, the need to preserve a space for candid, confidential discussion, deliberation and negotiation to ensure the best possible outcome in the interests of our country. I have sympathy for many of the arguments—certainly the motivations—of the hon. Members who tabled the new clause, but I do not think that it would deliver the right balance. I will make my arguments in more detail in due course, but I hope that at the end of the debate they will not press the motion to a Division.
I want to start by addressing some of the broader issues that have been raised. The hon. Member for Birmingham, Edgbaston said that we needed to know when and how Ministers voted. Of course, one of the changes introduced by Lisbon is that we have new rules for the workings of the Council, including not only a public record but a public broadcast of the final deliberations at a Council session on legislative dossiers. At that point, it is apparent how each member state has voted, if indeed there is a formal division, and the arguments or the statement of position that the Minister or other representative of a member state chooses to put forward are also be made public. I have sat through a number of those public sessions over the past 10 months. I do not think that they will ever command a mass audience on a Saturday evening. I am not aware that they have ever been broadcast as part of the regular prime-time news bulletins in this country or any other member state.
The new clause and many of the contributions to the debate have tried to get at how Parliament, on behalf of the public, can hold Ministers to account more effectively, not just for that final, often rather formal, process of taking a decision on live TV, but for how the negotiating position of the United Kingdom is shaped in the numerous bilateral contacts and contacts with European institutions that are undertaken by Ministers and officials, sometimes over many months. A number of ideas have been suggested. My hon. Friend the Member for Ipswich (Ben Gummer) said that we need to look at the matter in the context not only of the EU, but of our participation in other international institutions and considering the use of royal prerogative powers more generally.
It is interesting that no hon. Member has mentioned the House of Lords, which has distinct and different scrutiny arrangements. There is a question for parliamentarians at both ends of this building as to what methods of scrutiny experience teaches us work best and most effectively. If Government and Parliament are to agree on new scrutiny arrangements, the position of both Houses will have to be taken into account.
Mr Cash
I am sure that the Minister would not want to misrepresent the differences between the two Scrutiny Committees. I know he is aware that the House of Lords has more generalised debates, whereas under our Standing Orders, our debates relate to particular legislative documents. To align the two might be a bit of a mistake.
Mr Lidington
That would be a matter for debate. I have heard dissatisfaction with the current scrutiny arrangements and a wish to explore the alternatives from several Members from all parts of the House this afternoon. At the moment, we have a model in the House of Commons and a model in the House of Lords. This business is done in various ways in other member states. Such a debate would take all those approaches into account.
The hon. Member for Linlithgow and East Falkirk (Michael Connarty) and my hon. Friends the Members for Dover (Charlie Elphicke), for South Swindon (Mr Buckland) and for Cheltenham (Martin Horwood) talked more generally about how we could improve our scrutiny arrangements. It seems to me that we need to keep the distinction between Parliament and Executive clearly in mind. Parliament’s role is to hold Ministers to account for their decisions, not to take on the role of the Minister. There is a strong case for saying to Parliament—perhaps I should be more cautious and say suggesting to Parliament—that rather than drowning parliamentarians in paperwork, about which the hon. Member for Linlithgow and East Falkirk made a good point, Parliament and its Scrutiny Committees could seek to call Ministers before them, including in advance of Council decisions rather than necessarily waiting for the final version.
Mr Lidington
When speaking on behalf of the Government, I must be careful not to presume to represent a collective Government position that does not yet exist, nor to pre-empt the views of parliamentarians from all parts of the House on the most appropriate method of scrutiny.
Mr Cash
The Minister is moving away from the proposals put forward by the hon. Member for Birmingham, Edgbaston (Ms Stuart) into a much deeper question, and I know that he is taking this opportunity to do so. As Chairman of the European Scrutiny Committee, I ask him to consider also that because the decisions made by the Council of Ministers are of a legislative character and are binding on Parliament through section 2 of the European Communities Act 1972, it is incumbent on him to consider the idea—in fact, to implement it—that Parliament may decide to vote against proposals that have been cultivated by the Government and to reject provisions that have been decided in the Council of Ministers. Perhaps the Minister can throw that point into the pool of his considerations.
Mr Lidington
That is clearly already possible under our system if a European measure comes forward that requires primary or secondary legislation to transpose it into the law of the United Kingdom. It is up to the Government of the day, of whichever party or parties it is composed, to retain the confidence of Parliament and to persuade a majority in Parliament to endorse their preferred approach.
The hon. Member for Birmingham, Edgbaston challenged me on the question of collective memory. The hon. Member for Linlithgow and East Falkirk said that he regretted the switch from European Standing Committees with fixed memberships to European Committees with shifting memberships. I spent my first Parliament, among other things, doing duty on European Standing Committee A. There is no doubt that I learned a great deal by virtue of that continuity, not least through the example of the late and great Gwyneth Dunwoody on how to hold Ministers to account. She used to deliver a master class in reading the documents in advance and picking out the weaknesses in the Government’s argument.
Mr Cash
I would very much welcome the idea of having, for example, European questions in the House. I have many proposals that would make the system more efficient. I remind my right hon. Friend of the current Home Secretary’s pamphlet, which recommended not only that European Committees should have their proceedings properly advertised, but that if, for example, 150 Members decided that they wanted to have the matter in question debated on the Floor of the House, there should be a free vote on a motion to overturn a decision taken in the Council of Ministers, whether or not the Government had approved the provision there. Some of us would be more interested in the results of a vote than in a mere discussion.
Mr Deputy Speaker (Mr Nigel Evans)
Order. Can we bring the debate back, please, to new clause 1?
Mr Lidington
I simply remind all hon. Members who want to take forward these wider arguments that I said in my written ministerial statement on scrutiny on 20 January, which referred mostly to justice and home affairs, that the Government would
“review the arrangements for engagement on EU issues in consultation with Parliament.”—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]
I invite them to take advantage of that opportunity.
I turn to the detail of new clause 1, which causes me concern because it would result in the United Kingdom having a substantially different policy with regard to information on EU decision making from that on domestic policy making. It would also represent a substantial impediment to the UK’s ability to negotiate effectively in an intergovernmental conference, in the European Council and in the Council of Ministers. As a number of Members have said, it could have a negative impact on our relationship with other member states and the EU institutions, and more generally on the process of good policy making and legislation.
The negative effect on our ability to negotiate at the Council of Ministers concerns me most. First, action to comply with the statutory duty that the new clause would impose on Ministers could reveal sensitive information about the UK’s long-term negotiating approach in a number of areas. I do not believe it is sufficient protection to say that the negotiations would be complete or substantially complete by the time the documents were made available, because it is very rare that negotiating positions taken in respect of one piece of legislation do not have a read-across to positions on other matters that will probably still be live dossiers when that legislation has been agreed to.
Secondly, complying with the new clause would mean that our tactics in negotiations would have to take into account the duty to make negotiating positions on proposed amendments public at a later stage. For example, there are occasions on which we try to persuade other member states to propose, or take the lead on, particular amendments so that we can concentrate our time and energy on different amendments that perhaps have less widespread support. If a Minister knew that he might be criticised if it became public that he had not sponsored a particular amendment, that would constrain our negotiating tactics and weaken our negotiating strategies.
I quite understand that the proponents of the new clause might want to see how a decision is made at EU level and the details of what part the UK has played in that process, but I do not want any Ministers of any Government who are fighting for Britain’s interest in future discussions and negotiations to be doing so with one hand tied behind their back. It is absolutely essential to our national interest that Ministers can negotiate effectively on behalf of our country.
As a number of Members have said, including my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), the new clause would also have implications for information that we have on record about the positions of other member states. There is even a risk that its requirements could put us in conflict with existing European legislation. As a member state of the EU, we are party to the terms of the access to documents regulation, article 5 of which requires that when any member state intends to disclose a document originating from one of the EU institutions, it must consult that institution before public disclosure. If, under the new clause, we had to release a text submitted at a Council working group that included proposed amendments from each member state, and the agreement of the Council as a whole had not been sought or obtained, we could potentially be at risk of infraction proceedings and ultimately a fine. As the new clause is drafted, it is quite possible that our obligations as an EU member state could be at odds with the statutory duty that the new clause would create.
Mr Lidington
The remedy that my hon. Friend seeks can be obtained by Committees and the House being energetic in holding Ministers to account for the positions that they take and for the way in which they agree to whatever compromise is eventually negotiated.
Importantly, the proposed new clause does not specify in any way to what “relevant documentation” refers. That came up earlier in the debate. It is not clear, for example, whether “relevant documentation” covers so-called non-papers submitted by member states, which are intended to be “without prejudice” contributions to discussions. Does it include Council working group documents that give the position in summary of each and every member state on a particular issue? There could easily be widely diverging views on what comprises “relevant documentation”.
That lack of clarity could also cause confusion in relation to UK documents. Reference was made during the debate to whether legal advice given to the Government would be required to be made available under the terms of the proposed new clause. If so, that would clearly undermine the principle of legal professional privilege, the significance of which the Information Commissioner has generally recognised in the context of the Freedom of Information Act. Governments need to receive free and frank legal advice without fearing that it must be drafted in a form that is suitable for later public consumption.
Hon. Members may argue that we should try to use the current renegotiation of the access to documents regulation to implement the provisions of proposed new clause 1, but that measure would take us a long way beyond what would be acceptable in terms of releasing documents that are used at EU level for deliberations and decision making. The positions of other member states in respect of the documents that they make available to their Parliaments and public vary dramatically. Domestic regulations in several states lay out specific criteria on which documents can and cannot be released. Such criteria often allow for a great deal of discretion for Ministers or their officials, or impose strict limitations on the type and origin of documents to be released.
In some member states, the approach is to accept the general principle that as much documentation as possible should be released, with the only limitations being the prevention of harm, with harm often being defined in terms of personal, legal or economic impact.
Mr Lidington
I look forward to visiting my hon. Friend and seeing the framed Hansard extract of my argument. I could return the compliment by wallpapering one of my rooms with the Hansard report of one of his speeches.
Hon. Members referred to a number of EU member states in the debate. Denmark was cited more than once as the prime example of an open country, but the documents that the Danish Government must provide to the European Affairs Committee of the Folketing do not include the positions of other member states or amendments that they have proposed, and nor are the Danish Government required to provide documents that have been prepared for their internal use, such as inter-ministerial correspondence. Even in Denmark, the right of access is subject to limitations when protection of, for example, public financial interests is essential.
Charlie Elphicke
I do not decry the role of the House of Lords, the excellence of their lordships, the work that they do, their courage or the passion with which they advance their cases. Indeed, it is often said that the debates held in their lordships’ House are far more informed, considered, interesting and informative than our debates in this House. Having been in this place and not that place, I cannot compare the two. Nevertheless, it is a dangerous principle to say, “Let’s include a provision in the Parliament Act to say that the House of Lords should be not only the guardian of five-year Parliaments but the guardian of this Bill, to protect it from being altered.”
I would have much more faith in the proposal if reform of the House of Lords had been completed—something that I hope will come to pass. One of the problems that I have with the House of Lords is not the people in it or their mental ability—many of them are excellent people and their mental ability is far superior to mine—but my concern that they do not hold a democratic mandate. It is an important principle that where we have representatives in our legislature, they should have a mandate from the people. I guess it is because I am a Lincolnian politician—I believe in government for the people, by the people, of the people—that I believe that the sunshine of democracy should permeate our entire legislature, and not just this House. I admit to some radicalism in my thinking on such matters, but I believe it is important that all our politicians should be elected and have a democratic mandate.
Mr Cash
Will my hon. Friend turn his mind to this radical thought? If the House of Lords were to become an elected Chamber, it would not make the slightest bit of difference in respect of the argument that he is presenting, because the Parliament Act would remain on the statute book. The argument that my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has put forward would also apply to an elected House. The question, in a nutshell, is one of judicial supremacy, which is why I strongly support what my hon. Friend the Member for North East Somerset has been saying.
Charlie Elphicke
I take the view that this will be an important Act. It will introduce a referendum lock to ensure that we do not get dragged further into the European Union without consulting the British people. Inevitably, because Parliament is sovereign, it would be able to unravel the Act, to repeal it and to take away the people’s right to have a say in a referendum. That is the right of Parliament, but I do not agree with the argument for entrenching it to the same extent as the Parliament Act, as is suggested in the new clause. The Parliament Act is an entrenchment of our basic right not to have our democracy stolen from us. I would not place this legislation on that same lofty plane. It is important that Acts of Parliament should be able to be changed or repealed by a sovereign Parliament. The political issue is that any person or party that repeals an Act such as this will reap the whirlwind from the electorate. I am happy that we are able to pass and repeal Acts, and that the electorate should have the final say at an election, at which point they can condemn any such behaviour. I shall now give way to my hon. Friend the Member for Northampton South (Mr Binley).
Michael Connarty
My hon. Friend’s point is correct, but that is not what we are talking about. He describes a situation in which this or any Government decided to challenge the original decision. A law could be passed that would continue to run contrary to European Union law; I believe that that is happening in many countries. We and the Norwegians are the most obsessed with trying to get everything right in terms of fitting in with European directives. A challenge could be made, however, and we would then have to decide whether it was right for us to negotiate a change in the relationship or to abandon our law and accept the ruling of the European Union. At the moment, that does not happen.
My main point is that we in this democratically elected Chamber can overturn these decisions at any time if we have the will to do so. We are not bound by them for ever. Like any other law, we will be able to challenge this legislation in this Chamber, which is why I do not believe that we have to go through the rather tortuous, although eloquently described, process of applying an amendment to the Parliament Act 1911.
On the ability of the Lords to protect us from changes to our democracy, they have not protected us from this shabby coalition, which is proposing a law that would guarantee that the coalition would run for five years—a proposal that I spoke against in the first debate in this place after the election—unless the shabby minority part of that shabby coalition, the Liberal Democrats, decide to pull it down, because no other person in this place could do that. If the Lords could protect us from that, I might have more confidence in the 1911 Act.
Mr Cash
I should like to endorse the general thrust of the new clause tabled by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), although I must qualify that slightly by saying that I do not take the view that there is a difference between different types of statute. However, that does not make a material difference to the thrust of his argument, which is that we must at all costs preserve the right of this House ultimately to make the decisions. Indeed, in the 1870s—it might have been earlier—the statesman John Bright put forward the proposition that led to the Parliament Act 1911, some 30 years before it was implemented, precisely because he did not believe in privilege, in aristocracy or in the House of Lords as it was then constituted.
The reality is that we can achieve the objectives by adopting the new clause without necessarily accepting that the House of Lords could not become an elected body if that were the view of this House in due course. I do not accept the proposition put forward by my hon. Friend the Member for Dover (Charlie Elphicke) because so long as we have a second Chamber, the House of Lords will be the House of Lords—irrespective of whether it is elected.
The question of constitutional statutes has been introduced as a notion, but it is not intrinsic to the argument. What is essential is to ensure that we do not allow the Supreme Court to adjudicate over and above the decisions taken by our Parliament. That is the key issue. Some futile commentators—and, if I may say so, some Members of this House—mislead themselves from time to time by suggesting that sovereignty is not such an important issue. The reason for its importance is very simple: we Members are elected to make decisions, and all the other issues, such as dealing with burdens on business and so forth, stem from that. That explains my view of the European Union, which is that, where necessary, the sovereign Parliament should override through the “notwithstanding” formula to which my hon. Friend the Member for North East Somerset rightly referred and which I have employed on a number of occasions when I have been supported by Conservative Front-Bench Members—for example, when we were in opposition and with respect to the Legislative and Regulatory Reform Act 2006, and on other occasions.
What we need to insist on above all—it cropped up in the previous debate—is that this House on behalf of the electorate represents the democratic process whereby we are voted in to make decisions. We must insist on that at the expense of judicial supremacy. Even though I am the first to say that it is for the courts to interpret legislation, it is not for them to make it. That is the fundamental point. I thoroughly endorse both the sentiments and the wording of the new clause.
Mr Lidington
I thank my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg),who I know takes a strong interest in these important constitutional issues—and he is right to do so. Our short debate has allowed him and other hon. Members to seek a means to entrench the Bill once it reaches the statute book, and to protect it from future attempts at repeal. At the same time, the new clause has been drafted in such a way as to permit my hon. Friend the opportunity to raise broader constitutional questions about the ultimate authority to take decisions and whether that should lie with Parliament or with the judiciary. My hon. Friend cited in particular the leading judgment of Lord Justice Laws, which has been quoted on many occasions during our proceedings on theBill.
I am afraid, however, that although I agree with much of the sentiment that underpins the new clause, I cannot support the new clause for reasons that I shall shortly provide. Let me first explain a little about the Government’s interpretation of the new clause and its effect. It would introduce a new category of Bill, which could not be passed under the procedure provided by section 2 of the Parliament Act 1911.
As all hon. Members will be aware, section 2 of the Parliament Act 1911 makes provision under which most public Bills can be enacted ultimately without the approval of the House of Lords. There are, however, two exceptions to the general rule. The first relates to money Bills, which have their own procedure under section 1 of the Parliament Act. The second exception is for what that Act terms
“a Bill containing any provision to extend the maximum duration of Parliament beyond five years”.
Under the new clause, there would be a third exception: namely, any Bill that sought to amend or repeal what would be provided for in sections 1 to 7 of the European Union Act 2011, which this Bill will become if Parliament agrees to its passing. In practice, this would mean that the legislation could not be either repealed or amended in respect of those sections without the express consent of the House of Lords.
I hope it goes without saying that I fully support the political intention of the new clause to help to ensure that the Act remains on the statute book for a long time to come. As my right hon. Friend the Foreign Secretary said on Second Reading, the Government believe that the Bill should become
“part of the accepted constitutional framework of this country”.—[Official Report, 7 December 2010; Vol. 520, c. 197.]
It is right to point out, however, that the Parliament Act 1911 has been amended only once, in 1949. Since then, Parliament has not considered it appropriate to single out any other pieces of legislation—for example, the Acts of Parliament passed to provide for Scottish, Welsh and Northern Irish devolution, the Constitutional Reform and Governance Act 2010 or, indeed, the European Communities Act 1972—for similar special status. Even enthusiastic supporters of the Bill would find it difficult to argue that this piece of legislation should be singled out in this particular way, which is denied to other items of legislation that might generally be accepted to have important constitutional significance.
Mr Cash
Even if my right hon. Friend were right in his general assertions about elements of the Bill, the implications of clause 18, as the European Scrutiny Committee report made clear, puts it into a very special category. Despite our attempts to amend that clause, which were sadly and tragically defeated, the fact remains that clause 18 makes a very significant change to this country’s constitutional arrangements. For that reason, the Bill should indeed be put into a different category.
Mr Lidington
I am grateful to my hon. Friend for acknowledging the importance of clause 18. We had a full day’s debate on that clause at the start of our Committee proceedings, but I rather think that you would warn me, Mr Hoyle, against recapitulating that debate this evening. It is hard to imagine why a future Parliament would choose to repeal this Act, thereby abolishing the referendum lock and the enhanced control and scrutiny that the Bill provides for Parliament and the British people. It would incur a high political cost for any Government who brought forward such a measure and, indeed, for individual Members of Parliament who were prepared to walk through the Lobbies in its support.
It is an important part of this Government’s commitment to rebuilding trust with the British people to make clear what the future arrangements should be. Although it is always possible that a future Government will decide to act differently, I find it hard to imagine that any such future Government would be able to defend taking away from the British people the right to have their say about further changes to the European treaties.
I have further concerns about the impact of the new clause on the long-standing relationship between this House and the House of Lords. It would alter the relationship by expanding the relative powers of the House of Lords. It has never been part of the Government’s intentions for this Bill that it should be used to alter that relationship.
Michael Connarty
I want to speak briefly in support of new clauses 3, 4 and 5. They get to the meat of the discussion we should have been having with the Government before they introduced this silly Bill. It is silly because it is never likely to be used, as there are so many ways that a Government Minister of any political complexion who wishes to continue with the European project can get measures through Parliament, such as by saying that they are insignificant or that it is not necessary to have an Act of Parliament. Therefore, I do not think that the Bill’s measures will be used a great deal. It is based on the premise that the Government want to put in place the measures they introduce, and presumably a Government of any complexion will know that they need a majority in the House in order to introduce any measure that they might decide is significant enough to be dealt with by a referendum or an Act of Parliament.
In reality, therefore, the Bill is a bit of a public relations exercise. But the new clauses are not. They would address the things that are wrong at the moment with the process of dealing with the emergency brake. It should be in place and it should be used properly in a way that gives a Government a chance to speak on behalf of their Parliament and their people in the Council in a fundamental way. New clauses 3 and 4 are very attractive, because would give teeth and meat—a bit of beef—to a Bill that lacks that completely. The Bill is a list of things which might be on the mind of the body politic and perhaps the anti-European press, but it does not have any substance. The new clauses have substance, as they lay out clearly how the brake should be used.
There is absolutely no doubt that new clause 5 is necessary. It deals with a tax and we should have had a similar clause, somewhere along the line, on the giving away of our social security rights. It is clear that people who come to this country to work see social security as an extra payment that does not come out of the pocket of their employer. When someone leaves their family back in Poland, where they still have their house, to come to this country to work, they get all the benefits required under our social security legislation—tax credits, child tax credits and so on—which they often send back home. They also often end up with a council house, because they then bring their family to this country and live in overcrowded conditions, and they leave their house back there being paid for by the British taxpayer. All those things might have been examined seriously if we had had a provision such as new clause 5 to deal with how social security would transfer.
Clearly the own resources arrangement is a tax and will be about creating a European tax as a substitute for VAT. I have been at conferences and seminars called by the Commission in other countries to press that point heavily, and thank goodness Treasury officials were there to argue hard against such an arrangement. We might say that it was one of the three red lines, because we said that tax was a red line that would not be crossed. However, the own resources debate will clearly be pressed again and again by the Commission, which will try to convince us that the proposed arrangement is not a breach of one of those red lines. New clause 5 would put up a nice barrier that we would have to cross purposefully and decisively if we wanted to move away from that red line. I commend the hon. Member for Daventry (Chris Heaton-Harris) for his tenacity, even at this late stage, in tabling well thought-out new clauses. I do not think that they come from a Eurosceptic, anti-European view; they would just be common sense and make good legislation.
Mr Cash
I wish to speak about my amendment 1, because it is important not only in principle, but in practice as we move forward on the negotiations taking place on two main issues. The first is European economic governance as a whole and the other is the, as yet, unformulated competitiveness package, which is coming up in the lift and being promoted vigorously in some other parts of the European Union.
The issue turns on the Bill’s proposal for the circumstances in which a treaty or an article 48(6) decision attracts a referendum. Under clause 4(4)(b), we would not have a referendum where
“the making of any provision that applies only to member States other than the United Kingdom”
came into play. It might sound obvious that we would not want to have a referendum if it did not affect us but, unfortunately, that rather innocuous wording raises a substantial and profound problem.
I remember Chancellor Kohl talking in the 1990s about the need to move forward with a two-tier Europe and he used the analogy of a convoy. The Minister for Europe is doubtless aware of what is coming up in the lift, but he should also be very worried about it because it is one of the greatest and most serious problems that we face. Many people, including distinguished commentators from the Financial Times and other newspapers, take an interest in these matters and get to the root of what is going on in Europe at the moment. Rather than merely having a convoy of ships travelling at different speeds with the slowest eventually being required to catch up—that was Chancellor Kohl’s analogy—these proposals on European economic governance are the equivalent of having an aircraft carrier of the eurozone and a rowing boat of the other member states that are left behind.
I do not believe for one minute that we should be in any way trapped or lured—to use the Prime Minister’s words—into engaging in the kind of European economic governance proposals that apply to the eurozone or to the competitiveness package on their own merits. Given the record of the European Union, neither has worked, is likely to work or will work. But there is a danger in our acquiescing in allowing the other member states to go ahead by participating in the given procedure, be it the ordinary legislative procedure, the special procedure, the special purposes vehicle or something that arises by virtue of a treaty. The key test is whether it
“substantially affects all or any of the political, economic, fiscal, social or constitutional relationship between the United Kingdom and other Member States of the European Union.”
That is how my amendment 1 puts it.
If something falls into that category, as I firmly believe these proposals do, it clearly affects our fundamental relationship with the European Union in such a way as to require a referendum. We went through the arguments about the constitutional treaty and all that followed from it, and we went through the subsequent arguments about the Lisbon treaty and insisted on a referendum on it, because these things affected this fundamental relationship. I am talking about the Conservative party, rather than the coalition, which is quite a different thing. The basis on which we presented our argument for a referendum was that the treaty was creating a fundamental difference in the relationship between the United Kingdom and the European Union.
I cannot think of anything more likely to demonstrate that fundamental difference than the implementation of these procedures, irrespective of the legal niceties of defining the transfer of powers or competences—I could argue that there is, but that is not the issue I am raising. I am saying that the key question is the substance of what is being done, not merely the choice of specific words employed—not in the Bill, but merely in the coalition agreement—about the transfer of powers or competences. I defy anybody to find the words in the Bill which say that wherever there is a transfer of power or competence there will be a referendum. That is not what the Bill says; it chooses a list of circumstances, specifically but not generically, where a referendum will be required. That is a fatal flaw in the Bill, but the real problem is the substance of what is being decided in a given treaty or article 48(6) arrangement. To my mind, the creation of a two-tier Europe, with the United Kingdom bound into it by acquiescence, puts us at risk because it creates the aircraft carrier of Europe and we are left in the rowing boat.
Mr Cash
The answer is that my hon. Friend completely misunderstands the nature of the European Union. That is the problem in a nutshell. I am afraid that she does not understand—I have to put this to her very bluntly—that the creation of a two-tier Europe on such disadvantageous terms would be very damaging to us. If, however, an association of nation states were to decide to go in one direction, while we retained our independence and did not acquiesce in treaty or other procedural arrangements that bound us into that association, I would be content, but that is not what is happening.
What is happening is that we are being actively required to become and are acquiescing in becoming part of a new treaty arrangement that affects us all—all member states as a whole—but they get their solidarity and concentration of power with the new arrangements that they enter into; we are left within the legal framework, subject to the European Court of Justice and all that goes with it, without being party in practice to the arrangements that they devise. That is why the social and employment legislation, the fiscal arrangements and all the rest of it will have a disadvantageous effect on us if they proceed with those arrangements.
My right hon. Friend the Minister may say that the proposed arrangements will be purely intergovernmental. We had a bit of a discussion about that in the debate on an earlier proposal, but that is a far too simplistic way to put it because, as I pointed out in an intervention on the right hon. Member for Rotherham (Mr MacShane), the proposals of the European conclusions of 4 February specifically state:
“Building on the new economic governance framework, Heads of State or government will take further steps”—
I now refer to an answer that I received from the Financial Secretary, who put a lot of emphasis on this—
“to achieve a new quality of economic policy coordination in the euro area to improve competitiveness”.
So they are creating a new kind of co-ordinated arrangement. It continues:
“without undermining the single market.”
I believe that my right hon. Friend the Prime Minister was very insistent on including those words, so that the proposals would not put us at a disadvantage. My argument is that, whether or not those words are included, they will do so.
The proposals then go on to say—this is all part of the manner in which the system is being devised, which I regard as extremely dangerous and implausible—
“Non-euro members will be invited to participate in the coordination.”
It then says in respect of the President of the European Commission:
“He will ensure that the Heads of State or government of the interested, non-euro area Member States are duly involved in the process.”
In other words, the appearance is given, contrary to what the right hon. Member for Rotherham said—that we would not be party to those arrangements—that in practice this is a perfect example of the two-tier system in operation. It requires some careful analysis, but it does us no favours whatsoever.
Mr Nigel Dodds (Belfast North) (DUP)
The hon. Gentleman is putting the searchlight on a very important and difficult issue. It is vital that this matter is highlighted. To continue the aircraft carrier analogy, if we are in the rowing boat, the trouble is that we are not able to row in a different direction; we are inevitably carried along in the wake even though we may be in a different place. That has happened in the past, and it is likely to happen in the future.
Mr Cash
Indeed. As my hon. Friend the Member for Daventry (Chris Heaton-Harris) pointed out, the aircraft carrier is owned by the Germans and the French. That is all part of the problem.
Let us come to the crunch: the reality is that the creation of a German or Franco-German dominated Europe lies at the heart of this. That has been one of the major concerns that has permeated the Government’s thinking for a very long time, right back to when I was advancing similar arguments about the Maastricht treaty. In fact, it was one of the reasons why I took such exception to the treaty, not only because it created European Government, but because, as I said in several books and pamphlets at the time, it was creating a German Europe as well. We need not engage in shock, horror anxiety about that, but it is part of a new dimension that will now have a significant and very damaging effect on the United Kingdom. For that reason, we should not acquiesce in these proposals; we should do everything to defeat them.
Ian Swales (Redcar) (LD)
I give due credence to the hon. Gentleman for all his knowledge on the issue, but can he think of an historical precedent where the citizens of one country have had referendum rights over a treaty to which their country is not a party?
Mr Cash
That is a very interesting question. Conversely, there have been three referendums—one in Denmark, one in France and another in Ireland—that would have an impact on us and people voted against, but the process of European integration carried on notwithstanding those results. In fact, to use an analogy, we got the rough end because, although the referendums went the way that some of us wanted, they made no difference and integration carried on anyway.
We need to understand perhaps that these proposals are, in fact, extremely dangerous. I suspect that my right hon. Friend the Minister will argue that, although we are being denied a referendum, the proposal will require approval by the United Kingdom Parliament in due course. The essence of my case is that it will have such a profound impact on the United Kingdom, by creating a two-tier Europe, that a referendum would be required because it involves a fundamental change in the relationship between the United Kingdom and the European Union.
I should like to say many other things about the proposal—perhaps I will have an opportunity to do so on Third Reading—but I have described its essence. This is a very dangerous move towards a German Europe, or a Franco-German Europe—it does not matter which way we look at it—and it is a fundamental strategic mistake. I see the Foreign Secretary, sitting on the Front Bench. He has bought this argument. I warned him before the general election that we should not enter this landscape. I am glad that he nods his head, because I was explicit about that at the time.
Finally, I recall the words of Thomas Mann who proposed what I still believe to be one of the great questions of our time, as yet unresolved, but probably resolved by these proposals of a two-tier Europe along the lines of Chancellor Kohl’s analogy of a convoy, and ask, “What will it be—a European Germany or a German Europe?”
Mr Lidington
We are confronted with a cornucopia of amendments and new clauses covering a number of important but disparate subjects. I shall try, in the time available to me, to do justice to them, but I apologise to you, Mr Deputy Speaker, and to the House in advance should I not have time adequately to deal with each new clause and amendment.
My hon. Friend the Member for Daventry (Chris Heaton-Harris) tabled new clause 3, which is grouped with amendment 4. As he said, the new clause deals with the “emergency brake” procedures in the EU treaties. It is important to note that we cannot equate the emergency brake procedure with a treaty change or with the exercise of a ratchet clause, because those relate, rather, to controls on the exercise or use of existing competences to adopt European secondary legislation such as directives or regulations in the areas concerned. His new clause would enhance parliamentary control over the use of some existing EU competences. Subsections (3) and (4) would add a requirement for a motion to be passed by both Houses before the UK could decide not to invoke the emergency brakes that can be applied to proposals for measures under all four treaty provisions specified in the new clause, and also before Britain could put an end to the emergency brake procedure by agreeing in the European Council to refer the issue back to the Council to continue with negotiations under the ordinary legislative procedure.
As my hon. Friend said, it is our view that, even were the European Council to refer a matter back to the Council to continue negotiations, member states would still be free to pull the emergency brake again if they saw fit. As consensus is required on emergency brakes, and if parliamentary approval were not granted, the result would be that the UK was effectively able to block EU decision making in those areas, although in respect of certain measures, as he will understand, other member states could have recourse to use of the enhanced co-operation procedures without the UK’s participation where that was permitted under the treaties.
Mr Lidington
If my hon. Friend will forgive me, I want to reply to my hon. Friend the Member for Daventry.
Another example of the lack of flexibility in new clause 4 relates to the variation in payments from year to year. The December letter left some scope for real variation in payments over the next financial perspective, provided that payments over the whole period were frozen in real terms. The new clause would prevent any payments variations, but such variations are a natural consequence of how the financial framework works. For example, a commitment of €100 in 2005 might lead to a payment of €20 in 2006 and €80 in 2007. That is because commitments made in one year do not translate into uniform payments over subsequent years.
We want to cut wasteful EU spending, not just to reduce the overall size of the EU budget, but to free up some resources to improve the value for money that we and other member states get from European Union spending, and to support activities such as boosting economic growth and competitiveness. We would like to see work done on improving the way in which the EU budget supports economic growth and competitiveness via the Europe 2020 strategy, subject to judicious selection of the most appropriate policy instruments. We want the EU budget to enhance security, via an active role for the EU as a global player. This could mean increases in spending under those headings, but we would insist on those being counterbalanced by reductions under other headings, all within our overall objective of restricting any increase in the EU budget to inflation.
Paradoxically, the new clause might force a referendum on the next financial framework exactly because we had successfully achieved our reform agenda within the constraints of a very tight limit on the size of the budget overall.
New clause 4 and the associated amendment 7 would hamper our objectives of driving down the overall EU budget and improving the value for money that it provides. I therefore urge my hon. Friends to withdraw those amendments.
New clause 5 is about taxes. The measures proposed in the new clause address matters that already fall within European Union competence.
Mr Lidington
We debated that issue at some length in Committee. My position and that of the Government remain that it is the sovereign right of member states to decide to agree treaties which affect them. What we are concerned about in the United Kingdom is defending the right of the British people to have a lock on anything that transfers powers away from this place to European Union institutions, and not to interfere with what other Governments decide independently that they wish to do.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Does the hon. Member for Stone (Mr Cash) wish to move his amendment formally?
Mr Cash
I will not move the amendment, but I do not agree with what the Minister has just said.
The Deputy Speaker put forthwith the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Clause 10
Parliamentary control of certain decisions not requiring approval by Act
Amendment made: 3, page 9, line 2, at end insert—
‘(1A) A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies unless Parliamentary approval has been given in accordance with this section.
(1B) Subsection (1A) applies to a decision under Article 48(7) of TEU which in relation to a provision of TFEU applies the ordinary legislative procedure in place of a special legislative procedure not requiring the Council to act unanimously.’—(Mr Lidington.)
Third Reading
The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)
I beg to move, That the Bill be now read the Third time.
I begin by thanking the many hon. Members who have participated in the very extensive debates on the Bill, with five full days in Committee, comprising more than 30 hours of this House’s time. So many Members have spoken—more than 90 in total—that it would take most of the two hours available for Third Reading to pay tribute to them all. I am delighted that the Bill has stimulated such interest.
Invidious as it is to single out any Member—I apologise to those I do not mention—I want to pay tribute to my hon. Friend the Member for Stone (Mr Cash) and the European Scrutiny Committee. Whether or not we were surprised that he did not move his amendment just now, we were certainly not surprised that he did not agree with what my right hon. Friend the Minister for Europe has just said. I thank my hon. Friend and his Committee for their two very comprehensive reports on the Bill. The Government do not take the same view as the Committee on all the points they have raised, but the Committee has fulfilled its vital role commendably. The whole House has benefited from my hon. Friend’s knowledge and his long-held and principled approach to these matters.
On the Opposition Front Bench, the hon. Member for Wolverhampton North East (Emma Reynolds), a shadow Foreign Office Minister, impressed the whole House with her first speech from the Dispatch Box, which is no easy thing to do. She showed herself to be one of the Leader of the Opposition’s new generation with a bright future. As I understand it, his “new generation” is a sufficiently elastic term to encompass the hon. Member for Caerphilly (Mr David), the shadow Minister for Europe, as well—[Interruption.] Indeed, the squeezed middle—another elastic and not exactly defined term. Perhaps both terms are suited to him. Once again, he has shown the House his great eloquence.
My hon. Friend the Member for Harwich and North Essex (Mr Jenkin) spoke with great verve and passion. My hon. Friend the Member for Hertsmere (Mr Clappison), who is in his place, brought to the debate his usual rigour and deeply held belief in parliamentary accountability. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) has spoken with all the zeal for democracy that we associate with him. My hon. Friend the Member for Dover (Charlie Elphicke) has demonstrated great fluency and articulacy in the debates, including earlier this evening. I am grateful to my hon. Friend the Member for Esher and Walton (Mr Raab) for the legal focus he has brought to the debates.
I thank my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) for the intelligence and thoughtfulness he has brought to the debate. My hon. Friend the Member for Stroud (Neil Carmichael) gave us the benefit of his considered and always thoroughly reasoned opinions. My hon. Friend the Member for Spelthorne (Kwasi Kwarteng) showed the House his enormous skill in debate. My hon. Friend the Member for Wellingborough (Mr Bone) made the debates more enjoyable for everyone, not least with his unquenchable sense of mischief. My hon. Friend the Member for South Swindon (Mr Buckland) made very carefully thought-through contributions, and my hon. Friend the Member for Ipswich (Ben Gummer) gave the House the benefit of his great clarity of mind.
My hon. Friends the Members for Witham (Priti Patel) and for Grantham and Stamford (Nick Boles), my right hon. Friends the Members for Wokingham (Mr Redwood) and for Charnwood (Mr Dorrell) and my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) have all spoken well in these debates. I thank my hon. Friends the Members for Camborne and Redruth (George Eustice), for Gainsborough (Mr Leigh) and for New Forest East (Dr Lewis). I am particularly grateful to my hon. Friends the Members for Daventry (Chris Heaton-Harris), for Wycombe (Steve Baker), for Cleethorpes (Martin Vickers), for Bury North (Mr Nuttall) and for Crawley (Henry Smith), whose rigorous scrutiny has helped us materially to improve the Bill as it has gone through Committee.
From another party, my hon. Friends the Members for Cheltenham (Martin Horwood), for Westmorland and Lonsdale (Tim Farron) and for St Austell and Newquay (Stephen Gilbert) very ably represented their party and powerfully made the case for the Bill from a slightly different perspective from that of some of my colleagues.
On the Opposition side, I want to thank the hon. Member for Glasgow South West (Mr Davidson), without whose sharp wit no debate on Europe would be complete, although evidently we are having to do without it this evening, so perhaps the debate is incomplete. The hon. Member for Birmingham, Edgbaston (Ms Stuart), who is in her place, as always brought her great experience and independence of mind to bear. The hon. Member for Vauxhall (Kate Hoey) reminded us that she is a sincere tribune of democracy. Truly, no debate on these matters would be complete without the hon. Member for Luton North (Kelvin Hopkins), as I well remember from the previous Parliament. The hon. Member for Rhondda (Chris Bryant) left us in no doubt about his view of the Bill. The right hon. Member for Rotherham (Mr MacShane)—it is a pity he is not here—fulfilled his proper role admirably, which is to denounce the Bill in such fierce terms as to convince everyone else of its great merits. He has done us an enormous service by doing so regularly.
Lastly, I must thank my right hon. Friend the Minister for Europe who has led the debates in Committee with great authority and absolute command of the language and detail of the treaties and of the Bill. I and the rest of the Government are very grateful for the superb work he has done. I should also put on the record my gratitude for the outstanding work done by officials in the Foreign Office in putting together this legislation.
The Bill represents the most significant and radical overhaul of how the most important decisions in the European Union can be made by the United Kingdom—decisions on changes to the EU treaties—since the European Communities Act 1972. It is an overhaul that is as profoundly needed as it is overdue. It marks a real shift in power from Ministers to Parliament and from both Ministers and Parliament to voters themselves.
The last 13 years of Labour Government saw the old approach tested to destruction. Four major treaties were signed. One was blocked by referendums in other countries. A referendum was promised in this country but denied and a treaty was taken through Parliament with no basis in any party’s manifesto. After those 13 years, the EU’s reach and power has grown and grown, but its standing with the British people has fallen at the same time.
For any democrat, that must be a deeply unsatisfactory state of affairs. Whether one approves of everything in all these treaties, which is a respectable position but not mine, or believes, as I do, that the EU now has considerable powers that would far better be matters for national Parliaments and Governments, we cannot go on like this. The EU’s future developments must be put under proper democratic control. That is an absolute necessity from any point of view on the EU if disenchantment with it is not to grow yet worse.
Mr Cash
It will not be the first time that my right hon. Friend has found I am not taken in by flattery. The real question is the one to which I referred a few moments ago when he was in the Chamber, which relates to the landscape of the European Union, increased Europeanisation as it affects this country and the manner in which the predominance of other countries is clearly moving further and further upstream. Does he really believe that the Bill will make any substantial difference to that question, particularly if we go down the route of a two-tier Europe?
Mr Hague
The Bill does make a material difference. It does not address the whole question my hon. Friend raises, because there are many different dimensions to it, but it is an important measure. In any future negotiations about the EU, British Ministers will be in the European Council saying very clearly that, under a vast range of provisions set out in the Bill, proposals that may be put to them in the European Council would require a referendum in the UK. That does change the negotiating position in Europe and the freedom of manoeuvre of British Governments, and it means that Governments have to be very alert to that point—not just British Governments, but all the Governments of the European Union. I can tell my hon. Friend that when I explain that point to them, as I already do, it makes a considerable impact on them.
My view is that the European Union has great achievements to its name: the single market; the enlargement of its membership, which has done so much to strengthen the spread of freedom and democracy in Europe; and the effective use of European nations’ collective weight in the world, which remains of high importance to our values and interests, as we have seen on sanctions and on Iran and hope to see in response to events in north Africa.
There are great challenges for the nations of Europe, in growth and global competitiveness, where action in the European Union on widening further markets in services, energy and the digital economy could do much to help to lift our economic prospects, but all that will be ever more overshadowed if the EU’s treaties change yet again to enlarge its powers still further without popular consent. That is the point that the Bill addresses.
Mr Cash
I am fascinated by the line that the Opposition are taking. I am not impressed, if I may say so, by the line being taken by the coalition Government. It is difficult to resist the idea that a referendum is necessary in certain circumstances, so I rather anticipate that there will not a Division this evening, since the Bill is associated with what is really no more than the unlikely event of a referendum being called in respect of any of the provisions contained in it. The circumstances and the facts that we have had the opportunity to examine in the course of proceedings on the Bill, and indeed the trend, as I said in my earlier speech, of the UK being drawn in to the legal framework of a two-tier Europe but actually being neutered at the same time, increase the necessity of a proper referendum—an in-or-out referendum—so that the British people can decide whether they want to be Europeanised or absorbed, like ectoplasm, into the strange new world being created, over which we have increasingly little influence, let alone control.
This is, fundamentally, about a democratic deficit. I do not believe that the Bill will make any substantial difference to the landscape to which I referred in my previous remarks to the Foreign Secretary. A strategic mistake is being made in respect of Europe. Europe is failing. There is incredibly high unemployment in other member states: Spain’s youth unemployment, for example, is 43%. Very serious damage is being done by burdens on business—50% of all our economic regulation comes from the EU—and there is a failure to provide oxygen for the small business community in this country. The Bill does not, in my opinion, make any difference to those matters.
We have faced for some time now an economic crisis in Europe, but none of the measures—including the 2020 strategy, which will be no more successful than the Lisbon agenda, which had to be abandoned—will make any substantial difference to the mistakes and distortions associated with the European Union as it now is which continue to affect the United Kingdom. We need to renegotiate the treaties, and the Bill will not change that fact.
At the beginning of our debates on the Bill, the European Scrutiny Committee proposed to have a proper investigation into it. I am sorry that the Foreign Secretary did not feel that he could attend, but I am glad that the Minister for Europe came to see us, albeit somewhat late in the day. The Committee gave careful consideration to the Bill, but it is not evident that the Government paid very much attention to what has been described in many quarters as one of the best Scrutiny Committee reports produced in recent years. I am afraid that they have substantially ducked the issue.
I shall address a number of the points as they cropped up. Much play was made of the idea that the Bill would reaffirm the sovereignty of the United Kingdom Parliament, but when I tabled a motion to that effect the entire Conservative party, with some honourable exceptions, voted against it, which struck me as somewhat bizarre and extremely dangerous.
The European Scrutiny Committee report, which took evidence from many of this country’s pre-eminent constitutional experts, came to certain very clear conclusions. First, we noted:
“Clause 18 did not address the competing primacies of EU and national law”,
which is a matter of grave concern, and that on the evidence we received, clause 18 was “not needed”. We also concluded, on the evidence that we received, that
“If Parliament wills it may legislate to override the European Communities Act 1972 or the EU Treaties by repealing them, amending them or any provisions in them, or by clearly and expressly legislating inconsistently with them in respect of EU legislation or generally.”
That is a very important statement from the European Scrutiny Committee, because for many years it was asserted that, owing to the nature of the European Communities Act and the treaties on which it is based, with their amendments and their additions, it would not be possible for Parliament to legislate “notwithstanding the European Communities Act”. There was a movement towards the assumption—it was a dangerous habit of thinking and attitude of mind—that somehow we were locked into a situation that would never allow the United Kingdom to reassert its sovereignty in respect of European legislation.
For reasons that I have given, including the burdens on businesses, which are costing about 4% of gross domestic product, and the fact that since 1999 as much as £128 billion—it might be more now—has been lost to the British economy through over-regulation, we have to deal with these questions. That is the flipside of the idea of having a referendum on any further transfer of competences or powers. We have to deal with the existing European Union, not any future EU or any future extension of powers or competences. That is something for the future; we have to deal with the EU as it is now, and it is doing great damage, in many respects, to the UK’s national interests.
Mr Redwood
I am grateful to my hon. Friend, who as always is doing a great job on this issue. Will he agree that the legislation would be much more convincing if the very huge transfers of power now taking place—the power to regulate all our financial and banking services, the power in criminal justice and, soon, economic governance powers—were to be the subject of a referendum as a result of the Bill?
Mr Cash
Indeed, it would. For example, the fact that the City of London and its jurisdiction has legally been transferred to the EU is an indictment of the trends in the wrong direction. The landscape is changing in the wrong direction. With respect to the Foreign Secretary, the Prime Minister and other Ministers, I say that these matters need to be very carefully reviewed. All is not lost; the Bill is now going off to the House of Lords, and as I said earlier this evening, I hope that over the next few months serious consideration will be given to the impact of the European proposals on the competitiveness package, and the encroachments of European economic governance. I hope that these matters will be tackled. We need to ensure that we not only deal with future referendums, which we have been told will not happen until the next Parliament anyway—that is some years away—but tackle the crisis and the danger that we should be addressing now.
I trust that the House will not mind me mentioning that today I published a new note—perhaps I might even call it a pamphlet—entitled “Saving the British economy for the British people”. It sets out the history of the stabilisation mechanism and how it has drawn us into a dangerous situation regarding bail-outs. However, I will not go down that route now, because I want to return to what the European Scrutiny Committee said about the Bill. We concluded that
“if the legislative supremacy of Parliament is under threat, it is from judicial”
supremacy. That is the problem. It is a British constitutional problem, not only one of the assertions of the European Court of Justice; it is an internal domestic constitutional question, as Professor Tomkins made clear in his superb evidence. We said that:
“we attach weight to the warnings expressed by Professor Tomkins if the Government maintains clause 18 in the EU Bill.”
He spoke of the Bill overall as going
“out of its way to invite litigation”.
That is precisely the direction in which we do not want things to go. We need to be certain that the sovereignty of Parliament is a matter for Parliament and the people, not the judiciary or the Supreme Court, particularly in the light of the trend shown in assertions by the likes of Lord Steyn, Lady Hale and Lord Hope of Craighead, all of which we looked at in detail in the evidence that we received and the judgments reached when we concluded our review of that evidence.
Furthermore, we concluded:
“Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it has been included in the Bill is, in our view, exaggerated.”
We were also concerned about the manner in which the explanatory notes had been devised. We debated the matter at length, concluding:
“The Explanatory Notes present as fact what the evidence we have received tells us is disputed, viewed from any perspective.”
In other words, we were deeply dissatisfied with the way in which the explanatory notes dwelt on the idea of the common law principle. Indeed, I moved an amendment to clause 18 in an attempt to remove it from the framework of judicial interpretation, but that amendment too was defeated by the Government. In fact, I would say—I say this with respect to the Foreign Secretary and my right hon. Friend the Minister for Europe—that despite the soft words that the Foreign Secretary offered at the beginning of this debate, he knows well enough that we will not be put off or seduced by any flattery; we are interested in the arguments and the facts.
The European Scrutiny Committee analysed this Bill and found it wanting in many different ways. The other thing to say about clause 18 is this:
“The real point is whether a government can, in law, make it difficult for a future Parliament to amend or repeal the legislation it has passed”—
in a word, the point that the shadow Foreign Secretary made just now. We concluded firmly that
“in our view it cannot. Our conclusion therefore is straightforward—that an Act of Parliament applies until it is repealed.”
Sovereignty is not an arcane, theoretical or abstract question; it is, as I said in opening the inquiry, about the vast array of activities and functions that have been conferred on the authority of the European Union by the Lisbon treaty—a treaty that was passed by the previous Government but has since been adopted by our Government, despite the fact that we opposed its passage through the House tooth and nail when in opposition—and how they affect the daily lives of the people and businesses of this country in such a wide variety of ways, making it essential that we reassert the right of Parliament to override those provisions if they are deemed not to be in our national interest.
There is no presumption that merely because of the European Communities Act 1972 we have to accept as a matter of compulsion whatever is served up to us by the European Union. If it is not in our national interest, we must repudiate it. I see the Minister for Europe shaking his head. He knows that this is an important question, but he disagrees with me on it. I do not hold that against him; I simply say that he is wrong. There are those who will continue to argue that there is no way in which we can override European legislation, but no way will those of us who take the view that we do change our minds. We put the national interest first, and if what is being done under European Union proposals is not in the national interest, we will have to override it.
There are many aspects of the Bill, including the whole problem of the creation of a two-tier Europe and the extent to which a referendum is being denied to us under clause 4, that will cause grave difficulties for us over the next few months as we deal with the question of the eurozone and the countries that are not part of it. I regard this as a matter on which we will be judged as time goes on. On the exceptions, including clause 4, that preclude a referendum on matters that will dramatically affect the United Kingdom—such as a two-tier Europe or an accession treaty—the Committee concluded:
“the exceptions…have been drafted to allow the Government to support certain EU policies, such as strengthening of the eurozone, including through harmonisation of economic, fiscal and social measures if necessary…or enlargement, without triggering the referendum lock.”
The reality is that we will need a referendum if the creation of a two-tier Europe affects the United Kingdom in the way that we anticipate. If we are so affected, and we are put at a grave disadvantage, the responsibility will lie with the Government for refusing to allow a referendum. We are not only moving towards a situation in which the creation of a new kind of Europe is in prospect; we are on the brink of it. That landscape will not be an attractive one unless we move down the route of an association of nation states. The Foreign Secretary knows perfectly well that the arrangements in the Bill do not deal with the present. They deal only with the future, but we are confronted as I speak with the present danger of a European system that does not serve our national interest. We must meet that challenge, and meet it now.
European Union Bill
William Cash Excerpts(15 years, 1 month ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Jacob Rees-Mogg
I thank my hon. Friend for that intervention, but I think there is a slight confusion. If we have an in/out vote, and it is won by the pro-Europeans, it is a vote for the EU as it exists and with all the powers that it has. Those of us who support this referendum lock Bill do not want further powers going to the EU or to get accidentally into a situation in which we sign up to things we probably opted out of. That is the complication of having an in/out vote that is won by the “in” side but not on the issue discussed and subject to the referendum lock. That is the danger; that is the unintended consequence.
The unintended consequences go further than that. Should there ever be a Labour Government again—I am sorry to say that there probably will be, although possibly not in my lifetime—those of us who support the Bill would want them to accept it and ensure that the referendum lock held as an important constitutional change. We would also want any change to the powers of the Europe Union to be subject to a referendum of the British people. However, if the Government concerned were unpopular, as happens to Conservative Governments too—and even, possibly, to coalition Governments—and felt they had to sign up to some marginal European treaty requiring a referendum, but knew that it could result in an in/out vote, they would be more likely to repeal the Bill lock, stock and barrel and say, “Look, we cannot do that because we would then have a vote against us at the second stage.” The second unintended consequence, therefore, is that we would weaken the whole effect of the Bill by making it less likely to become the accepted constitutional practice, which is what I would very much like to see.
Mr William Cash (Stone) (Con)
Does my hon. Friend accept that this is in fact a debate about an ingenious device—I hope I am right in thinking he mentioned the word “genius”—and that it is about the principle of continuing membership? Does a question not then arise that has not yet been answered—namely, membership of what?
Jacob Rees-Mogg
My hon. Friend always puts his finger on the nub of any European matter. I agree that the new clause is a device concerning a strong principle—that is the genius and anger I was talking about. The problem is that in its anger, it could achieve the wrong result. We do not want to set our firm principles on a weak base and a new clause that would actually undermine what those of us who are supporting the Bill wish to see achieved.
I agree with many hon. Members that there may well come a time when we would want an in/out referendum, but it needs to come when it has been the subject of important and urgent debate up and down the country; it needs to come when the British electorate are marching to say, “Now is the time to decide whether we should stay in this rotten institution, corrupt as it is, or whether we will put up with it in spite of its corruption, its inconvenience and all the problems associated with it, because there are some marginal trading advantages and we have got a few sanctions against Iran”—or whatever the other arguments are in favour of it. We need to have the referendum at the right time, as a matter of a discussion of and about itself, not as a result of the random collision of atoms and following a debate on something completely separate—for example, a minor extension of some European power or competence.
Neither should an in/out referendum suddenly follow a referendum in which 20 people or 20% of people—let us be generous—have voted. Suddenly, we would have thrown all the balls in the air without any proper consideration or deliberation, and without having set out the framework for the debate we want. Those of us who are broadly Eurosceptic should oppose the new clause, because it undermines exactly what we want to achieve, and should support the general thrust of the Bill, which is designed to protect this country from further sacrifices of our authority and the people’s power. We should rightly remember—it being a referendum lock—that it is not the power and mystique of these green Benches that are being given away, but the power and mystique of the British people themselves. They are the people we should trust. We should trust them with a referendum lock, and not rush headlong out of anger into a confusing and mistaken new clause that would undermine this lock that we are giving to the Great British people.
Mr Hollobone
I am grateful to my hon. Friend for that intervention because he has hit the nail on the head. In the few times I have had the misfortune to go abroad, whenever I come back into this country, I always try to do so without coming through the European Union section. I have been told several times that a British passport holder has no choice and has to go underneath the blue flag with the yellow stars. I just think it is a huge shame that our country has come to that.
The Minister gave the game away early on when he had difficulty responding to my perfectly reasonable request that Her Majesty’s Government undertake a comprehensive audit of the costs and benefits of our membership of this European club. I would have thought that everyone would be in favour of such an audit. After all, if the argument for being in the European Union is so strong, why not get the evidence together and put it to the British people? Those who feel strongly that the time has come to leave the Union would also like to see the facts and figures presented. I perfectly understand that it is going to be apples and pears, and that some things are not perfectly calculable, but Her Majesty’s Government should at least make some kind of effort to tell the British people why it is so important for us to remain in the EU. As far as my constituents and I can see, the membership subscription is now too high, we have no effective control over our borders with the EU, and business and other institutions in our country are being strangled more and more, month by month, by the red tape emanating from Brussels. It is time that it stopped.
Mr Hollobone
I cannot think of a single reason—a straight answer to a straight question—and my Kettering constituents would greatly welcome the repatriation of powers that we have given away all too freely. Another example is the disgraceful common fisheries policy. I notice that a Department for Environment, Food and Rural Affairs Minister is now on the Treasury Bench; he is doing his best in Brussels to try to end the scandal of fish discards, but it is like pushing water uphill. We are not going to get anywhere with Brussels because it will not see sense on these issues. If I were to ask my Kettering constituents whether we should repatriate our powers over Britain’s fishing waters, there would be an overwhelming vote to do just that. We have given all these things away.
Kate Hoey
I am sorry that I missed the contribution made by my right hon. Friend the Member for Leicester East when I had to leave the Chamber. We were both in Europe for a short period when my time in the Home Office coincided with his time in the Foreign Office, so I know his views on the matter and I am pleased that he has them.
I genuinely do not understand what we are afraid of, and neither do the public, particularly those who are strongly in favour of a referendum. What is the problem? We can no longer put it down to cost, because we are having this ridiculous referendum on the voting system, which most people are bored silly with—they yawn when it is brought up, even at political party meetings. I accept that it was set out in the coalition agreement, but there is no huge enthusiasm for that referendum, and yet we are spending so much money on it.
A referendum on the European Union would revitalise the political debate within this country. We would enliven things and go back to days of having public meetings. I accept what my hon. Friend the Member for Bassetlaw (John Mann) said about the economic problems the country faces, but I do not think that having a debate on the EU would be a diversion. It would be a way of showing that there are other ways of running this country’s whole economic policy. We would get that debate and get out there among the people, because I know that they feel strongly about it.
I will not speak much longer, other than to say that I have been quite proud—others will laugh—to be associated with the campaign on the in/out referendum run by the Daily Express. As some Members might already have mentioned, yesterday a number of us took 373,000 envelopes, which had been returned from across the country, containing the slips published in the Daily Express asking for an in/out referendum. Those were just the envelopes, so many more were sent via e-mail. I think that we should be proud of the fact that a newspaper has managed to arouse that debate, and I would not care whether it had been done by the Daily Express, the Daily Mail, The Daily Telegraph, The Sun or even the Daily Mirror.
The hon. Member for Aldridge-Brownhills (Mr Shepherd) talked about a growing mood in the country. We can sit here in isolation and ignore that mood, or we can grab it and lift it as an opportunity to get some decency and honesty back into politics. We should get that debate and have a referendum at some stage on whether we are in or out of Europe. I know that the Whips do not want Members to vote for this small new clause, but I say to Government Members that I have opposed my Whips on many occasions and am still alive and still here. To vote for it would send out a little signal that the issue will not go away.
Mr Cash
For me, the debate is not about the wording of the new clause, but about a question of principle. It is also about whether we are a democratic nation. As my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) pointed out, and as many of us have argued for so many years, the question of why we are here in this House, ultimately, is entirely dependent on our relationship to the electorate. This is about democracy, not government.
We began our proceedings on the question of sovereignty some time ago, when we debated clause 18. In that debate, I made it clear—I believe that we won the argument—that the real question was whether this country would be able to govern itself or would end up being increasingly governed by judicial supremacy, and the European Scrutiny Committee report clearly demonstrated that point. For those of us who watched, for example, the recent BBC 4 programme on the Supreme Court, there is no doubt at all about the attitudes of some of the Justices in the Supreme Court and of many senior academics who are deeply influential in the Foreign Office and elsewhere. I know that the Lord Chancellor and Secretary of State for Justice, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), understands that extremely well; I have heard him say so.
Mr MacShane
The hon. Gentleman says that the previous and current Chancellors entered into an unlawful act. Is he saying that the current Chancellor of the Exchequer is a criminal?
Mr Cash
That is an absurd comment. I am speaking in terms of the vires of the treaty. It is a different question; it is nothing to do with what the right hon. Gentleman has said. It was a serious misjudgment. It was an agreement that cannot be justified by the legal base. The European Scrutiny Committee said in its report that the agreement on that particular mechanism was legally unsound. That is what I mean. It has exposed the British taxpayer to a very significant sum of money.
However, that is just one example. The real question, ultimately, is one of democracy and trust. It is a matter of principle, and that principle is demonstrated by what happened in respect of the Lisbon treaty. We stood here in this House, month after month, debating the Lisbon treaty. I tabled perhaps 120 or 130 amendments. We united the Conservative party: for the first time since 1972, we had complete unanimity. Of those with a different view, only one is still in the party now—the others have all fled to other parties—and he is the Lord Chancellor and Secretary of State for Justice. He is entitled to his view and I respect him for the consistency with which he pursues it, however much I may disagree. The Conservative party was united in opposing every aspect of the Lisbon treaty and united for a referendum, and we voted accordingly. For reasons that have been put forward, but which I simply do not accept, that promise of a referendum was torn up.
Other promises with regard to the European issue—promises made in our manifesto—have not been sustained. These are serious matters. It is no surprise that the people of this country lose faith and trust in their politicians if such decisions are taken. This applies just as much to the Labour party or the Liberal Democrats. Broken promises are broken manifesto promises. Manifesto promises are the basis on which people ask to be elected and get into this House to represent the interests of the people who vote for them in the polling booth. If we break our promises, it is hardly surprising if the people of this country begin to feel a sense, first, of unease, and then of contempt for the political system.
This is constitutional reality, but also practical reality: it affects people in their everyday lives. We heard from the hon. Member for Vauxhall (Kate Hoey) about the working at heights directive. We heard from the hon. Member for Bassetlaw (John Mann) about the posted workers directive. We have heard about the working time directive, the nurses agencies directive, and so on. The EU affects every single corner, every single nook and cranny of our lives, and we appear to be powerless to do anything about it.
A few days ago I got the figures from the Library on the balance of trade between ourselves and the European Union. They are alarming. In relation to the 27 member states, between 1999 and 2009—it has got very much worse in the past 18 months—we had an imbalance of £5 billion. With the rest of the world, we have had an improvement of £11 billion. There is a message there: you cannot trade with a bankrupt organisation if you are a successful company. The European Union, with its low growth, its riots and protests, and its failure, demonstrates why a referendum is required, as the new clause says, on the question of
“continuing United Kingdom membership of the European Union”.
For me, this is not just a question of in or out, but of to be or not to be a democratic nation state. This is not a matter to be trifled with.
I have profound views about the manner in which the coalition Government are dealing with this issue. As the Minister for Europe said in the debate last week, the Government have a European Affairs Committee, two thirds of which is Conservative and one third of which is Liberal Democrat. I pointed out to him that that Committee clearly could not have a vote, because we would win every time and we would have the policies that we stood on in our manifesto. So who is wagging the tail? It is clearly the one third of the Committee that are Liberal Democrats, combined with the instincts of those on our side of the equation who want more Europeanisation, although they disclaim it. That is another problem for us.
In Prime Minister’s questions a few weeks ago I asked why it is that at every turn, whenever an issue of integration comes up, we always go in the wrong direction. Why has repatriation been rejected? It is the repatriation of powers, using the well-known formula—notwithstanding the European Communities Act 1972—that would enable us to re-grow our economy and answer the question that is now before the Chancellor of the Exchequer: why is our economy not growing? We can tell him that it is not growing because 50% of our trade is with the European Union, which is itself in deep trouble and has low growth. At the same time, we cannot grow our economy because we are strangled to such an extent by the red tape of Brussels. Those two situations can be retrieved only through a new relationship between us and the European Union.
This is not just a constitutional argument, but an argument of practicality. It is an argument of to be or not to be a democratic nation state, a great sovereign state and a successful country that represents the interests of the people we serve—not ourselves. As I have said so often, it is not our Parliament, it is their Parliament. They are entitled to know that if things have not gone right—things certainly have not gone right with Europeanisation—we have an absolute obligation to ask them for their opinion. That is democracy, that is trust and that is what will restore integrity to this House and the British political system.
Mr MacShane
I have considerable sympathy with the speech of the hon. Member for Stone (Mr Cash). A year ago, his party was Cash and Carswell; now it is Clegg and Cable. His party has surrendered the authenticity of its position on Europe for the marriage of convenience with the Liberal Democrats. That is his problem, not mine.
I am not so sure that the European Union is to blame for the fact that we alone of the major European Union economies have zero growth, inflation of 3.6%, a shrinking currency and rising unemployment. This House and this Government could at a stroke tomorrow cut taxes, abolish national labour laws that they do not like and do whatever they think might turn this situation around. I gently suggest that perhaps it is the economic management that needs to be looked at.
I want to address the fundamental point that was made by the hon. Member for Stone and my hon. Friend the Member for Vauxhall (Kate Hoey), who has left her place. Should this democracy be based on plebiscites and referendums, or on the authority of this House? In recent days, the issue that the people of Britain have been in touch with me about is the selling off of Sherwood forest, our woods and our free forest lands to private interests. Perhaps I would like to respond to them by saying, “Let there be a referendum on this issue.” Previously, the issue about which people were in touch with me was the tripling of student fees, on which one of the coalition parties broke, in the most fundamental and flagrant way, a solemn promise that it had made and signed in public. We have no mechanism to have a referendum on that matter. I could also mention the education maintenance allowance.
European Union Bill
William Cash Excerpts(15 years, 1 month ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Chris Heaton-Harris
Indeed. I know that there is to be a Backbench Business Committee debate on the matter in the not-too-distant future, in which I hope that Members across the House can voice their concerns about that ruling.
I return to the proposal to move one part of the Bill from clause 10 to clause 7. I was speaking about the indirect effects on the United Kingdom that the accession of the EU to the EHCR might have. When the accession takes place, the EU will be able to be taken to the European Court of Human Rights, which will undoubtedly lead to more cases, more cost and impact and, most importantly, more jurisprudence on EU law.
I am seeking not to upgrade the requirement for scrutiny, but to maintain the present level. Furthermore, I am concerned that in clauses 6 and 7, a few article 48(7) ratchet decisions are not caught by the Bill. Such decisions would be those applying to the EU’s ordinary legislative procedure where the EU treaties currently require a special legislative procedure, and the existing special legislative procedure does not require unanimity in the Council. In other words, while a switch in EU legislative procedure would be taking place, it would not involve abolition of a veto because a veto did not exist in the first place. However, the EU’s ordinary legislative procedure entails the European Parliament having co-decision rights with the Council. It can table amendments to a proposed law and veto the Council’s desired law. In general, a switch to the ordinary legislative procedure would take EU decision making further out of the hands of national Governments and give greater power to a supranational institution.
The article 48(7) ratchet clauses not covered by the Bill would confer new co-decision rights on the European Parliament in a few areas of EU law that I shall list now, and many more. Article 23 provides that every EU citizen has the right to diplomatic protection. We had a debate on what that might mean to the individual. I am speaking now about our power to scrutinise such decisions. Article 182(4) allows the Council to adopt, through qualified majority voting, but only after consultation of the European Parliament, specific EU research and development programmes. These must accord with the multi-year EU framework programme for research and development that is decided through the ordinary legislative procedure, but the decision on specific programmes sets their duration, the precise financial contribution by the EU—essentially by us—and the detailed rules for implementation. Furthermore, article 349 provides that the Council can adopt legislative measures on how EU treaties apply to areas known in wonderful EU parlance as the outermost regions. The way in which such specific decisions are dealt with in the Bill would be a retrograde step for democratic control, hence my amendment.
Mr William Cash (Stone) (Con)
I rise to support my hon. Friend the Member for Daventry (Chris Heaton-Harris) in the arguments that he has adduced. Since the Maastricht treaty, I have been gravely concerned about the operation of co-decision, and that is the best part of 20 years ago. The bottom line is that the situation has become increasingly difficult and unacceptable. The European Parliament, which is not a real Parliament at all—I see the Minister sighing. He cannot understand that the difference in the manner in which the European Parliament is elected, the difference in its procedures, the extent to which it holds Ministers to account, the intrusion of the process of proportional representation and the manner in which that operates, and many other aspects of the institutional difficulties and the democratic deficit that exists in the EU, are all part and parcel of the necessity to retain control in the hands of the national Parliaments. Unfortunately, for all the reasons given by my hon. Friend, for these specific matters there is an extension of this strange creature which used to be called co-decision, but which now, in typical Eurospeak, has become the ordinary legislative procedure. It is not ordinary at all, it is quite extraordinary, and it is not a legislative procedure in the sense in which we are legislating in this House.
The Temporary Chairman (Martin Caton)
Order. May I ask which amendment the hon. Gentleman is speaking to?
The Temporary Chairman
Order. The hon. Gentleman knows that when we are dealing with amendments, we deal with the amendments, not with general principles. If he could come on to the amendments in the group, I would be grateful.
Mr Cash
I am dealing specifically with amendment 24, moved by my hon. Friend the Member for Daventry, and supporting his arguments. My amendments are, in general terms, supportable in accordance with the arguments I have set out, and I have no further comments to make on them at the moment.
Mr Nigel Dodds (Belfast North) (DUP)
On the point made by the hon. Member for Daventry (Chris Heaton-Harris) about needing an Act of Parliament as opposed to a resolution of both Houses, is not one of the advantages of such a course that it gives more time for scrutiny, and that an Act is amendable in a much greater way than a mere resolution? Given the importance of the issues that the hon. Gentleman outlined, it is vital that measures to do not get passed into law here in the UK indirectly or by accident, or by unintended consequences, as so often happens.
Mr Cash
That is exactly the point. The combined effect of the amendments that we are discussing is directly related to what the hon. Gentleman says and to what my hon. Friend the Member for Daventry said. It is about time that the Committee understood that the importance of these debates is not being reflected by the votes or by the Government’s attitude. So far, they are not accepting any of the amendments. The European Scrutiny Committee has produced a report, and most of the amendments arise from it, including the ones we are discussing. My hon. Friend is a member of that Committee, and other members of the Committee are here as well. The net result is that we are not discussing the amendments properly.
The Temporary Chairman
Order. The hon. Gentleman seems to be talking about clause 9, but we are talking about two specific amendments to clause 7.
Mr Wayne David (Caerphilly) (Lab)
I would like to address my remarks to clauses 7, 8, 9 and 10, rather than to the amendments.
Mr Lidington
There is a clear statement on the face of the treaty that the EU shall accede to the European convention on human rights, and the Government’s position is that we accepted that statement and that commitment as part of the Lisbon treaty. As I hope to explain shortly, the law and our procedures in this House provide a number of safeguards that, I believe, will enable the House of Commons and the other place to scrutinise in detail any proposal for accession when it comes forward.
Mr Lidington
I will give way, but a large group of amendments is listed on the Order Paper for consideration later today, and those amendments stand in the names of many hon. and right hon. Members. I want to try to limit my comments on the early group so that we have time for a thorough debate on those amendments on justice and home affairs, which I think the Committee would expect.
Mr Cash
I have already been helpful to the Minister in limiting my earlier remarks. Having said that, I would point out to him that this afternoon the European Scrutiny Committee has considered the document, “EU Accession to the European Convention on Human Rights”, and set out in full, for the purposes of ensuring that the House is properly informed about what all the arguments amount to, both the questions and answers that he has given to that Committee. In particular, we include his letter of 30 June, our letter of 8 September and his letter of 21 September, and the detailed matters that arose on that, which take up two pages. We include our letter of 27 October and the explanatory memorandum of 15 November. The idea that the Minister can slide past this—
The Temporary Chair (Martin Caton)
The hon. Gentleman is supposed to be making an intervention, not a speech.
Mr Lidington
I look forward with relish to studying the European Scrutiny Committee’s conclusions.
There are already a number of ways for the Government and Parliament to exercise control over the precise terms of the EU’s accession agreement. Article 218(8) of the TFEU makes it clear that accession would be subject to unanimous agreement by the Council and that the Council’s decisions to conclude the agreement cannot enter into force until it has been approved by all member states individually and in accordance with their respective constitutional requirements, which are entirely a matter for each member state.
In addition, all EU member states are also parties to the European convention on human rights in their own right and will also be parties to the accession instrument. As with any other treaty to which the UK is party, the final accession agreement will be subject to the procedures under part 2 of the Constitutional Reform and Governance Act 2010—the codification of the Ponsonby procedures. That requires the agreement to be laid before Parliament for 21 sitting days, during which time either House may resolve that it should not be ratified. On top of those two levels of control, clause 10 of the Bill will add an additional layer of accountability by requiring a positive vote in favour of the agreement in each House before the UK could approve the EU’s decision to conclude such an agreement.
The Temporary Chair (Martin Caton)
That brings us to the debate on clause 7 stand part. If I am reading the feeling of the Committee correctly, I shall allow this to be a fairly wide debate, obviating the need for further stand part debates on the later clauses. If we all understand that, I shall show considerable laxity.
Question proposed, That the clause stand part of the Bill.
Mr Cash
I shall discuss my earlier point about EU accession to the ECHR in the context of the broad view that you, Mr Caton, have taken about the necessity to get some of these issues out in the open. I shall also refer to the document that I cited in my intervention on the Minister, because we discussed it in the European Scrutiny Committee today. The document is a Council decision, the object of which is to authorise the European Commission to start negotiations with the Council of Europe on the EU’s accession to the European convention on human rights. Our Committee reached the stage of a first report.
Chris Heaton-Harris
I very much apologise for not being at the European Scrutiny Committee meeting, but I was getting ready for this session. Government Members are giving the Bill the appropriate amount of scrutiny, but, looking at the Opposition Benches, I wonder whether anybody on that side cares.
Mr Cash
I could not agree more. My hon. Friend is right, and I am glad that the Minister also nods in agreement, because the accession is hugely important. I understand entirely that the Minister has a view about it. He has also heard the very good arguments that my hon. Friend the Member for Daventry (Chris Heaton-Harris) has made on the specific questions that arise. The Minister knows that it is a contentious issue, not least because we are also dealing with the interaction of the European convention on human rights, which came up in the statement on terrorism only an hour or so ago in this very House, and the crucial balance between security and freedom. We do not need to discuss control orders and counter-terrorism now, but I simply make the point that an enormous body of law could be affected by this.
The shadow Minister for Europe, the hon. Member for Caerphilly (Mr David), is attentive, was a member of the European Scrutiny Committee and is taking an interest in the debate. Of course, he has to be here, but I think that he would be here anyway. I find it strange that the Chamber is almost completely empty when we are considering these incredibly important issues, and it would be interesting to know whether there is any reason why. I am glad to welcome my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), who also has great knowledge of these matters. I hope that he will contribute to the debate, because we have just discussed this point in the European Scrutiny Committee, so it is an opportune moment for us to look at the principles involved.
The Government support accession by the EU to the ECHR, as the Minister indicates. I am sorry that we got a little tetchy, but he gave me the impression that he wanted to move on from the subject fairly quickly, and I understand the necessity to move on to later amendments. Our entire proceedings, despite some considerable reservations on the one hand and downright hostility on the other, have been conducted in a civilised manner and in accordance with what I hope debates in this House should consist of, but we need to take a good look at what the provision implies, and this clause stand part debate gives us the opportunity to do so.
According to the Secretary of State for Justice and Lord Chancellor, accession will close the gap in human rights protection as applicants will for the first time be able to bring a complaint before the European Court of Human Rights directly against the European Union and its institutions for alleged violations of ECHR rights. It will enable the European Union to defend itself directly before the European Court of Human Rights in matters where EU law or actions of the EU have been impugned.
The Secretary of State also says that accession will reduce the risk of divergence and ensure consistency between human rights case law between the European Court of Human Rights and the EU’s Court of Justice in Luxembourg. That is very important. Furthermore, he says that the EU will be bound by European Court of Human Rights judgments in cases in which it is a respondent, and like other contracting parties to the ECHR the EU will need to have regard to the Strasbourg jurisprudence.
I have heard the Secretary of State for Justice express views, albeit in other circumstances, in which he has raised concerns about the extent to which the judiciary is impinging on the sovereignty of this House, and I take him at his word. If he believes that, he might also consider that the EU will have to have regard to Strasbourg jurisdiction. Sovereignty, which we have debated at some length in relation to clause 18, is directly involved in that issue.
I do not need to repeat any arguments that I set out in relation to clause 18, and I have no intention of doing so, but the principle is about the use of jurisprudence from Strasbourg or the European Union Court, the European Court of Justice, and its effect on the legislative process in this House. There is also a constitutional question for the United Kingdom about the manner in which our judiciary is using Strasbourg precedents and importing them to their judgments in our courts. The Lord Chief Justice recently criticised that, because he is worried about the impact of accession on the manner in which we make our decisions and the invasion of common law precedent.
Stephen Phillips (Sleaford and North Hykeham) (Con)
I hesitate to intervene on such an erudite speech by my hon. Friend, but one problem that the Minister might want to consider in the context of the clause is that accession by the EU to the convention will create essentially co-ordinated jurisdiction over some areas between the European Court of Justice on the one hand and the Strasbourg Court on the other. Indirectly, therefore, it might affect the rights of this place, because more law and jurisprudence will come from both Courts, and that might interfere with the way in which we conduct business and are expected both to represent our constituents and to make our own laws consistent with accepted doctrine of parliamentary sovereignty. I have intervened now because I think my hon. Friend will agree with that point.
Mr Cash
Absolutely, and it could not have been better put. I am grateful to my hon. and learned Friend, who is Queen’s Counsel after all, as well as a distinguished member of the European Scrutiny Committee. He has been following the matter with great interest and makes the point very well.
There is a further point to make about the statement by the Secretary of State for Justice. He says that, additionally, European accession will mean that individuals who argue unsuccessfully in the European Court of Justice that the European Union has breached their fundamental rights—I stress “fundamental”—can, subject to the usual admissibility requirements, complain to the European Court of Human Rights that the EU has violated one or more of convention rights. The risk of confusion in that melee—that dual jurisdiction—is a serious potential problem. The Secretary of State for Justice went on to say that European Court of Human Rights judgments will be binding on the European Union as a respondent to the proceedings.
The Government, apparently, do not expect the European Union’s accession to the ECHR to have any direct impact on UK law. As article 6(3) of the treaty on European Union confirms, the fundamental rights guaranteed by the ECHR already
“constitute general principles of the Union’s law.”
However, importantly, the Secretary of State for Justice concedes that an adverse judgment against the EU by the European Court of Human Rights may require the EU to amend its legislation to protect individuals’ fundamental rights in a way that will have consequential implications for UK law. That is why I not only have sympathy for what my hon. and learned Friend said, but refer back to the Minister’s assertion that it will not have implications for EU law.
As I said, we have had a number of exchanges with the Secretary of State for Justice. It is best if I pick out one or two of his points from the correspondence, all of which will be set out for the benefit of Members. I am delighted that the hon. Member for Birmingham, Edgbaston (Ms Stuart) has come to swell the ranks of Labour Back Benchers, whose presence would otherwise be non-existent. Unfortunately for the Minister, it is just possible that she will agree with what we are saying, but we will wait and see.
In the letter of 30 June, of which I am sure the Minister is aware, the Secretary of State for Justice wrote to the European Scrutiny Committee, advising that the EU had adopted this mandate. He went on to explain that the Government support EU accession and made the remarks that I summarised earlier. We replied to him on 8 September stating that the EU’s accession struck the Committee as potentially a significant development in its internal legal order—despite treaty provisions to the contrary—and that it would amount to submitting the acts of EU institutions to independent external control by the ECHR. We also said it was a potentially significant development in the way in which EU citizens’ human rights are protected. We used the word “potentially” deliberately because it was difficult on the information before us to know how much the EU’s accession to the ECHR would be a symbolic gesture and how much it would lead to practical changes for United Kingdom citizens.
At this point, it is worth saying that these changes are not just generalisations, but that serious fundamental changes are being brought about by the manner in which the accession proposal is being put through. It is Government policy and it has significant implications for the daily lives of people. It is difficult in a debate such as this to give specific illustrations because the nature of the debate more or less precludes one from doing so. We are supposed to be talking about the generality of the constitutional change. However, I simply want to put on record that it will have a significant impact on the practical lives of the people whom we represent. That is the key reason for raising these issues.
We went on to note that the Cabinet Office guidance recommended that Departments should provide the scrutiny Committees with
“details of negotiating mandates as soon as they have been approved”.
We were grateful for the explanation of the Secretary of State for Justice on how the Government view these matters. We asked him to explain further how the current gap in human rights protection will be closed by accession, and what he meant by the word “directly” when he said:
“applicants will, for the first time, be able to bring a complaint before the European Court of Human Rights”—
that is the Strasbourg Court—
“directly against the EU and its institutions for alleged violations of Convention rights”.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)
This may be one of the rare occasions when those on my Front Bench do not object to my intervention. I really do not know what the hon. Gentleman is going on about. I have tried to read clause 7 again. Let us go back. The fundamental charter of rights was introduced because of the judgment against the European Union as an institution over Gibraltar. Rather than signing up to the ECHR, which would have been the logical and consistent thing to do once we had given it legal personality, we now have two systems. In the UK, we are signed up to the ECHR. I would have preferred it if the EU had signed up to the ECHR. The charter of fundamental rights gives additional rights. I singularly fail to understand the point that the hon. Gentleman is making because the situation is no different.
Mr Cash
I am expressing the view of academics who have studied this matter, perhaps more than the hon. Lady. [Interruption.] I am not making any personal assertions. I am just saying that the evidence that we have is that the charter will lead to legal uncertainty over how human rights are applied in Europe by introducing the additional standard of fundamental rights. I am not criticising the hon. Lady, but simply replying to her question by expressing the view that is taken in academic circles.
Stephen Phillips
Does my hon. Friend agree that the problem that is being expressed is that there will be two competing and overlapping systems, adjudicated upon by two different Courts, which is potentially a recipe for disaster? I think that is the point that he is seeking to make.
Ms Gisela Stuart
I accept that there is a potential conflict, but given that we are already a signatory to the ECHR and that the EU is already a signatory to the charter, none of this adds to the complexity—the complexity already exists.
Mr Cash
I accept that. That complexity does exist, and part of the difficulty with the whole issue of human rights, whether in relation to accession, the charter or the jurisdiction of the Courts, is shown in the comments of the Lord Chief Justice in his Judicial Studies Board lecture. He said to the entire judiciary, “Brothers and sisters”, referring to the other judges—[Interruption.] Well, that is their language. He said, “Brother and sister judges, will you please take note that our first obligation is to have regard to the manner in which we come to our decisions in the light of common law precedent?” He warned them against adopting Strasbourg’s precedents as a means of arriving at decisions in our own courts. He actually used the words, “We must beware”. I therefore entirely agree with the hon. Lady and with my hon. and learned Friend the Member for Sleaford and North Hykeham, and with the views expressed in the European Scrutiny Committee’s report that has come out only this afternoon.
Mr Richard Shepherd (Aldridge-Brownhills) (Con)
There is indeed a conflict of courts, which has been a matter of considerable concern for a number of years. It is the oldest question of all—who is the master? Where there is a conflict between a constitutional court—the European Court—and a human rights court, who prevails? That is the lack of clarity that exists and the worrying aspect for many people. It has been much talked about in the European Parliament in recent years.
Mr Cash
Indeed, and I add that my hon. Friend, who is a member of the Joint Committee on Human Rights, has been manfully seeking to contain the tsunami of opinions expressed in that Committee about the continuing onward movement towards accession of the type that we are discussing here and about the human rights culture and all that goes with it.
Mr Shepherd
I am not a lawyer, as is evident, but the great difficulty is that we have a common-law tradition, and the European tradition is civil law. Those are totally different ways of looking the world. It is the case law that I am worried about.
Mr Cash
Indeed, and that is because the abstract principles contained in the charter, the ECHR convention and so on have developed a completely different type of law from ours. In a way, this debate illustrates the difficulty that exists. I say to the Minister that as ever, the Government are acquiescing in greater movement towards the human rights culture.
I may say that if anyone knows of my record in relation to matters such as this, they will know that nobody is more likely to want to defend the rights of individuals. All Members are devoted to trying to ensure that there is proper protection. The trouble is how to get to that point. I believe, for example in relation to terrorism, that if we legislate in Westminster according to the principles of habeas corpus, due process and fair trial, and according to our established procedures, we can be sure that no suspect will be ill-treated in our prison cells, however much potential circumstantial evidence there is against them.
Habeas corpus is the first duty of the judge. Ask any senior judge and he will say, “My first obligation is to apply habeas corpus.” He would go straight down from his chambers to the prison to make absolutely certain that a person was not being ill-treated. If a writ of habeas corpus is issued, that is that. It is one of our most fundamental protections of liberty for the citizen. A great deal of human rights legislation, and all that goes with it, is moving us away from that. There are also political judges in other countries. There are different systems of law, yet we are acquiescing in a process of change away from our established system.
It is difficult to grasp the broad sense of what is happening, but it has a direct impact. However, the Government are acquiescing in it on a significant scale. That was why, when I was shadow Attorney-General, I proposed the repeal of the Human Rights Act 1998. That was our policy up to the time of the coalition agreement, and the Prime Minister himself repeatedly said that he thoroughly endorsed it. It was Conservative party policy, but under the coalition it has been abandoned, which seems a big jump. In addition, during the debates on the Bill we have seen further acquiescence in the process of moving towards the abstract principle, instead of the concept of the common-law precedent, which my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) mentioned.
Kwasi Kwarteng (Spelthorne) (Con)
My issue with my hon. Friend’s eloquent speech is that I do not understand the word “process” that he has been using. We are already under the convention regime. Whether we are in or out of that is a boundary question. He might want to get out, but that is a different debate. Nothing he can do to amend the Bill will fundamentally alter the fact that we are already signed up to the “process”.
Mr Cash
With great respect to my hon. Friend, he came into the Chamber somewhat after my hon. Friend the Member for Daventry (Chris Heaton-Harris) explained why he wanted to amend the Bill to ensure that we retain greater sovereignty in relation to certain matters arising under the European convention. I do not criticise my hon. Friend the Member for Spelthorne (Kwasi Kwarteng) for coming in a bit late, but we have already discussed that matter—we are now on clause stand part and the general question of the principles on which the convention operates. Does my hon. Friend want to intervene again?
Mr Cash
Certainly. My hon. Friend says, “We are where we are.” In this debate and in the debate on the individual amendments, the Committee is dealing with some very important principles, including the principal question of the shift of accession. Therefore, it is important for us to explain and illustrate, by reference to documents, which I am not going through in detail, and by general principles, that with regard to the charter, the European Court of Justice, the European convention on human rights and the Strasbourg Court, there are important questions that will affect the constituents whom we serve.
For example, the Minister has told us that the only way that individuals can argue in the Strasbourg Court that the EU has breached their human rights is to bring proceedings against one or more member states. His answer to the question, “What do you mean by ‘directly’?” was that once the EU has acceded to the convention, it will be possible for the EU itself to be the respondent and to defend claims in its own name. When we asked how accession will reduce the risk of divergence and ensure consistency between human rights case law, Strasbourg and Luxembourg when article 52(3) of the charter specifically allows human rights law to provide “more extensive protection” than the ECHR—my hon. and learned Friend the Member for Sleaford and North Hykeham referred to that—we were told that the EU must have regard to Strasbourg jurisprudence.
Our problem over and over again is that the answers that we get are a further extension of the principles that move us away from common law and precedent, and that instead absorb us into a system of law, judgments and courts that operate on abstract principles. It is as simple as that. That is the key question. When there is a divergence between the two Courts, those problems will become more conflated and confused.
Another question was how the EU autonomous legal order will be preserved in light of European Court of Justice opinions in certain cases, which I will not go into in detail. In a nutshell, we are grateful for the Minister’s replies, which are included in the European Scrutiny Committee’s report so that anybody who wants to read them can do so. I quite understand that those who have come into the Chamber very recently did not hear the arguments advanced by my hon. Friend the Member for Daventry and the specific issues that he raised.
Kwasi Kwarteng
If the remarks of my hon. Friend the Member for Daventry (Chris Heaton-Harris) were so fundamental, why did he not press his amendments to a Division?
Mr Cash
The short answer is that my hon. Friend the Member for Daventry did not do so because he had dealt with the questions that needed to be dealt with in relation to those amendments. I am concerned with the broader issue of the relationship between the European Court of Justice and the European Court of Human Rights in Strasbourg. That is the principal question in a clause stand part debate, which is why I am dealing with it now. That ought to be of great concern to the House, which is why the ESC has produced a special report and why I have gone into the detail in this debate rather than in a debate on specific amendments.
Chris Bryant
It is a delight to agree with my hon. Friend. I do not think that she and I have ever agreed on anything before. That is perhaps a slight exaggeration; I think we agreed that a Labour Government were better than a Conservative one.
Many thanks for calling me to speak, Mr Evans. I think I have made my one point eight times now, and that will probably suffice.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Decisions under Article 352 of TFEU
The First Deputy Chairman of Ways and Means (Mr Nigel Evans)
With this it will be convenient to discuss the following:
Amendment 26, page 7, line 7, leave out subsections (5) to (7) and add—
‘(5) This subsection is complied with if—
(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to support a specified draft decision and is of the opinion that the decision relates only to one or more of the following purposes—
(i) to make provision equivalent to that made by a measure previously adopted under Article 352 of TFEU, where that previous measure was adopted following the commencement of section 8 of the European Union Act 2011 and the draft decision relating to that measure was approved by Act of Parliament;
(ii) to repeal existing measures adopted under Article 352 of TFEU;
(iii) to consolidate existing measures adopted under Article 352 of TFEU without any change of substance, where those existing measures were adopted following the commencement of section 8 of the European Union Act 2011 and the draft decisions relating to those measures were approved by Act of Parliament; and
(b) each House agrees to the motion without amendment.’.
Amendment 43, page 7, line 7, leave out subsections (5) to (7).
Clause stand part.
Mr Cash
The amendments have been tabled by my hon. Friend the Member for Daventry (Chris Heaton-Harris) and myself, as well as several other Members, including my hon. Friends the Members for Aldridge-Brownhills (Mr Shepherd), for Harwich and North Essex (Mr Jenkin), for Wellingborough (Mr Bone) and for Northampton South (Mr Binley), and the right hon. Member for Belfast North (Mr Dodds) of the Democratic Unionist party.
We are dealing with a very broad provision in the treaty known as article 352, which is generally described as a flexibility clause but which has an ancient and controversial history. Even back in the 1970s, before I came to the House, when I was practising law, I was discussing a very controversial provision known as article 308, and I shall tell hon. Members why. When, in our legal processes and legislative procedures we pass laws, we do so on the basis of what is stated in an Act of Parliament and we consider the words. Some of the remarks I made in the previous debate on clause 7 about abstract principles are related to this issue. Ordinary statutes, particularly in the field of administrative law, frequently make certain provisions after a whole series of propositions in different sections. Right at the end, there is often an expression such as, “And all such measures as may be regarded as reasonably necessary to carry out these functions,” but they are very carefully constrained by the administrative court, and the tests are quite significant. If there is a catch-all provision that has the effect of enlarging the existing treaty arrangements, it is incredibly important to make sure that what is included can be justified and has proper authority.
In the context of legislation that comes to the House and thereafter affects the daily lives of the electorate, we already know, for reasons that I do not need to enlarge on, that the manner in which legislation is implemented could, in a nutshell, be one or two lines or a paragraph in a treaty that are equivalent to an entire Act of Parliament. With that comes a whole process of interpretation that is different from our own, because it is not necessarily precise and because it looks at purposes—it has a purposive quality. Then there are provisions relating to subsidiarity that generally are not adhered to.
When we are dealing with a specific treaty and considering its wording and range, we should ask, when it becomes part of UK legislation through section 2 of the European Communities Act, as enforced by the courts and their system of interpretation, how far and to what extent it was anticipated that the legislation being spelt out, even in a treaty, would result in certain consequences in terms of the precise policies that will emerge from the process. It is incumbent on us to implement the law, under section 2, but at the same time there is a great degree of collateral within which the actual provisions in a treaty are brought into effect, and there is also their effect on the people to consider. In many instances, people could not reasonably have been expected to know exactly how that provision would turn out in policy.
I happen to be a bit of a traditionalist and I think that when we pass legislation it should be consistent with policy making, but sometimes I think that my hon. Friends—I say this with great respect to them—are not necessarily quite as conscious when considering such issues about the direct impact of it all on the electorate, or about the degree of discretion that we are giving both to the European Union and to Ministers in implementing these sorts of provisions.
What is the effect of article 352? I shall explain my concerns about the Bill in relation to that wide-ranging provision, and I shall quote from article 352. It is important to set that out, as it is the framework for my general concern. Article 352 states:
“If action by the Union should prove necessary”—
that is a big question; who says?—
“within the framework of the policies defined in the Treaties”—
which have an enormously wide ambit, including what they involve, their purpose, nature and interpretation—
“to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously”—
that is important—
“on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.”
The article continues:
“Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament”—
not Ministers, though they have the right to determine whether or not they will apply the unanimity rule.
There is then a provision stating that where subsidiarity arises,
“the Commission shall draw national Parliaments’ attention to proposals based on this Article.”
The article goes on to say that such measures shall not entail the harmonisation of member states’ laws or regulations where the treaties say that there should not be such harmonisation. Finally, it states—this is important—that the article cannot serve as a basis for attaining objectives relating to foreign and security policy, and it imposes certain restrictions consistent with limits set out in article 40 of the Treaty on European Union.
That is what article 352 states. It is a very wide provision. It is certainly subject to unanimity by the Council. I therefore assume that my right hon. Friend the Minister will assure us that the veto would be used, were the existing treaties—wide and deep as they are and effective as they are on our constituents—to be amplified by the use of that extremely wide power. I should mention that a few years ago the European Scrutiny Committee went over to see the Commission and its legal advisers. We had a full report on the provision in question, which at that time was described as article 308.
My amendments would knock out the provisions that would enlarge the Government’s capacity to bypass—I use this language carefully—the principles on which I assume Parliament would want to insist. Because of the ambit of the measure, we should ensure that it is used as tightly as possible.
Mr Lidington
I am grateful to my hon. Friends the Members for Stone (Mr Cash) and for Daventry (Chris Heaton-Harris) for the courteous and logical way in which they have set out their views and spoken to the amendments.
Clause 8 provides for the prior parliamentary approval of a decision by the Government to support future uses of article 352 of the treaty on the functioning of the European Union through an Act of Parliament, subject to certain defined exceptions. Article 352 can be used to adopt measures in order to attain one of the EU’s objectives where the existing treaties have not provided the specific legal base on which to do so.
The measures concerned are, as my hon. Friend the Member for Stone acknowledged fairly, subject to the British veto, require unanimity among all member states and must remain within the confines of the EU’s objectives. Nevertheless, because of its enabling nature, the use of article 352 of TFEU has led in the past—quite understandably, I happily concede—to concerns that it can be used to facilitate competence creep. It is an article in whose use the scrutiny Committees in both Houses have taken a great interest, and I am sure that that interest will continue.
In responding to my hon. Friends, I will start by saying that the use of article 352 is now subject to much greater constraints than it was prior to the entry into force of the Lisbon treaty. In particular, it must be read in conjunction with declarations 41 and 42, annexed to that treaty. They set out four criteria that govern the application of the article. First, article 352
“cannot serve as a basis for widening the scope of Union powers beyond the general framework created by the provisions of the Treaties as a whole and, in particular, by those that define the tasks and activities of the Union”.
It is also important to make the point that a fair number of those policy areas that in the past involved the use of article 352 have now, in the Lisbon treaty, specific treaty bases of their own. That means that in future it will not be possible to bring forward measures on the basis of article 352, because an alternative, defined and specific legal base will exist.
Let me illustrate that point to the Committee. Sanctions have been the subject of article 352 measures in the past, but we now have article 215(2) of the Lisbon treaty, which deals with measures to apply sanctions against natural or legal persons and groups of non-state entities. Similarly, articles 212 and 213 of the treaty on the functioning of the European Union make provision for measures of macro-economic assistance to third countries—again a policy area for which, before Lisbon, article 352 was used as the legal base.
Secondly, article 352 cannot be used as a basis for the adoption of provisions whose effect would in substance be to amend the treaties without following the procedure that they provide for that purpose. Thirdly, the article cannot be used to harmonise natural laws in cases where the treaties exclude such harmonisation. Fourthly, the article cannot be used to obtain objectives pertaining to the common foreign and security policy.
Mr Cash
I understand exactly what the Minister says, but I am sure he will concede that that is all without prejudice to the fact that the measure is an expansion of what is a very wide provision in itself. For example, on the point that he has just made, there is a self-amendment provision in the treaty. It is difficult in such debates to get right down to the nuts and bolts, but basically this is a problem of an expanding treaty provision that was widely construed and widely drafted in the first place.
Mr Lidington
Given the history of the article’s use, I do not blame my hon. Friend for being properly sceptical and inquiring about how it might be used in future, but the Lisbon treaty now sets out explicit and specific treaty bases to govern policy areas and legislative measures that were previously the subject of article 352 authority, so it rules out the article’s future use to authorise measures in those categories.
Despite the greater restrictions on the use of article 352, and although it is not a ratchet clause under the definition that the Government have tried to apply consistently, given its significance we have decided that its use should be subject to greater parliamentary control. At the moment, as my hon. Friend acknowledges, its use is subject to the same parliamentary scrutiny as any other proposal for EU legislation, and the Bill makes it clear that this Government do not believe that that is sufficient, hence the inclusion of clause 9. The provisions will apply to proposals for which article 352 forms one part of the legal base and to proposals based on article 352 exclusively.
The article has been used in the past to authorise a range of important measures: to set up EU agencies such as the European Union Agency for Fundamental Rights; to set up things such as a community civil protection mechanism; and to enable member states to work together to mitigate damage from natural or man-made disasters. They were important decisions, and they exemplify exactly the sort of legislation that will require an Act of Parliament under this Bill before the United Kingdom is able to sign up to it.
I turn, however, to the exemptions. Where legislation based on article 352 is equivalent to a previous measure, prolongs or renews an existing measure or extends a previous measure in terms of its geographical scope, we do not think it right to require an Act of Parliament in order to agree to it—if the substance of the measure is identical to a previously agreed measure. If it is not identical, the measure should none the less be subjected to parliamentary approval by Act of Parliament. Similarly, we do not judge that an Act of Parliament is an appropriate requirement if the legislation simply repeals existing measures or consolidates, without adding to, existing measures made under that article. Any proposal for legislation based on that article, even if the Government consider that it is covered by one of the exemptions, would of course remain subject to the normal arrangements for the scrutiny of EU legislation and the powers of the two scrutiny Committees.
Mr Cash
I am happy to seek to withdraw the amendment in the circumstances, without prejudice to my concerns about the matter. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Clause 9
Approval required in connection with Title V of Part 3 of TFEU
Mr Clappison
I beg to move amendment 14, page 7, line 33, leave out from first ‘of’ to end of line 44 and insert
‘any existing or proposed measure under Title V of Part 3 of TFEU.’.
Mr Clappison
The hon. Lady has updated my information, which goes only as far as 30 November, by which point there had been six opt-ins. There have therefore been another two since, and they are coming along all the time. We heard evidence in the European Scrutiny Committee that 30 or 40 such opt-ins were due to take place. The EU has an ambitious programme in that regard—that is not an expression of opinion; it has admitted it. I shall deal with that later.
The hon. Lady is absolutely right that some of the opt-ins are on important points, and I shall come to one or two of them that I experienced under the previous procedure. I should like to ask the Minister how many of the provisions that we have opted in to since the present Government came to power would have been covered by the procedures in clause 9. I fully accept that those procedures are an improvement on the current situation, but I should like to know how well they cover the ground.
As the hon. Lady said, some of the opt-ins have been significant. I wish to mention two in particular—they were debated a little yesterday, so I will not take the Committee over the same ground. They are the European investigation order, which received practically no scrutiny in the House and on which we had no opportunity for a vote, and the draft directive on the right to information, which was also very important. We had a little more scrutiny of it, but no real opportunity for a vote unless one was prepared to trigger a deferred Division.
Under successive Governments, the UK has been very careful and vigilant about permitting the EU to deal with the so-called area of freedom, security and justice, which is dealt with in clause 9. That goes back to pre-Maastricht days, when such matters were dealt with on the basis first of informal co-operation, and then of slightly more formal co-operation, between Home Affairs Ministers. They were not dealt with as part of the treaties or Community institutions—Home Affairs Ministers simply met to co-operate as such.
The Maastricht treaty put that on a more formal basis with what was described as the justice and home affairs pillar, which was the third pillar of the treaty. The first pillar was the old matters within the treaty—the single market, fisheries and agricultural policy, and all the rest of it—and the second was common foreign security policy.
One or two hon. Members who are in the Chamber now were in the House at the time of that treaty, and there was much debate on the justice and home affairs pillar. We were assured—I remember being given a solemn assurance by an authoritative figure in the Government of the time—that the treaty settled the problem as far as justice and home affairs were concerned, that we need not worry about home affairs coming within the purview of the Community method and Community institutions, and that they were being kept separate. The same applied to the common foreign security policy. The implication was that the pillars in the treaty would stand for ever, and that they were all the protection and assurance we needed. I am reluctant to say this but I have heard similar claims in respect of many other so-called safeguards since then, including in the course of this debate.
Mr Clappison
I am afraid that I was credulous. We were perhaps willing to believe and wanted to believe what we were told. We knew that it was right for the UK not to come within such matters in the EU so that we did not gradually integrate into a superstate or a federal united states of Europe. Many are still worried about that and we wanted to avoid it, and we thought the pillars were the answer.
Mr Clappison
Notwithstanding all the assurances, such as the ones that we just heard from the hon. Member for Cheltenham (Martin Horwood), about the safeguards that are in place and despite all that we have been told over the years, under the treaty of Lisbon judicial and home affairs were planted fairly and squarely in the Community institutions and method, under what was the old first pillar, and subject to the ECJ and all the other EU institutions.
Mr Cash
The hon. Member for Cheltenham mentioned the European Scrutiny Committee, so may I say that the investigative order is still subject to scrutiny? He may be assured that we will follow every step, but we have no confidence in that part of the coalition that voted for all these arrangements under the Lisbon treaty—by that, I do not mean the Scrutiny Committee because I am talking about myself.
Mr Clappison
To be fair to the hon. Member for Cheltenham, he has an honourable and consistent approach to these matters which has a lot of appeal in the country. He is in favour of a more integrated Europe and of expanding the competences of the EU in co-operation with Europe. That is an honourable point of view to take. I take a slightly different view, but I respect him for his views. However, I would point out to him that of all the safeguards that have been mentioned, the one that seems to have been most satisfactory—it is possibly the only one—is the opt-out. When one surveys the history of this country’s participation in the EU, the areas in which people take most satisfaction are those from which we opted out, foremost among which is the single European currency. Some people say that that was one of the greatest achievements of our European policy. All the things that we have gone along with are the subject of great dissatisfaction.
Mr Raab
I thank the hon. Gentleman for that intervention and I agree. Indeed, senior members of the judiciary have said the same thing. The Lord Chief Justice recently gave a very informative speech saying that Britain no longer seems to be the champion of the common law. The ever-increasing move towards European integration in this area undermines that. Any proposed opt-in to justice and home affairs legislation, which goes to the very heart of our laws, liberties and way of life, must first be subject to proper oversight by and the approval of the House.
Mr Cash
I congratulate my hon. Friends the Members for Hertsmere (Mr Clappison), for Daventry (Chris Heaton-Harris) and for Esher and Walton (Mr Raab) on their speeches.
After 26 years of scrutinising treaties of one kind or another, sometimes tabling as many as 120 or 140 amendments, debating them in detail and listening to the arguments put forward by Government spokesmen, who say, first, for example, that we have reached the high water mark, and then that the measure is not what some people fear, perhaps it is inevitable that I have developed a certain resistance to the assumption that what we hear from the Front Bench will necessarily occur—I hope that is a nice way of putting it—and that I have become if not cynical, which would be an unfair word, at least uncertain about the consequences that subsequent events may produce.
In other words, we do not get what it says on the tin, or necessarily what we are told we are likely to get. I am very sceptical, not just Eurosceptic. I question not the honesty of individuals, but the accuracy of their predictions. I therefore believe that this set of measures, as has been amply described by my hon. Friend the Member for Hertsmere and others in this debate, is hugely important, although not more important than any of the other provisions that are part of a continual stream of acquiescence in European integration.
Where the provisions speak of not allowing measures to go through by way of opt-in, by imposing the requirement for some kind of parliamentary approval, I am well aware that we table amendments, we argue the case, we have a European scrutiny process, we go through it in detail, it has been universally applauded by Ministers and people throughout the land—
Mr Cash
Except the BBC, as my hon. Friend says, because it has not given any attention to the legislation.
The process has received a great deal of enthusiastic support, except when it comes to the votes. For all the flattering remarks made periodically about the members of the Committee and dedication and determination that they have applied, nothing happens. We do not get any of our amendments through and the Chamber is virtually empty. There is one assiduous Member on the Opposition Back Benches. I pay tribute to the hon. Member for Birmingham, Edgbaston (Ms Stuart). She has the seat which, I think, used to be Birmingham, Central in the 1880s. She was not around at the time, but she is carrying forward a fine tradition of ensuring proper scrutiny. Her predecessors in that seat were assiduous in ensuring that the interests of the people of Birmingham were well looked after. I pay tribute to her not only for the fact that she is here today on her own on the Opposition Back Benches, but that she is taking an active part.
Ms Gisela Stuart
I have no idea who held the seat in the 19th century, but I am encouraged, on matters European, that someone born near Munich now has Neville Chamberlain’s old seat.
Mr Cash
That is an interesting insight. However, I shall not follow the hon. Lady down that route as it would take me into area in which I have a great deal of interest. The hon. Lady tempts me, but she will not succeed on this occasion.
I return to my concerns. I do not mean this as personal criticism of the Whips. They have a job to do. They are told what to do. It is part of a policy, and the question is whether we want this set of provisions on family law, criminal procedure, serious crime with cross-border dimensions and so on to be implemented at all. The problem we have relates to a decision whether to opt in. We should not be contemplating it. That is the problem. With great respect to my hon. Friends, I am not criticising; I am simply making a point.
Mr Cash
Yes, and civil. Let us not get carried away by a few bits of paper and a few words in a Bill. They say that there will be restraint by way of approvals given by the House, but we know the realities. In relation to the opt-in on the investigative order—I think it was on 15 June, shortly after the general election—it can fairly be said that the Minister believed that she had to make that decision because, I think I am right in saying, there was a three-month period within which the decision had to be made. Perhaps there was some justification for the fact that she had to make the decision, but why did she make the decision to opt in? Why did she not make the decision not to opt in? That is my concern.
I plead with hon. Members not to be taken in by the effusions of reservation that emerge in letters, statements and the Bill. Right at the heart of this is the real question of whether we will end up with more Europeanisation of these matters, and the answer, emphatically, is yes.
Chris Heaton-Harris
I am sure that my hon. Friend is aware of the findings of the German federal constitutional court, which protects these matters for that country. In one judgment it said:
“Securing legal peace by the administration of criminal law has always been a central duty of state authority…To what extent and in what areas a polity uses exactly the means of criminal law as an instrument of social control is a fundamental decision. By criminal law, a legal community gives itself a code of conduct that is anchored in its values, whose violation is, according to the shared convictions on law, regarded as so grievous and unacceptable for social existence in the community that it requires punishment.”
It is desperately trying to protects its laws as well.
Mr Cash
I am so glad to hear that. I was not precisely aware of that part of the judgment, but my hon. Friend has made an important and helpful comment. The argument is right, and it is by dint of the most awful experience in Germany that it has come to these conclusions over an extended period since 1945. It is vigilant about these matters because it does not want ever again to find itself in circumstances, by virtue of a lack of democracy, when Hitler ran Germany. I have an absolute belief in the democratic instincts and principles of the British people, which have been born out of fighting not only that very Germany, but previous wars, right the way back to at least the 17th century. We have built up a democratic system in which we decide what the legislation should be, and we give it careful consideration. We need some parliamentary reform. We are being given the impression that in relation to these matters we will be able to retain our criminal system, but unfortunately, because of the Whip system and the whole direction of Europeanisation, that will be removed by what will happen in practice. As helpful as all these procedures are in indicating the direction in which they might like to go in certain circumstances, I fear that we will have many opt-ins and that, in practice, the proposed procedures will be applied and the Whips will ensure that the measures go through.
I will give the European investigation order as an example. It is still subject to European scrutiny and there will be a debate on it—I cannot remember when—despite the fact that it was decided on 15 June last year. That is because the European Scrutiny Committee had not been set up by that time, but the rules still applied to that order. There will be a debate on that matter, but when it is debated, which in effect is the same kind of thing that the Minister refers to about parliamentary approval, up to a point, there will no doubt be a take-note motion—I cannot remember the precise motion— before the European Committee. The reality is that not once in the 26 years I have watched these matters has a decision of a European Committee not to take note, following a vote that went against a Minister, not been reversed on the Floor of the House by the use of the Whips. Why should I be confident that—
Mr Clappison
My hon. Friend has made some powerful points that are entirely borne out by my much lesser experience of the European scrutiny system. In the case of the European right to information order, which is another opt-in, the most we can do is vote against it in the relevant European Committee so that it comes back for a vote on the Floor of the House, but that is merely a deferred Division on whether to take note of the document. We do not have the opportunity to say no to the opt-in. Is that his experience? We must have that option in the future if the Minister is to make good the promise, made in the statement of 20 January, that we will have the opportunity in a vote on the Floor of the House to say no to an opt-in.
Mr Cash
That is such a good example. In fact, I was in that debate with my hon. Friend—I was unable to vote in the Committee but took part in the proceedings. The reality is that that is how the system works in practice. This debate is about criminal law, but it is the same for everything else in the Bill. All the treaties, including all the laws, the entire encyclopaedia, all the work that is done in all the Departments and cross-departmental work—the whole country—are being run by a process of continuous European integration. The question is whether it is good for us or not. It is as simple as that, and that is a matter for us to judge.
However, because of the way policy is made, and with the help of the coalition, we are told that the Government think it is good for us. I do not agree, and I think that there are many other Members, and certainly many more people outside, who agree with what I have just said. Although the debates have been conducted with great courtesy and a great deal of substance on both sides of the argument, the real question is about what has happened. The short answer is that the Bill will go through and that we will put up a fight again in another motion under the arrangements proposed in clause 9, but in practice the process I have described will continue to happen.
The First Deputy Chairman
Order. The hon. Lady’s comments are going much wider than the amendments currently before us. I believe that there is sufficient meat in the amendments.
Mr Cash
I am grateful for that, Mr Evans, because otherwise the hon. Lady might have tempted me yet again. She knows my soft point, and she knows very well that it would not take me long to get going on that issue, either. But, she is right.
I have tabled a number of amendments, but I do not intend to press them to a vote, because we have had a thoroughly good debate, and I, like my hon. Friend the Member for Hertsmere, think that further consultation between the Minister, his officials, the European Scrutiny Committee and our Clerks might help to ensure that we get the maximum out of the provisions, even if they do not really measure up.
In any case, we know what happens in our votes; we have watched them now for about a week. On one occasion, we reached 45 genuine—as I call them— abstentions. By the way, Mr Evans, your name appeared on one list, but I said, “No, he’s Chairman of Ways and Means; this is not somebody you can count in.” Anyway, on parliamentary sovereignty we had between 45 and 50 such abstentions, which is quite a lot, but it is not anything like as many as the number of Members who rather agree with us in the broadest sense. I shall not go down that route, but what happens in votes is not very edifying. We do not win votes, because people are being told to vote in a way that is inconsistent with what they think, and that is another democratic problem.
Amendments 99 and 98 are mischievous, simply because they were tabled only to demonstrate my concern, which I have just raised, that opt-ins should not be allowed under any circumstances. On amendment 47, however, regarding the harmonisation of criminal offences and sanctions, my hon. Friends the Members for Esher and Walton, for Hertsmere and for Daventry are right. I am reluctant to adopt a default position, but for the purposes of debate I want to get out into the open something that concerns me, because the harmonisation of criminal offences and sanctions, on which I dare say books could be written, ought to be as restricted as possible.
Article 83(2) of TFEU, as I state in amendment 47,
“permits the establishment by directive of minimum rules with regard to the definition of criminal offences and sanctions in an area subject to harmonisation measures by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question.”
In a nutshell, I should like that to be one of those measures—from the written statement to which the Minister has referred—that ought to be discussed properly.
Let us think about what the harmonisation of criminal offences and sanctions affects and what its consequences are for the people whom we are elected to represent. If I cannot win the vote on my desire to throw out the whole measure, my minimum default position, however cynical and unhappy I am about opt-ins anyway, is to attempt to include it in the arrangements that the Government have provided.
Those are my thoughts on this group of amendments and on my amendments. If I sound a little concerned about them, I hope that Members will understand. As my hon. Friend the Member for Esher and Walton said, I see the provision under discussion as an enormous step. I am not sure that it is beneficial, because it assumes that there will be opt-ins. There are 30 or 40 of them, and there have already been eight in the past few months. The trend exists, and I do not see anything holding back the tsunami. Indeed, I see the tsunami being built up, and that is not in the interests of the democratic principles by which this House is elected.
Charlie Elphicke (Dover) (Con)
My hon. Friend the Member for Stone (Mr Cash) is much concerned about Members from all parts of the House being under the control of the Whips. For my part, I would like to say how much I agree with—
Mr Lidington
My hon. Friend puts his point trenchantly. I am not going to make any secret of the fact that the handling of European policy, and in particular on justice and home affairs, has been one of the most delicate issues for the coalition. There have had to be compromises on both sides to get the package of measures that we are including in the Bill and to shape the general policy that we are pursuing in respect of the European Union.
Mr Lidington
If my hon. Friend will forgive me, I would like to answer one hon. Friend before I give way to another one.
If my hon. Friend the Member for Hertsmere looks back to the debates on the Lisbon treaty, he will remember that he and I walked through the same Lobby, day after day, in opposition to that treaty. My recollection is that we had at least one day when we talked entirely about justice and home affairs matters. He knows the view that I took as a Front Bencher in a Conservative Opposition. I would much rather be either a member of or supporting a Conservative-Liberal Democrat coalition than spend another Parliament sitting fruitlessly in opposition, seeing measures being taken through the House to which I was vehemently opposed but which I was powerless to stop.
Mr Cash
My right hon. Friend is getting on to a very sensitive point, and I quite understand the sensitivities involved. When I wrote to my right hon. Friend the Prime Minister on 10 May last year about the coalition agreement, I specifically stated that, if there were to be a coalition—I had made it clear that I would have preferred a minority Government—it was essential that the Liberal Democrats should at least be required to abstain on matters relating to the European Union, for all the reasons that my hon. Friend the Member for Hertsmere (Mr Clappison) has just given. That is the problem, and we are now finding ourselves in an impossible dilemma. In fact, I would say that the situation is untenable.
Mr Lidington
I disagree with my hon. Friend’s statement either that we face an impossible dilemma or that the situation is untenable. We have a situation in which two political parties with differences of perspective and tradition on a number of issues are finding a way in which to work together in the interests of the nation as a whole. I think that the coalition is providing stable government. It is new in recent British political experience, but I find that it is hugely welcomed by many people of all political persuasions and no strong political persuasion.
Mr Jenkin
Amendments 82, 83 and 84 concern what the Minister set out in a statement last week, in which he described the arrangements for the Government to give formal notification of whether they wished the UK to opt out of certain justice and home affairs matters by 31 July 2014. He made it clear in the statement—I think this is welcome—that the Government intend to allow the House of Commons and the other place to table a formal resolution to approve or disapprove of the action the Government take in these matters.
While we are listening to this debate, it is worth reminding ourselves of the magnitude of what we are talking about: a complete rearrangement of the civil and criminal legal system of our country that will move the whole civil and criminal system on to an entirely new basis. I hear what my hon. Friend the Minister says about the number of advocates-general and about maintaining four judges in the European Court of Justice who represent common law jurisdictions, but that is a completely meaningless reassurance in the face of all the other judges and the history of the jurisprudence of the European Court of Justice, which simply is not interested in the common law basis of the jurisdictions of its member states.
Having fought against the Lisbon treaty in principle and most particularly on the basis of its potential to interfere in the criminal and civil law of this country, it is astonishing that the Government, since the election, have, for example, approved the directive establishing the European investigation order. Let us be clear: that allows another member state to oblige the United Kingdom to carry out almost any investigative action in the UK, including searching a house, intercepting telephone calls and obtaining DNA for the purpose of criminal proceedings in the requesting member state. The UK has supported the directive on the right to interpretation and translation of criminal proceedings, ceding jurisdiction in that area to the European Court of Justice. This all happened before the European Scrutiny Committee was sitting, so it was all unscrutinised by this House. Any weasel words from the Government about strengthening the scrutiny of the House of Commons should carry a health warning.
The Government have decided to opt in to the Council decision on the conclusion of an agreement between the European Union and Georgia on the readmission of persons residing without authorisation, which makes binding on the UK as a matter of European Community law an international agreement between the EU and Georgia and means that the UK cannot conclude its own readmission agreement with Georgia, should it wish to do so. I just point out that had any of those decisions been in an international treaty outside the European Union’s jurisdiction, they would have required an Act of Parliament, but these things are done by the stroke of a Minister’s pen under the powers in the European Communities Act 1972.
Mr Cash
I am sure that my hon. Friend will recall what the Minister said about the European Affairs Committee of the Cabinet, and the fact that we have two thirds Conservatives and one third Liberal Democrats. For practical purposes, there cannot be a vote; otherwise, if we were to comply with our manifesto commitments, we would win the vote every time. It must be, therefore, that the Government are willing to agree with the Liberal Democrats’ proposals, which makes it even worse.
Mr Jenkin
I thought the exchanges between the two Front Benchers about the real nature of the coalition agreement were very revealing. We have all known about this from the minute that the coalition agreement was first mooted. That is why I was one of the newly elected Members who went to see the then Leader of the Opposition, just after the election, and said, “Do not do this; let us have another election in short order so that we can deliver our mandate and our promises to the British people.” We knew that we were being bound into an arrangement that would mean having to swap our obligations to our electors—let us face it, handing criminal jurisdiction over to the European Union is not exactly a popular thing to do—for a mess of pottage: a compromise with the Liberal Democrats. The Deputy Prime Minister took great interest in these matters, particularly justice and home affairs, when he worked for the European Commission and I understand that he is personally extremely committed to the creation of a federalist criminal justice legal order as part of the state building of the European Union. We are now actively participating in that.
Mr Jenkin
My hon. Friend is absolutely right. We are going into this with our eyes wide open, except that this Bill has its eyes wide shut. The Bill pretends that there is no decision to be made between now and 2014 about this momentous change to our criminal justice system and the way the law is conducted in this country—to the protection that Parliament can currently afford to UK citizens but is now already being eroded.
So I have tabled a series of amendments. There are some choices for the Minister, and I would be interested to know which he prefers. Amendment 82 would mean that the Government have to gain the approval of a referendum before they decide that the UK should not opt out of these laws. Amendment 83 would require the approval of at least an Act of Parliament for the Government to do so. Amendment 84 is quite modest; it would require an Act of Parliament before the Government could opt back in to any of the laws that had ceased to apply following the 2014 opt-out decision.
This is a question of more or less power being transferred to the EU, which would fundamentally alter our criminal justice system, but it is being left entirely up to Ministers.
Mr Cash
In the light of my hon. Friend’s intelligent observations, does he also agree that the process of Europeanisation, not merely by default, but by activism, despite our manifesto and despite the common sense and the wishes of the people at large, who vote for us by the way, will mean that we increasingly hand ourselves over to an entity, a European Union, not Europe, which is manifestly failing on all fronts, with protest, riots, the whole place imploding—Greece, Spain, Portugal, Italy and Ireland? The whole situation is moving entirely in the wrong direction. That is the big landscape, and that is where the Bill fails.
Mr Jenkin
I fully agree with my hon. Friend, but I will try to avoid being drawn into that. The great skill in Committee debates is to avoid making the same speech over and over again. However, I will be guilty of repeating something that I have said before, which is that the EU is made up of democracies, but it is not itself a democracy. It is anything but a democracy; it is a bureaucracy. It has some institutions that purport to be democratic, but they have only the most tenuous link with the real aspirations of the peoples they seek to serve. The unaccountability of the most powerful institutions of the EU, namely the Commission and the European Court of Justice, is legendary. They spend money like water and they have yet to have their accounts formally approved by the Court of Auditors for the last 14 years. That is how unaccountable the institutions are to which we are handing over the jurisdiction of our criminal law.
That is why I am mystified by the Government’s complacency, except, as the Minister has now admitted, for that fact that we traded away our principles for power. Moreover, we did that not just in the national interest for a short period, but for five years. I am pretty certain that before five years have passed this country will be crying out for a general election. When a country finishes up with a Government who have no mandate, except an agreement that was invented between two political parties, we are in a dangerous situation. It was not for nothing that Benjamin Disraeli said that England does not love coalitions; if a party is an organised hypocrisy, I dread to think what the correct term for a coalition should be, except as an expedient in an emergency.
European Union Bill
William Cash Excerpts(15 years, 1 month ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr William Cash (Stone) (Con)
Does the right hon. Gentleman recall the case of the person in Leek, Staffordshire whom it was proposed, under an arrest warrant, should be taken over to Italy, and who was convicted in his absence to 15 years, but who, thanks to the intervention of my hon. Friend the Member for Staffordshire Moorlands (Karen Bradley) and the Prime Minister, has been completely exonerated? He was not even within 1,000 miles of where the murder took place.
Mr MacShane
The hon. Gentleman is perfectly right, but we could all list examples in Britain of improper arrests. It does not vitiate the need for international co-operation against criminality—I mentioned trafficking, but there are other examples—if that is what we want. International co-operation on the basis of, “Well, you’ll co-operate with us, but we won’t co-operate you”, will never happen. I am glad that there was not a referendum lock on the EAW, because otherwise that gentleman from 7/7 would still be waiting in Rome until we had had our referendum.
Mr MacShane
To be told to sit down by the hon. Gentleman, who, to his great credit, has never long warmed a Bench if he could stand up, is undoubtedly a real pleasure to be had from my small contribution to this debate.
Mr MacShane
I will not give way. The hon. Gentleman will make his points in due course.
In opposition, it was possible for the Conservatives to campaign as Eurosceptics, but they cannot but govern as Euro-realists. This we have seen in whole range of—
Mr MacShane
I am sure that the hon. Gentleman will have a chance to make his point very shortly.
As Euro-realists, this Government have been—by my standards—responsible and helpful, shovelling out money to Ireland and working with Chancellor Merkel on serious treaty amendments that will increase economic surveillance of all the 27 member states, on foreign policy and on other issues. I really have no huge complaints to make about the Government at all. I say again, however, that it is inconceivable that any Minister of any Government in the future is going to come back from Brussels and say, “I’ve signed such a bad treaty. I’m not really sure about it. It is so significant in its alteration of the powers between the UK and the rest of the EU that I want it put to a referendum.”
Mr Cash
The right hon. Gentleman is making a big show about all this. First, there was a referendum in 1975 under a Labour Government. Secondly, there was also a promise in the Labour manifesto about a referendum on the constitutional treaty. Thirdly, if the right hon. Gentleman had been here yesterday, he would have heard those on his own Front Bench proposing a mechanism to ensure that, in certain circumstances, there would be a referendum on all matters within the treaties. So, for practical purposes, he needs to ask himself whether the Labour party is now contradicting the position that he is adopting.
Mr MacShane
I will leave that point for my right hon. and hon. Friends on the Front Bench. I am not sure whether their new clause has been selected for debate today, but it proposes to set up a broad oversight committee, which might indeed be a rival to the Committee of the hon. Member for Stone (Mr Cash). I do not think that the proposal will make much progress, however.
The worry for me is that, at least among the majority party on the Government Benches, we have a Eurosceptic majority. We have to accept that. There are also many Eurosceptics on these Benches—[Interruption.]
Chris Heaton-Harris
I thank the Chairman of the European Scrutiny Committee for correcting me. He knows that I am often wrong, so he corrects me quite regularly. I appreciate the help and assistance that he gives me, as a new Member in this place.
In the simplest terms, on the JHA ratchets, the Government have wisely looked at article 86 of the TFEU and have closed down in the Bill many of the policy areas that could be taken up to European level. Article 86 deals with the European public prosecutor, as I think the hon. Member for Wolverhampton North East (Emma Reynolds) alluded to earlier. However, it does not pay attention in the same way to the justice and home affairs criminal law ratchets, because those are contained in article 83. Is there a reason for that? Essentially, I am seeking from the Minister an idea of how we will deal in this place with matters similar to the European investigation order when the Bill is enacted.
The criminal ratchet clauses are often very important, but some, while important in themselves, would not be as important to the British people on the whole. It would be a very daring move for anybody—a Eurosceptic, a pro-European, or any Minister—to recommend such matters for a referendum. I am quite happy to think that we could deal with this by putting before both Houses of Parliament a motion or Bill that could be amended to include a referendum clause, should the need arise. However, we can do justice and home affairs scrutiny a lot better. Although the written ministerial statement goes some way in that regard, could the Minister give us some real-life examples to explain how such matters will be dealt with in future?
I do not want to detain the Committee further. I have explained the reasons for my amendments on family law—I will not be pressing those to a vote—and on the JHA ratchets, which I hope I will not need to press to a vote. All parties should be able to agree in general terms to better parliamentary scrutiny of justice and home affairs opt-ins—or, indeed, opt-outs. This is the right place for that to be done, and I look forward to the Minister’s comments.
Emma Reynolds
That is certainly true, but I remind the hon. Gentleman that both the Single European Act and the Maastricht treaty involved a much greater transfer of powers than anything we have seen since and the Foreign Secretary voted against a referendum on such matters. Let us talk not only about consistency on this side, but about consistency by those on the Treasury Bench, too.
The Government have decided to opt in to eight pieces of justice and home affairs legislation since the general election. The hon. Member for Daventry has mentioned one of them—the European investigation order. The Opposition would have liked to have had a say on the Government’s decision not to opt in to the EU directive to combat human trafficking. Indeed, we judge the Government’s decision not to opt in to be a dereliction of duty as regards combating this modern form of slavery. I imagine that some Back Benchers sitting behind the Minister—as I have said, the hon. Member for Daventry has mentioned this—would have liked more time on the Floor of the House to discuss not only the European investigation order but the other seven measures that the Government opted into.
Another area that the Government have totally neglected to mention in the Bill is the wholesale transfer of the body of justice and home affairs legislation to the jurisdiction of the European Court of Justice. The decision that the Government have to take in 2014 either to opt in to the body of legislation in its entirety or not to do so was also referred to in the Minister’s written ministerial statement last week, but it is not mentioned in the Bill and is surely of equivalent significance to many of the changes in clause 6. In fact, the Conservative party manifesto stated that the Conservatives wanted to repatriate powers in employment and social affairs and criminal justice.
In his ministerial written statement, the Minister said there would be a vote in the House on the decision in 2014—we welcome that. However, I am sure that some of his Back Benchers will tell him that it is his best chance to repatriate powers in the field of criminal justice. Such a move would be unilateral and could be carried out with relative ease. The Government will not be able to do the same in the field of employment and social affairs without the unanimous agreement of all the other 26 member states. Given that this is the Government’s only chance to fulfil that manifesto commitment, are they minded to take up this opportunity? Are not these changes more important than those in clause 6?
Emma Reynolds
We are not in favour of repatriating power; I am simply pointing out that according to their manifesto, the Conservatives committed to doing so. Far be it from me to intrude on private grievances, but I am simply trying to point out that there may be disagreement on these issues between those on the Government Front and Back Benches.
Mr Cash
The hon. Lady has been talking with great eloquence about opt-ins and the number of opt-ins that have taken place and she has referred to the excellent amendments of my hon. Friend the Member for Daventry (Chris Heaton-Harris), which reflect the views of the European Scrutiny Committee. In the light of her eloquence and determination, and the expressions of support she has given to my hon. Friend and therefore to the Committee, I should like to know whether the Opposition would be interested in voting on these matters.
Emma Reynolds
I was simply pointing out inconsistencies and contradictions in the Bill.
Emma Reynolds
I have read it, and it is unforgettable, but perhaps that is not for this debate. We have become more sensible since then.
Mr Cash
The hon. Lady may not remember the precise terms of the 1983 Labour manifesto, but it was described as
“the longest suicide note in history”.
On the treaties, the Maastricht treaty indeed represented a massive transfer of powers. As Professor Simon Hix confirmed, in his view it should have been subject to a referendum. There are very few on the Conservative Benches now who do not agree that we were right when we pressed for one at the time. However, the Lisbon treaty contains the ingredients of the Maastricht treaty. That is where the problem lies. A referendum was required on that because of the things that are now entrenched in the Lisbon treaty which come out of Maastricht, Amsterdam and Nice, plus all the add-ons that the Front-Bench team of the Labour party in government put through.
Emma Reynolds
I know that the hon. Gentleman is disappointed that back in 1993 he did not manage to win the vote on securing a referendum on the Maastricht treaty. I would like to look forward, rather than look back. I shall continue and conclude my remarks.
The changes outlined in clause 6 and other parts of the Bill pale into insignificance compared with the wholesale transfers of power in the Maastricht treaty and the Single European Act, as I outlined. In the House, on the Second Reading, both the Foreign Secretary and Minister for Europe reiterated the Government’s commitment, as set out in the coalition agreement, not to agree to any transfer of power from Westminster to Brussels for the duration of this Parliament. If the Government are so committed not to transfer power, why do we need the Bill? Is it that their own Back- Benchers do not trust them to keep to the text of the coalition document?
The Bill is unnecessary. It is a dog’s breakfast. It is a political gesture to calm the fears of the Eurosceptics on the Conservative Benches. The Government have failed to achieve their objective.
Mr Cash
Will my hon. Friend bear it in mind that the infamous Merchant Shipping Act was taken through the House in 1988? It was struck down by the House of Lords for not being in compliance, it argued, with the European Communities Act 1972. I do not want to trespass too much on her speech, but I think she may appreciate that she is in what I would describe as extremely sensitive and, in my view, very sensible waters.
Priti Patel
I thank my hon. Friend for his remarks. There is no doubt that these are sensitive issues.
The Bill is significant and designed to protect Britain’s interest, and now and in future we must think about the safeguarding of our territorial waters. We know about the state of fishing in this country, and I seek from the Minister an assurance that we will not concede more powers but consider the implications when changes come to the fore affecting our sovereignty and decision making in this House.
I shall touch on a couple of other issues. During the debate a fortnight ago on clause 8, the Minister for Europe, when challenged at length by my hon. Friend the Member for Stone (Mr Cash) and others, gave a very strong reassurance that this Parliament is sovereign on all matters. On this narrow issue regarding the common fisheries policy, however, my amendment would allow Parliament to exercise its constitutional power and disapply EU law that in my view is clearly not in our national interests.
As my hon. Friend says, these are sensitive issues, and I am not advocating a bust-up with Europe over them, but the amendment is about asserting our parliamentary sovereignty, on which many Members will agree. I seek the Minister’s assurance that the Government are listening to the points that I have made. To summarise, I hope that they will safeguard the powers that we have over our territorial waters and that they are prepared, come what may, to defend the country’s interests on this issue.
Chris Bryant
I congratulate the hon. Member for Witham (Priti Patel) on her speech, but it exemplified the fundamental problem that I have with clause 6 and, for that matter, schedule 1. The Euroscepticism at the heart of the clause is a classic example of our exaggerated understanding of our own significance—in particular the significance of Britain and of our parliamentary tradition. That has been exemplified in many speeches this afternoon.
I always think it is ironic when people inveigh against other Europeans, often misquoting John Bright to say that this Parliament is the mother of all Parliaments, when he actually referred to England as the mother of all Parliaments. It is particularly ironic when people then refer to the first summoning of commoners to a royal Parliament—Parliament is of course a French word, not an English word—by Simon de Montfort. They quite often forget that he was in fact a Frenchman, and a profoundly anti-Semitic one at that. Incidentally, we only know the names of those who attended the 1258 Parliament because they had their expenses paid.
Mr Cash
We are enjoying the hon. Gentleman’s speech, but I thought I would mention that although he is right about what John Bright said—I have just finished writing a book about him—John Bright was defending democracy. Given the problem of the democratic deficit that we so often have, he would have been appalled at clause 18 and absolutely appalled at the manner in which power has been accumulated and moved away from the people of this country, particularly those who are less well off.
Chris Bryant
I think that John Bright would have been appalled by nearly every economic decision that has been taken by the coalition Government since they came to power, so I do not think that the hon. Gentleman is on good territory in summoning him up in support.
I also point out that the first royal to build on this site was King Canute, who, of course, was Danish. We must therefore take a less effortlessly superior approach to the European Union in our discussions.
Mr Cash
The hon. Gentleman refers to an amendment that I hope to address shortly. Part of my argument will be that that financial mechanism is unlawful. It was entered into by a former Chancellor of the Exchequer and endorsed by the coalition Government in circumstances that I shall describe. It is also still subject to scrutiny by the European Scrutiny Committee.
Chris Bryant
I look forward to hearing the hon. Gentleman’s arguments. However, I do not understand why it is okay to support Ireland without a referendum, but impossible to provide such support to another country without a referendum.
Chris Bryant
Indeed. Obviously, a referendum would also incur significant costs. The Government are trying to argue that holding the alternative vote referendum on any day other than 5 May this year would cost some £30 million. I presume that any referendum under the amendment would also cost some £30 million, and I think that that is inappropriate. The clause refers to “a common EU defence”, and although I do not want to hand over the setting up of a standing army to the European Union, I acknowledge that there is already a European army, because there are troops from member states acting in Kosovo—and they have done so in Bosnia—as well as Swiss troops under an EU banner. I am reluctant to say that a referendum would be needed on any aspect of a common defence policy, because that would be a mistake in our national security.
Mr Cash
The hon. Gentleman referred to the cost of a referendum, but my amendment provides that a referendum would be held on the mechanism if the decision involved £5 billion or more. That is a vast amount, and that is why it should not go off to Spain or Portugal. I shall explain why if I get the chance to speak.
Chris Bryant
I look forward to hearing the hon. Gentleman’s arguments.
My final point is that my anxiety about the drafting of this Bill, and in particular this clause and its attendant schedule, is that it is a lawyers’ paradise. There will be constant judicial review of decisions made by Ministers. For instance, in the case of the agreement on the External Action Service, the eventual format would have been agreed by a Minister from any political party in this House, but it could well be subject to judicial review under the amendment. It is also true of many other elements of the clause, and it means that Ministers’ actions at meetings in Europe will constantly be subject to judicial review. Rather than increasing the power of Parliament, that will actually increase the power of the judges in this country, which I consider to be a very big mistake.
Neil Carmichael
My position is that neither of them needs to be supported. I believe that the present situation is perfectly acceptable, and we need to concentrate on the question of power and competence.
The European financial stabilisation mechanisms are also very important. The critical point is that we are not in the euro, and that ECOFIN makes the decisions through the qualified majority voting procedure, so any attempt to make changes in that regard would not necessarily have the desired effect. We have no plans to join the euro. Amendment 8 would be necessary only if we decided to join it, which we certainly do not intend to do. I might add that this legislation will make it a necessity, for the first time, to have a referendum before we are able to join the euro. That is really useful.
Mr Cash
My hon. Friend is talking about my amendment, but I am afraid that he really does not seem to understand what it says. I say that with great respect. It has nothing to do with the euro; it relates to a financial mechanism that was brought in by the previous Chancellor of the Exchequer on 9 May last year and endorsed by our own Government. I can assure him that the amendment has nothing to do with the euro, so he can relax.
Neil Carmichael
But it has got something to do with ECOFIN and with our interest in ensuring that the euro remains strong, because we must remember that 50% of our trade is with the euro area. That is not to say that we should join the euro; we should not. I am simply reflecting our economic position.
Mike Gapes
Thank you, Ms Primarolo. I take it, then, that if I widen my remarks, I will remain in order—subject, of course, to the occupant of the Chair.
I begin by following up a comment of the hon. Member for Stroud (Neil Carmichael) when he said that the former Prime Minister had said, “They are our fish”. One thing about fish is that they do not stay in one place; they can move. If they do not move, they may be over-fished, and there may be a need to have some kind of collective policy to protect “our fish”. It is very easy to say that these are “our fish”, but the fish might swim away and not come back another day.
Mike Gapes
That is very true. The hon. Gentleman should therefore welcome the fact that I am a signatory to an early-day motion on this very issue, which was tabled recently by one of his colleagues.
Mr Cash
As the hon. Gentleman knows, I tabled amendment 8. He has described the apparent tremendous advantages of the eurozone to us, and indeed the Government sometimes say much the same. The problem is that as a result of the failures of European economic governance and the failure to repatriate the regulations that are imposed, there is no growth in the EU as a whole. We are in the process of being enmeshed in an imploding European Union. So I do not entirely agree with the hon. Gentleman, although the reasons for my amendment are not directly connected with that.
Mike Gapes
The hon. Gentleman and I have been debating these issues for nearly 20 years. We have never agreed on matters relating to the European Union, and I do not think that we are going to do so now.
I do not believe that it will benefit our country if the European Union and the European economies implode, as the hon. Gentleman seems to wish them to do. Certainly there are problems in some—not all—European Union economies, and some, including the German economy, are growing quite rapidly. At the same time, the world’s economic centres are shifting, overwhelmingly to Asia but also to other parts of the world, and as a result we as Europeans will face a very difficult period in the coming years and decades. We need to think carefully about what will happen if the British economy is speculated against in the next 10, 15 or 20 years, and—given that the coalition Government are presiding over a return to recession—about what will happen to the long-term future of the economy if, as the hon. Gentleman wishes, the European economies fail and the European Union implodes.
Mike Gapes
Perhaps when he makes his own speech the hon. Gentleman will be able to clarify whether the Liberal Democrats are still in favour of a “big bang referendum”, as was suggested on some occasions, whether—as happened with the Lisbon treaty—they will vote in three separate ways on any of the issues that arise from clause 6, and whether the Liberal Democrats in the other place will vote in line with their Front-Bench colleagues here or will also be split in three directions.
I believe that the measures before us are not necessary and should be rejected. I shall vote against clause 6 and the amendments concerning, in particular, the European financial stability mechanism, which I think would be positively damaging to the future of our country.
Mr Cash
Excellent amendments have been tabled by my hon. Friends the Members for Daventry (Chris Heaton-Harris), for Witham (Priti Patel) and for Hertsmere (Mr Clappison), and perhaps by others whom I have omitted to mention. There are quite a few amendments here which deal with matters raised by the European Scrutiny Committee, and which relate in particular to gaps—as we described them in our report—in the control mechanisms of part 1. Those matters, which have been discussed quite extensively, involve extensions of European Union competence in criminal law and procedure and in family law, opt-in decisions, and enhanced co-operation in internal passerelles. The amendments deal comprehensively with those issues, and in doing so demonstrate their necessity.
The proposal relating to criminal procedure has been raised by the European Scrutiny Committee in the past. In particular, the Committee has raised the issue of serious crime with a cross-border dimension. Despite denials over the past decade or so that there would be any serious engagement in the field of criminal law, there has been an increasing encroachment on it. There are serious problems, which are often procedural. We should also consider the manner in which criminal justice is activated and operated in other member states. We do not want to assume that everything that we do is perfect; indeed, we have plenty of evidence that it is not. However, there are certain basic principles that go to the heart of the manner in which trial by jury operates and the manner in which people are arrested. I could continue at great length.
Mr Clappison
My hon. Friend is making an extremely powerful speech about a very important point. He has referred to the rationale behind the proposals from the European Union, and has cited serious crime with a cross-border dimension. Can he confirm that when jurisdiction is given to the European Union through an opt-in, it applies not just to cross-border crime but to all criminal law, and brings all the criminal law in this country within the jurisdiction of the European Court of Justice and future proposals from the European Commission?
I do not wish to use the word “bogus” or the word “misleading”, but the European Union’s rationale is apt to mislead. The creation of a common European criminal justice system is profoundly significant.
Mr Cash
Indeed. I pay tribute to my hon. Friend, who, as a member of the European Scrutiny Committee, played an important role in the preparation of its report. As I am sure he will speak in the debate, and given his expertise as a member of the Select Committee on Home Affairs, I shall restrict my own remarks, and leave it to him to deal with these questions in his own time and his own way.
I simply make the point that these are well-founded concerns, and I can think of no reason on earth why the Minister would not want to accept these amendments. Perhaps he will, but while the Government have had regard to what the European Scrutiny Committee has said in a report that has been universally welcomed—by both Front-Bench teams and by all those with the competence to understand these matters—they have tended to ignore that almost entirely in considering our recommendations. I shall return to that issue later, but not today.
I turn to the reasons that we gave in the European Scrutiny Committee report regarding questions of criminal law:
“To be consistent with the extension of shared competence under clause 4”—
we debated that yesterday—
“the application of both of these provisions”—
the two provisions and the amendments relating to criminal procedure and serious crime—
“should be premised on a referendum and Act of Parliament, as in clause 6; not an affirmative vote before the Government’s opt-in decision and an Act of Parliament before it agrees to the adoption of the legislation.”
The fact that the report states that ought to be put on the record. Our view is that family law
“is…of similar if not greater importance to social or environmental policy and ought to come within clause 6, triggering a referendum as well as an Act.”
We can see no reason for not doing all those things.
On opt-in decisions, I defer entirely to my hon. Friend the Member for Hertsmere. Our conclusion is that it
“would seem to us consistent with the aim of Part 1…for all opt-in decisions to be subject to formal Parliamentary approval.”
My hon. Friend the Member for Witham referred to fishing, and there she was in sensitive and deep waters. She explained very well the six-mile limit, the fisheries limit of up to 12 miles, the 2002 regulation and the associated issues, but that does not alter the fact that this is a serious problem for the fishermen of the United Kingdom. In considering the idea that there should be any restriction of our sovereignty and territorial limits in these matters, we should remember that the entire fisheries policy, which we shall not debate in detail today, I can assure you, Mr Caton, is a complete travesty. There is no question about it: it constitutes the most monumental waste of good fish, which are thrown away and literally left to rot. It is pathetic, and I need say no more than that. That we should regain a degree of sovereignty and territorial competence in relation to fishing is to my mind a given.
Mr Redwood
My hon. Friend has made a very powerful comment. Many of us have felt for many years that the fisheries policy was a scandal. Successive Governments have said that they would do something about it; none have yet succeeded. Does this not show why we are also worried about the surrender of criminal justice powers? We are surrendering them to the very people who have made such a mess of our fisheries.
Mr Cash
Absolutely, and the same problem permeates so much of what goes on in the European Union. I am anxious not to get into discussing the merits of the European Union as a whole, and I shall certainly ensure that I keep to the amendments; but I entirely agree with my right hon. Friend. I will come on in a moment to the financial stability mechanism, and try to demonstrate exactly how wrong I think the hon. Member for Ilford South (Mike Gapes) is about the broad questions attached to it. I shall also deal with the mistaken remarks of the hon. Member for Rhondda (Chris Bryant) regarding the necessity for my amendments.
Mike Gapes
Just for the record, is it not a fact that the outgoing Chancellor would have consulted the then shadow Chancellor, who was about to become Chancellor, at that time? So rather than inadvertently giving the wrong impression, perhaps we should put it on the record that in that transition period it would have been necessary and proper for the previous Chancellor to be in discussion with his successor, so that there would be no ambiguity about what would happen.
Mr Cash
The hon. Gentleman is absolutely right on that important point, and I was immediately coming to it—I have in my hand the explanatory memorandum, to which I referred before he intervened, precisely for that purpose. It stands in the name of the Economic Secretary to the Treasury. A scrutiny matter is still outstanding, so paragraph 26 comes under the heading of “Other observations” and states:
“The Government regrets that the Scrutiny Committees”—
those of the Commons and the Lords—
“did not have time to consider this document before it was agreed at Council.”
I can tell the House that that happened because we were in a caretaker period and the European Scrutiny Committee, as such, was not sitting in that interregnum. The memorandum continues:
“It should be noted that whilst agreement on behalf of the UK was given by the previous administration, cross-party consensus had been gained.”
That is why I made the point that the responsibility lies with both this Government and the previous one.
Austin Mitchell (Great Grimsby) (Lab)
I am following the discussion with great interest and some concern. As I understand it, we are talking about a decision that could have been taken, and was being taken, by a majority vote, and our outgoing Chancellor could not have stopped it anyway. Is that correct?
Mr Cash
People keep saying that, but let us examine the actual operation of the European financial stability mechanism. The final decision is taken under the regulations concerned—this is what happened in the context of Ireland—only after the request has been made by the member state. I do not know whether this is one of the reasons why the current Taoiseach—only for the time being, it appears—is in deep trouble, but that is possible. What I do know for certain is that the prescribed procedure laid down under the regulations made under article 122 of the treaty on the functioning of the European Union was infringed by the manner in which the International Monetary Fund, the European Central Bank and others moved into Dublin before a request had been made. As we can recall, the Irish Government were saying that they had not made a request and that they did not need the money. It is also true to say that Mr Socrates is saying much the same at the moment.
Austin Mitchell
The hon. Gentleman is being very patient with us and the serious explanation he is giving is well worth considering. I also understood that article 122 was intended to apply to a destabilisation of the euro because of some kind of natural disaster. The destabilisation that took place was caused by the inherent faults in the euro, so why has article 122 been extended to cover a destabilisation resulting from the cracks and failures of the euro itself, given that it should have applied only to natural disasters?
Mr Cash
The hon. Gentleman and I have engaged in debates on the European question since we first met. I have the greatest respect for him and he has hit the nail right on the head here, because this problem does not just arise because of our exposure to what happens in Portugal and Spain in the future; it also arises from the lack of a sound legal base for the decision taken in the first place by the outgoing Chancellor and endorsed subsequently by the incoming Chancellor. We know that there was a consensus and that an agreement was reached—that answers the question put by the hon. Member for Ilford South. I would not be going about this if I did not believe that substantial matters of principle and of huge cost to the taxpayer are involved.
Mr David
The hon. Gentleman has raised an extremely important point. I wish to emphasise that he is correct to say that there was a consensus between the outgoing Chancellor and the incoming Chancellor—proper discussions and consultation took place—but that was not the impression given to this House by the current Chancellor of the Exchequer.
Mr Cash
I was not necessarily here when an impression was being given one way or the other. What I do know is that I have an accurate record of what did take place. I also have with me an article from Monday 10 May containing what are clearly accurate descriptions of the position of the then Chancellor—I believe he was just still the Chancellor then, because the coalition agreement had not been entered into. I recall writing to the Prime Minister on that day, suggesting, among other things, that he should go for a minority Government. I also said that if he was determined to go down the route of a coalition, he should require the Liberal Democrats to abstain on any matters relating to Europe that came up. That possibly explains some of my concerns as matters have developed and more and more European decisions, roadblocks and other difficulties in respect of the decisions we took in our manifesto have emerged.
Austin Mitchell
I am grateful to the hon. Gentleman for giving way; he is very patient. I normally agree with his views, even though I usually express them in rather shorter compass. He still has not answered my question, however, about whether what was agreed at the meeting was a distortion of the original purpose of the machinery, which was intended for coping with natural disasters and should never have been extended to destabilisation and problems caused by the euro.
Mr Cash
Absolutely, and I shall elaborate on that very quickly. Article 122 concerns matters of emergency and natural disasters, and its use for the purposes of financial stability is clearly—as the European Scrutiny Committee has said—not based on a sound legal footing. That is the issue. I had made that point, but I am happy to repeat it. However, it goes further: because of the failure of the legal base, the whole deal is vitiated. That is the problem. The deal was done in an interregnum and by consensus between the two Chancellors, but it ends up being vitiated as a matter of law. That is very serious given that the whole deal is for €60 billion—£52 billion—but according to the right hon. Member for Edinburgh South West (Mr Darling), the United Kingdom is exposed to a risk of £8 billion.
Mr Redwood
Although we must ask the former Chancellor and the Chancellor to speak for themselves, as I understand it the former Chancellor quite properly consulted the then shadow Chancellor, who said, “You are the Chancellor”—he could not be sure at that point that he was about to become the Chancellor, because there was no coalition agreement—“and it is for you to make the decision.” It is also fair to say that I do not think that the present Chancellor objected to the proposal or sought to block it. I think he felt that it was not his decision to make. It was not a co-decision; it was a decision by the former Chancellor, which the present Chancellor knew about.
Mr Cash
It was indeed. Furthermore, this is not just a bit of esoteric dancing on the head of a pin. The Select Committee on Political and Constitutional Reform has examined the matter and I happened to be watching its proceedings when there was a discussion involving Professor Hennessey and two other eminent professors, Professor Hazell and Professor McLean. My hon. Friend the hon. Member for Isle of Wight (Mr Turner) asked a perceptive question about the status of the arrangement in the context of the Cabinet manual, which, as we know, is now out in the open and being discussed by that Committee in relation to caretaker Governments. The conclusion was that it was within the province of the incoming Chancellor to enter into such a bilateral arrangement in that context, in which he made his decision based on the information he was given by the outgoing Chancellor. My right hon. Friend the Member for Wokingham (Mr Redwood) is right. The problem is that, if that was unlawful, there was no basis on which either of them should have come to that conclusion.
Mr Redwood
As I understand it, the current Chancellor refused to make a decision. It was not a co-decision. He did not object or support it, but said that it was for the outgoing Chancellor to make the decision. Of course, in practice, if he had not agreed he would have unscrambled it when he got into office, because he had the majority and the outgoing Chancellor did not.
Mr Cash
I am very happy for that matter to be looked into further. My right hon. Friend might well be right, but I have an article that quotes the outgoing Chancellor of the Exchequer on the BBC’s “Today” programme, saying:
“Overall it is a very good deal for all of us in Europe but also for the wider world. It is”—
something for us “together”. He also said:
“Our exposure for the additional amount of money could be £8 billion”.
The article also states that he
“confirmed he had spoken to Shadow Chancellor George Osborne and Lib Dem Treasury spokesman Vince Cable about…responsibility for it”
and goes on to state:
“All three had agreed ‘there was no way Britain was going to underwrite the euro’.”
When he was pressed, he said:
“I am not going to disclose the conversations we had, because we had them on the basis that they were private and confidential.”
The article goes on:
“A statement issued after the talks confirmed that the new fund placed the potential risk squarely with the eurozone.”
That worries me. I do not know where that came from, because it most emphatically is not the case, as we are not part of the eurozone.
I hope that the Select Committee on the Treasury will look to considering all that. We are talking about substantial sums of money, about an interregnum period and about a rather unusual situation. We might be talking about errors of judgment involving considerable exposure for the taxpayer. For all those reasons, it is very important that we get to the bottom of this. We do not need to turn it into a witch hunt—I do not believe in those sort of things—but as regards scrutiny and accountability, this is an important matter that needs to be resolved properly and efficiently.
Proper answers need to be given, the Treasury needs to put forward the arguments that it presented and it should disclose the papers. We know perfectly well that, in the kerfuffle of 9 May and the days leading up to it, the then Chancellor might understandably have had a lot on his mind. In the circumstances, all sorts of things could have gone wrong. That is the moment, as I see it, when important strategic decisions involving enormous amounts of money and affecting the taxpayer on what I would term an unlawful basis—a basis that certainly is not legally sound—need to be considered very carefully.
It might not surprise some hon. Members that I tabled amendment 8. In all such circumstances, other than the situation vis-à-vis the Republic of Ireland, attention should be drawn to these matters, but under no circumstances whatsoever should we give money to Portugal or Spain when there is a facility, agreed at around the same time, for €400 billion to be available for the eurozone. Now a new arrangement has emerged which will be made available permanently after March 2013. If Portugal and Spain are going to go under, however, they will definitely go under before March 2013.
Mr Redwood
On the important point raised by the hon. Member for Great Grimsby (Austin Mitchell), is it not the case—my hon. Friend the Member for Stone (Mr Cash) would know—that the German Government are so worried about the legality of what was done under article 122 that they think we need a new treaty to cover that point?
Mr Cash
My hon. Friend is absolutely right. I have here an incredibly interesting article from this week’s edition of Newsweek. It is headlined, “To Rule the Euro Zone”. Hon. Members will know that I have tried to take a mild interest in European matters since I came to the House—I notice that one or two people are quite surprised—and I do so for good reasons. Indeed, in the first book I wrote on the subject, “Against a Federal Europe”, I drew attention to what I then perceived to be a significant danger that Germany would take a disproportionate and predominant role in European affairs, for which I received a great deal of censorship and some abuse. It was suggested that I was talking about the Germans in rather disrespectful terms, which was quite untrue. However, the sub-heading to an extremely interesting article by Stefan Theil, dated 23 January 2011, reads:
“The unified currency was supposed to limit German power. Now the Germans are in charge—and no one is happy, not even the Germans.”
The article merits careful reading.
Mr Clappison
I am listening to my hon. Friend with great interest. In his analysis, if the events that he predicts were actually to occur, how would they be covered by the Bill as it stands, without the benefit of his amendment, or would they not?
Mr Cash
The short answer is not at all—that is the problem. That is why I tabled the amendment. I am very sad that more people do not have the opportunity to listen to this, because we are talking about a grand total of £8 billion of British money, which is a vast amount given the austerity that is expected of people. After the Irish bail-out payment has been excluded from the same zone, there is also the completely unwarrantable notion to which the decision commits us, unless it is unlawful and is challenged. I invite the Government to challenge it in the European Court—that is the route they should be adopting. That is what I have recommended to the Chancellor. I said, “You must vote against this and challenge the legality of it.” Whether or not he entered into some understanding at the time is a matter to be unravelled, but what is certain, to come back to the point made by the hon. Member for Great Grimsby (Austin Mitchell), is that the decision does not come within the framework of article 122—and the European Scrutiny Committee believes the same.
Austin Mitchell
I am puzzled, because the hon. Gentleman is attaching his faith to the €400 billion fund, which would mean that the new arrangement, which was agreed by the then Chancellor and the European Council on 9 May, would not be necessary. That is a puny fund compared with the scale of the problems. If Portugal goes and Spain follows, all that fund will be absorbed and will be necessary, and we will have to fall back on the provisions of article 122. The Irish loan has been portrayed by the hon. Gentleman and the Chancellor as a one-off loan between friends and business partners, but it must have been paid under the article 122 arrangement, so we have already sold the pass.
Mr Cash
The hon. Gentleman is not wrong to say that the situation has already taken place for Ireland, but that must be seen in light of what has yet to be established—whether or not it was lawful. More investigation is needed on whether that payment would ultimately be ultra vires, or beyond the law, and therefore reclaimable. I do not want to go too far down that route other than to say it needs to be looked into. Furthermore, the financial stability mechanism has not yet passed the scrutiny of the European Committee that is meeting on 1 February, so it is still subject to a decision of the House, although some might argue that the Rubicon has already been crossed.
Austin Mitchell
This is an important amendment for which I shall certainly vote, and I hope that the hon. Gentleman pushes it to a Division so that I have that opportunity. The legality of the decision and the use of article 122 in this way—for a purpose for which it was not intended—is subject to a decision by the European Court, which is a federal institution and always rules in favour of the federal side of the argument. So, I am afraid that his hope that the decision will be ruled illegal will not prevail.
Mr Cash
That is a general proposition with which one might agree in many instances, but analysis of the use of article 122 in this case, if it is examined as carefully as it should be, would give rise to so many uncertainties that the Court would have grave difficulty in trying to justify its use. However, that is looking to the future.
Mr Clappison
It is difficult in the field of civil and criminal procedure to disconnect one step from another. The European Court of Justice, whose jurisdiction will be opened up, can always come along and make a decision that goes far beyond what was originally envisaged. We must look at the whole system of civil and criminal justice, including whether decisions are taken in this House, or whether we abnegate self-government and hand those decisions over to the EU.
The hon. Gentleman can make his case, but I am concerned about the scrutiny and decision making that take place each time we take one of these decisions. He referred to technical matters, but in the course of this short Parliament we have already had two very important directives in the field of freedom, security and justice: the European investigation order and the draft directive on the right to information. I do not know whether he or his colleagues took part in the debate we had in the European Committee, but it was accepted on both sides—it was put forward by the Secretary of State for Justice—that it was an important step in itself. I am not sure what his party’s participation in that was, but that was the basis of the decision. That process took place under the existing scrutiny of this House.
The European Commission has an ambitious programme for the year ahead, and the Minister has conceded that there are 30 or 40 more such measures coming along from the EU. In Mr Barroso’s work programme, “Pursuing the citizens’ agenda: freedom, security and justice”, the first three items listed are: a legal instrument on European contract law; a regulation on improving efficiency and enforcements on judgments in the European Union; and a directive on the rights of and support for victims of crime. With respect to the hon. Gentleman, I do not think any of those could be described as minor or technical.
Mr Cash
My hon. Friend is not only an expert on this matter, but knows what he is talking about. The reality is that every time one of those decisions is taken—I say this with great respect to the hon. Member for Cheltenham (Martin Horwood), when he starts talking about comparative advantage—it relates to people and justice. It is about whether they get a fair trial and matters of that kind, which are matters that his constituents would be concerned about. It is terribly important to remember that one paragraph of one of these directives, or even one line, is equivalent to an entire Act of Parliament that we might spend the best part of six months discussing in both Houses. Does my hon. Friend agree that under the proposals such matters will just go whistling through?
Mr Clappison
The hon. Member for Cheltenham (Martin Horwood), whose opinions differ from mine, has made his case very honourably, and it is one that might attract many people outside this House. I have to ask whether he is happy with the ways in which those matters are currently dealt with before this House. The amendment tabled by my hon. Friend the Member for Stone seeks to make those matters subject to an Act of Parliament and a referendum. My own humble amendment, which we will come to later—I hope that this debate will not prejudice its consideration—would make matters within the area of freedom, security and justice subject to approval by a vote of this House, which I hope is not too radical a step to propose.
On any view of it, these are matters that will come before the House, whether as my hon. Friend describes, or, as I shall try to argue later, as a minimum, in the way I am seeking. The hon. Gentleman must look at the system that we have in place for scrutiny of these matters as they come before the House. When they come before the House, as in the case of the investigation order and the right to information order, which we have already had, it is very hard for the House to express its view on those important issues.
My right hon. Friend the Minister has brought forward some proposals and made a statement last week on how to improve scrutiny of opt-ins to the area of freedom, justice and security. If I may pay my right hon. Friends the Minister and the Foreign Secretary a compliment, I should say that they have made a real step forward with their proposals, but we need to find out just how far that step forward is going to go.
The following questions are relevant to amendments 36, 37 and 38, because they cover the same area. In each case, when the opt-in to certain European areas such as freedom and security is exercised, a decision will be taken whether the United Kingdom is going to opt into specific measures that the European Union has brought forward. There have been half a dozen already, and there are another 30 or 40 down the track, but, under my right hon. Friend the Minister’s scrutiny proposals, will the House have an opportunity to vote on each occasion? That is very important.
How will the scrutiny override proposals work? I hope the hon. Member for Cheltenham agrees on this point, because he would want to make his case about what a good idea such measures were, and what benefits they would bring. I should want to make my case that such measures should be decided in the House, but we could each make our case and have a vote in the traditional way. I should hope that that was not too dramatic a step for any hon. Member.
I am concerned about what my right hon. Friend the Minister said about scrutiny override in his statement. That is one aspect on which we could improve, because he said:
“As currently, the Government will not override the scrutiny process unless an earlier opt-in decision is essential. Where the Government consider an early opt-in to be necessary, it will explain its reasons to Parliament through the statement set out above. In these circumstances, it would usually be appropriate for the statement to be made orally.”—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]
I am not sure that we should put the administrative matters that lie behind the decision, the timetable of the European Union and whatever interminable administrative processes have to be gone through in the Foreign Office before the House’s approval. It really does not put us in a very good place—behind what are termed “essential” decisions. The House should have an opportunity to express its view on the decision first, so I invite my right hon. Friend to go away and think about that. It is all very well having a statement after a decision has been taken, but the House would like the opportunity to express its view through a vote before such a decision is taken.
I have taken part in European Scrutiny Committee debates, and decisions have been taken, the Government have agreed to legislative measures and then we have had the debate in a European Committee. We do not have any opportunity to inform the Minister’s thinking or to debate the matter before the decision is taken, let alone to take a vote on it. Under the current procedures of the House, we cannot do so; it is very difficult to have a substantive vote on security matters. The most that the European Scrutiny Committee can do is to hold a matter in reserve until it has been debated in a European Committee, but neither those nor debates on the Floor of the House provide for a vote to approve or disapprove of particular legislation.
Austin Mitchell
That is true. Under the old system, the inflation rates in France and Italy were higher than that in Germany, so they were constantly getting out of kilter and becoming uncompetitive. They constantly resorted to devaluing, which brought them back to a competitive level because it reduced their costs of production in terms of foreign currencies. There is a history of France and Italy devaluing. They cannot do that when they are in the euro.
Mr Cash
Would the hon. Gentleman be interested to know that the Library has given me some figures showing that our balance of payments deficit with Germany was £12 billion in 2009? Heaven alone knows what it is now. Between 1999 and 2009 there was a deficit of £5 billion between the other 26 EU member states and ourselves, but we have a surplus of £11 billion with the rest of the world. His point is extremely sound—the EU is just not working.
Austin Mitchell
I am grateful for that point, which is absolutely true. We are earning a surplus in the rest of the world, which then goes as a tribute to finance our deficit in Europe. Before we entered the Common Market in 1972, we had a surplus in our trade with Europe. It then became a deficit, which has become ever heavier as the years have gone on because of our economy’s uncompetitive nature compared with the German economy. All the other weaker European economies face the same problem, and there is no way for them to get around it without facing a diet of cuts, freezes and squeezes for decades, and having to depress the living standards of their own people to keep costs down. That strain is built into the system, which Germany dominates and swamps because of its competitiveness and low inflation. Good luck to it—it has worked for that and run its economy in a very sensible fashion, but a common currency cannot be maintained in that situation. There will therefore be crises.
Those inevitable crises have, under article 122 of the Lisbon treaty, now been portrayed as the results of a natural disaster. That means that we, who have wisely stayed out of the scheme and warned of the consequences of going ahead with that insane regime, must also contribute to cost of clearing up the mess that is implicit in the system. That is a monstrous imposition.
I take it that at his last Council of Ministers meeting on 9 May, our previous Chancellor was conned. He was told that article 122 would apply under qualified majority voting, so it was no use his opposing it because we would be bound by it in any case. That was just not true, because if it applies to mutual support in the event of natural disasters, it cannot apply to faults inherent in the structure of the euro itself. That is not a natural disaster; it is a folly of man.
Mr Cash
I add a point that I really ought to have made in my own contribution. When the European Council arrived at the new mechanism that it has just set up, which the Prime Minister announced the other day, it used the most extraordinary language. It used the expression that there was “no need” for the continuation of the mechanism that was set up last May. It is not anything to do with need, however; it is about the fact that they know perfectly well that it was unlawful.
Austin Mitchell
Absolutely right. We need to be intellectually devious in trying to read through European documents, because they are extremely cunningly written and always cover up the reality very well. The same is true of Government statements on matters European. The Government do not want the full horror to emerge, so statements are rewritten to make them safe, saleable and acceptable. Once again, the hon. Gentleman is correct, and he has done the Committee a great service today in warning us of the situation and pointing out the consequences if it is prolonged. I believe that the arrangement extends to March 2013, or is it May?
Austin Mitchell
Right, and then it will lapse. Until then, we could be liable for enormous sums. Imagine what the British electorate would say. We have already extended a massive loan to Ireland, even though the Chancellor tells us that our country is over-borrowed and cannot borrow any more because world markets will cancel our credit cards and stop our credit on the bond markets. Suddenly, however, he can borrow huge sums—billions—to help Ireland. He says that it is a one-off and not a precedent, but if it is carried out under article 122 of the Lisbon treaty, it is a precedent for acceptance of a mechanism that is designed to deal with natural disasters.
The hon. Member for Stone hoped that the mechanism would be ruled illegal by the European Court, but I have given up faith in the European Court. It never rules how I want it to rule, whereas our courts do sometimes. It is probably composed of Liberal Democrat jurists, for all I know. It certainly gives that appearance.
Stephen Gilbert
It is a pleasure to have the opportunity to contribute to this debate. Anybody watching us must think that they have fallen through the looking glass. We are debating amendments to a Bill that prevents further transfer of power from the UK to the European level of government, in the context of a coalition that has said that it will allow no further significant transfers of power in the duration of its office, and yet Conservative and Labour Members are attacking the Bill while Liberal Democrat Members try to defend it.
Mr Cash
I cannot resist intervening. The hon. Gentleman knows perfectly well that the Minister for Europe has said that there is no chance or intention of holding a referendum under the proposals in this Bill until the next Parliament at the earliest—we are in dead parrot territory. The Minister will not deny that. The debate is about what is happening right now. Europe is in total chaos. Every country bar Germany is imploding, but the hon. Gentleman is carrying on as if everything is fine.
Stephen Gilbert
I feel like I am entering into my own version of “Back to the Future” in debating the EU with the hon. Gentleman. The Government’s position is quite clear. There will be no referendum over the next five years because there will be no significant transfer of power or competences. The Liberal Democrats welcome that, and I would have thought that he would too.
Stephen Gilbert
The Bill is absolutely clear on that. A number of criteria have to be met and a number of hurdles must be jumped. We debated the significance test yesterday—the hon. Gentleman was in the Chamber and would have carefully listened to the debate—but let me give him an example. At the moment, in the objectives of the EU as I understand them, there is no requirement to combat climate change. Of course, the EU is rightly and properly taking action on environmental issues, but the simple codification of that into one of the objectives of the EU would be quite a minor change, and one that we would all welcome and accept as necessary and important.
Mr Cash
Almost everything the hon. Gentleman says demonstrates the complete divergence of views between many Conservatives and many Liberal Democrats. Does he accept that a key problem facing the coalition Government is not only the integral federal views of the Liberal Democrats on matters relating to Europe, by which they are totally besotted, but the implementation of the Lisbon treaty? That is where the problem arises. People talk about transfers of power, but actually, the implementation of existing arrangements under the Lisbon treaty is causing so much difficulty—it is also an embarrassment to Opposition Front Benchers.
Stephen Gilbert
I am grateful to my hon. Friend, but it is not for me to judge who or what might be an embarrassment to those on the Front Benches. The reality is that there are clearly a number of safeguards in the Lisbon treaty, including the emergency brake clauses, which can be exercised by national Parliaments. In some cases, they would not require the UK Government to take a view—Parliament can take a view of its own volition. However, I shall resist further temptation from hon. Members and press ahead with my comments on some of the specific amendments in the group, particularly amendments 81, 54, 8 and 79.
Amendment 81 is in the name of my hon. Friend the Member for Witham (Priti Patel), and I have a slight declaration of interest to make in that my great-grandfather was a fisherman along the north Cornwall coast out of Padstow. My constituency also includes many fishing communities, for whom the common fisheries policy in its current iteration is a significant problem. There is huge agreement across the House that having nationally decided quotas rather than regionally set quotas is a problem. The discard policy is also a problem, because it is absurd for this nation to have to throw back hundreds of tonnes of perfectly good fish when we could be using it to feed people in this time of pressures on food security around the world and concerns about the sustainability of fish resources.
I share my hon. Friend’s determination to secure real reform of the CFP. We need to put sustainability at its heart and ensure that local communities are driving it. We also need to review the policy on discards. However, amendment 81 is—to shamelessly snag a pun that has already been used tonight—a red herring. I do not see how it will strengthen our hand when it comes to reform of the CFP—
Mr Cash
On the question of human rights—of course, our manifesto committed us to the repeal of the Human Rights Act 1998—what makes the hon. Gentleman think that the people of the United Kingdom would have been that much worse off if the European Human Rights Act had never been passed? What makes him believe that the vast amounts of money going to all the lawyers in the human rights environment are doing the people of this country any great service?
Stephen Gilbert
I am grateful to the hon. Gentleman for his contribution. The European Human Rights Act gave rights to people in this country that they did not enjoy previously. Those rights are now in statute. Of course, hon. Members can make the argument that the House could have conferred those rights—but then this House is exactly the body that did confer them, first through the 1972 treaty, and secondly under the previous Government through bringing the European human rights treaty into British statute, as I understand it.
European Union Bill (Programme)(No. 2)
William Cash Excerpts(15 years, 1 month ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Lidington
As far as I am aware, it has not been a question of a guillotine. We have the normal 10 o’clock rule in place. As my hon. Friend the Member for Wellingborough (Mr Bone) is aware, the Government were keen to ensure that the House had sufficient time to consider this important legislation. We therefore proposed five days for the Committee stage in the programme motion that was tabled on Second Reading. That had been agreed in advance through the usual channels. My recollection of that day’s debate is that there was no attempt to divide the House on the programme motion at that time.
With all respect to my hon. Friend, I am conscious that he cares passionately about the Bill and about the relationship of the United Kingdom with the European Union. He has strongly held, honourable and principled views on that matter, and I am sure that if he catches the Speaker’s eye in the course of today’s proceedings, he will speak trenchantly on the subject, as he has done on other occasions recently. But when it comes to a debate, there is also a duty on all Members of Parliament to consider the time available for the various amendments that have been grouped together, and to measure their own contributions to that debate accordingly.
Mr William Cash (Stone) (Con)
Does my right hon. Friend agree that if there were any attempt during the proceedings on the programme motion or at any point during the day that might give rise to suspicions that Members were talking matters out in order to prevent important business being arrived at, his words might sound rather hollow?
Mr Lidington
I am sure that my hon. Friend the Member for Stone (Mr Cash), who has been here for a long time, knows that a balance needs to be struck between the time that is needed to examine important political and constitutional issues fairly and in the depth that both the House and the general public would expect, and the time that is available for debate, bearing in mind the many other priorities that the House has to consider. I would say gently to my hon. Friend that I believe that he spoke at some length—more than 60 minutes—during the first day’s proceedings in Committee. I hope that so far he has not had reason to complain that his contributions are being crowded out.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
I rise briefly to plead that we do not divide the House on this matter, because time is pressing. However, I am prepared to forecast that we will not get beyond the first group of amendments today. The Bill, if about nothing else, is about what might trigger a referendum, and the first group is concerned with that matter. It is extremely likely that we will not discuss much else today, given that that is the heart of the Bill. That suggests that the timetable motion is ill-conceived. Although it is generous of the Government to add an extra day, that does not resolve the problem we will have today, which is that it is most unlikely that we will discuss anything about clauses 2, 3, 4 or 5, the new clauses relating to clauses 1 to 5, or anything else. That is not what was envisaged when we discussed the strengthening of Parliament in the previous Parliament. A great disadvantage of these very curtailed debates on contentious pieces of legislation is that there is an incentive for people to use up the time for the convenience of the Government, rather than to provide a platform for those who actually want to discuss the Bill.
Mr Cash
Does my hon. Friend recall the speech made by Mr Speaker only last week, in which he drew attention to the necessity not only to maintain the sovereignty of Parliament, but to ensure that the Government are held properly to account? That was from Mr Speaker himself—a most unusual, but very important speech. What we may witness today would be in defiance of the principles that he enunciated.
Mr Jenkin
I agree with my hon. Friend. We have yet to find a way of respecting the Government’s right to obtain their legislation in reasonable time, subject to the consent of the House, and of reasonably limiting the time spent on debate, while ensuring that all parts of the Bill are debated properly. We do not want to start following the example of the other place, where a tiny minority of Members are brutally filibustering, but we do need to improve the procedures that we have today. It is a sad comment on the state of the House of Commons under this new Government, who purported to believe in something called “new politics”, that we are carrying on the old politics implemented by the Labour Government.
European Union Bill
William Cash Excerpts(15 years, 1 month ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr David
I have read all the evidence submitted to the Committee, and the significant point about that particular quote was the use of the word “gesture”. The Bill is a gesture, and I will say more about that later. It is a gesture to placate hostility to the European Union among Government Back Benchers, but it is not a serious, considered piece of legislation.
Mr William Cash (Stone) (Con)
The hon. Gentleman has referred to Professor Hix’s evidence to the European Scrutiny Committee. Will he note that the professor also said that previous EU amending treaties—Maastricht under a Conservative Government and Amsterdam and Nice under a Labour Government, as well as the Lisbon treaty—should all have been subjected to referendums? If the conditions of the Maastricht referendum campaign, which I founded and which had about 750,000 signatures, had been implemented by the Government at the time—let alone those for Amsterdam and Nice—is it not right to say that we would not be sitting here today discussing this nonsense?
Mr David
No. I will move on. It is important that we realise that as well as the significance provision, the exception provision and the specific exclusion of a referendum on accession of any kind, our good friend the explanatory notes make matters worse and add to the obfuscation of the Bill.
I shall quote from the explanatory notes. Although they are wholly inaccurate and unsatisfactory, they are of some significance. They state that the so-called list in clause 4(4) is “illustrative rather than exclusive,” and they continue:
“In other words, there may be other types of treaty change which do not transfer competence or power from the UK to the EU and therefore do not trigger a referendum.”
What are the other types of treaty change? Has anyone got any ideas? Has the Foreign Office been rubbing its crystal ball? It is not good enough. There should be a clear indication of what the other types of treaty change are.
Mr Cash
The shadow Minister referred earlier to the meaning of the word “significance”, and he has just mentioned it again. Is he aware that the “Oxford Dictionary” defines “significance” as
“having a particular meaning; indicative of something”,
and goes on to give as an example,
“in times of stress her dreams seemed to her especially significant”.
Does he know something we don’t?
Chris Heaton-Harris
I concur with the hon. Lady. Several manoeuvres have taken place under previous Governments to determine who is Minister for Europe. The incumbents do not often stay in the role for long. Either they are, like the current incumbent, sufficiently ambitious to move up the ministerial pay scale, or they could easily be a journeyman on the way out. There is a historical context to some decisions about conferring a competence on an EU agency, and one needs to know what the agency was formed to do in the first place. I perceive such conferral as part of the mission creep in Europe. The European Commission, in establishing so many new agencies on such a regular basis, creates its own quangocracy.
When I was a Member of the European Parliament, it was difficult to police the spending and powers of an agency that the European Commission set up. Indeed, it was more difficult than policing some of the agencies and quangos that Governments of different complexions established in this country. If those agencies grab power and take more competences—even for a valid reason at the time—it is important that the Minister of the day understands the historical reasons for setting up the agencies and the intended limits on the powers. I was present when Eurojust and Euro-magistrate were set up—all part of the European public prosecutor, which I look forward to debating tomorrow, and all part of a significant salami-slicing approach of taking powers away from individual member states, and building something that nobody particularly wanted.
I understand that any ministerial decision on the significance test has a kind of double lock. It has been drawn as narrowly as possible, and I would therefore like the Minister to answer a couple of questions. First, I want to check whether any treaty change will require an Act of Parliament. I should like to think that Parliament will have every opportunity to vote for a referendum on such a change. That is why I support amendment 11. Secondly, the decision on significance is subject to judicial review to ensure that decisions not to hold a referendum only on genuinely insignificant matters are backed.
Those matters are important because, as I said, they are about getting the British people to trust the decisions that we make on Europe again. No member of the public wants decisions to be made behind closed doors, without reasonable explanation. I emphasise strongly to the Minister that the amendments are not about trust in him, his ability to undertake the role or his decisions. I would like clarification that Parliament will have a say because that is what we were sent here to do.
My hon. Friend the Member for Stone (Mr Cash) has tabled some tempting amendments to which the Minister and the hon. Member for Birmingham, Edgbaston alluded. In amendment 1, my hon. Friend manages to do a fantastic decapitation job on the Bill that would basically put all changes up for referendum. Although there is validity in my hon. Friend’s reasoning—he has seen through the years a lot more of what goes on in this place than I have—I do not want everything to be decided by a referendum. The British people will not take that. They want Parliament to say, “These are important decisions and there will be a referendum, a debate in both Houses, or an Act and a vote,” and the Bill makes such provisions. We can then choose whether to amend a measure so that it is subject to a referendum because we believe it to be so important. If we think that a subject is insufficiently important, we can decide not to have one. I am tempted by amendment 1, but I am simply unable to support it for those reasons.
I was tempted by amendment 1 because of the accession exemption, which the hon. Member for Caerphilly and a number of hon. Members mentioned. I tabled an amendment on accession to the EU that we will not decide on today, just as we will not decide on many amendments that have been tabled. Amendment 21 is exactly as the hon. Gentleman described it. It would mean that a 3.5% dilution of our voting powers on the European Council triggered a referendum. That is a catch-all—it is completely designed as such—so that we would have a referendum on the accession of big countries.
Given that, amendment 1 all of a sudden comes back into play and I am once again tempted. I would much rather have had a comprehensive and sensible debate on clauses 4 and 5 today or tomorrow or in extra time.
Mr Cash
I understand where my hon. Friend is coming from, but there is a difference between significance and the opinion of the Minister on the one hand, and the question of exemption on the other. Clause 4(3) says that certain matters are forbidden territory. I am tempting my hon. Friend by saying that that whole category of exemption should clearly be removed, even if there will be a debate on what is or is not significant.
Chris Heaton-Harris
I understand what my hon. Friend says and I am quite sorely tempted, but my problem, as I described earlier, is the minutiae that might be sucked in under amendment 1.
Mr Cash
I understand my hon. Friend’s reasoning, but the specific exemptions are set out in clause 4(4)(a), (b) and (c). I understand that he would not want my proposal to go too far. The British people expect these things, which after all include matters such as Turkey and treaties of the type proposed by the French only the other day, not to be exempted. The British people would be left out and not taken into account on such decisions and treaties, yet they would have the most incredible impact on them. I shall explain that later.
Chris Heaton-Harris
I always appreciate the lessons that my hon. Friend can teach a humble new Back Bencher and member of the European Scrutiny Committee, and I very much look forward to receiving them, but he makes a salient point. This is about what the people who put us here expect. That is why I ask the Minister please to listen to what hon. Members say about the significance clause and amendment 11. The proposal is not against him; it is about enhancing Parliament and its transparency.
Mr Cash
Amendments 1 and 3 stand in my name. My comments boil down to what I said in my interventions on my hon. Friend the Member for Daventry (Chris Heaton-Harris) and were somewhat anticipated by the Minister earlier. In a nutshell, I see no reason why clause 2 should refer to an exemption condition or subsection (3) should state:
“The exemption condition is that the Act providing for the approval of the treaty states that the treaty does not fall within section 4.”
Without any further let or hindrance, clause 4(4) would exclude from those arrangements that would result in a proposal for a referendum
“the codification of practice under”
the treaties already established
“in relation to the previous exercise of an existing competence”,
and
“the making of any provision that applies only to member States other than the United Kingdom”.
That is, I think, an incredibly important point. Also, as we have debated already, it would remove
“in the case of a treaty, the accession of a new member State”,
which in this case would include Turkey. In the context of what the Government clearly want to exclude—in other words, their positive policy decision not to allow the British people a referendum on certain treaties of immense importance—they are disavowing the very intentions and principles that underpin the Bill.
I have made that point before over the question of sovereignty, where there is a massive contradiction between what is on the tin and what is in the Bill. I say again that those of us who spoke in favour of the sovereignty of Parliament won the argument, but that was not on the tin and it was not what the Whips—or, indeed, the Prime Minister—wanted, so it was voted down. That does not reflect particularly well—if I may say so—on our democratic system. We are faced with exactly the same point here. We are told on the tin that we will have a referendum on important matters—that is the general idea as explained in the Foreign Secretary’s article in The Sunday Telegraph only a week ago—but on examination in Committee, it becomes perfectly obvious that certain kinds of treaty will be excluded. I have mentioned the example of Turkey, but I want to give another specific example of the kind of treaty that would be excluded.
Mr Cash
I think that my hon. Friend can wait, if he does not mind.
I want to give an example that deals explicitly with a matter of immense importance that is coming up in the lift. In fact, it is not merely in the lift; the lift has come up and the doors are opening. Monsieur Fillon, the French Prime Minister, came over to see the Prime Minister specifically about this issue, and I have here the exclusive interview in The Times with Monsieur Fillon. I also had the opportunity to meet the French Minister for Europe and discuss the matter with him personally and privately.
There is no doubt about what they want or what they intend, which is effectively a twin-track treaty, which is a treaty entered into by us and the rest of the European Union—that is, with all 27 member states, in order to legitimise it within the framework of the treaty arrangements—so that they get their treaty and, within that treaty, an arrangement specifically designed to exclude the United Kingdom, even though we would be gravely affected by it. It would apply only to those other member states.
Clause 4(4) refers to
“the making of any provision that applies only to member States other than the United Kingdom”.
They look like innocuous words, but what do they actually mean? That exemption condition—in other words, no referendum, to put it bluntly and simply—means that there would be no opportunity for a referendum if the other member states agreed to go down that route. They may well do that, despite all the protestations to the contrary, some of which were rather subtly indicated by the Prime Minister in his press conference, albeit without excluding the idea of any such treaty; rather, it was merely on the supposition that that might not affect us as much as we believe, or as I believe the British people would believe if they saw it in black and white. What do those provisions include? In particular, they include arrangements of that kind relating to fiscal, political, social and employment measures, not to mention other matters that would affect the relationship between us and the rest of the European Union. A massive juggernaut would be created, through a form of extremely enhanced co-operation between those member states, that would have an enormous impact on the United Kingdom.
I have been looking at the balance of payments between us and the other member states. The figures, which I got from the Library, only bring us up to 2009, before the catastrophe that hit Europe occurred, and they are alarming. The imbalance in the balance of payments between us and the other member states has been moving critically in the wrong direction. I could give the precise figures—I may do so later—but we only have to consider the following example, which was on the “Today” programme this morning. If one had listened to the programme, one would have heard about Belgium, which is in massive crisis, with protests and people on the streets, and no Government for 22 months. Greece is in absolute chaos, with protests and implosion, while Ireland, with its political crisis, is totally imploding. Spain has 4 million unemployed, with 40% youth unemployment and people on the streets on a massive scale today. Similar problems are also occurring in Italy, and there have been riots and serious unrest in France, too.
The bottom line is that Europe is not working according to the economic governance that has been prescribed. Yet under what is proposed, the opportunity to address the very kind of treaty that would enhance the ability to confront us with a massive juggernaut of policies that have been going wrong—policies that would undermine the opportunity to grow from our 45% to 50% investment in Europe—would be severely depleted. That would be the most damaging kind of treaty that could be entered into. Indeed, as I said in The Times on the day that the French Prime Minister came over, it would be the kind of treaty that I would expect our Prime Minister to veto on behalf of the British people. However, we cannot have confidence that that would happen, because of the argument being presented. This Bill was introduced on 11 November, when we know that treaties of the kind that I have just described were already being anticipated, however damaging and disastrous they would be for the very people of this country who, if they knew the facts, would say, “I insist on a referendum on any treaty relating to arrangements of this kind.”
It would be an abomination for us to be confronted with the kind of arrangements that are being put into place—arrangements that would be so damaging to our growth and our relations with the European Union. That is why I say that this exemption provision has to be taken out of the Bill, for precisely the reasons that I have given. I do not need to enlarge on that point, but I absolutely insist that these provisions should be taken out. I look to the Minister, if he thinks that I am wrong, to give me a reasoned answer as to why.
Ms Gisela Stuart
I rise to speak to amendment 11, on which I hope the Committee will have time to vote. The amendment goes to the heart of what is wrong with the Bill. There are plenty of other things wrong with it: it is inconsistent, and all kinds of other things, but let us leave that aside for the moment. The hon. Member for Daventry (Chris Heaton-Harris) made an important point when he said that there was not a particularly clear party political divide on Europe, and that there were pros and cons on both sides. Very few people vote for their Member of Parliament because of the candidate’s view on Europe. They do, however, have a sense that, in a parliamentary democracy involving the Crown in Parliament, the House will ultimately have to decide on these matters.
What worries me about the whole construct of the Bill, which purports to strengthen Parliament, is that it will actually do no such thing. There is a sense of “Oh God, make me virtuous, but not in this Parliament”, and, because one Parliament cannot bind another, God knows what will happen in the next one. However, the default position will introduce the judiciary into the proceedings. It was bad enough that, when we were discussing parliamentary sovereignty, we were seriously asking whether it was a common law concept that would be open to judicial interpretation. It is not. The default position is that there must be a substantive vote in the Commons, and that that must be the ultimate decider if there is any doubt. There are manifold reasons why people have lost trust in the political process, but it is true to say that all parties have a tendency to behave differently once they are in government. They are much less inclined to ask the people than they were when they were out of government.
I am fundamentally in favour of the accession of Turkey to the European Union, but I would not like to go out and campaign in a referendum on that question. The Bill calls for referendums on significant changes. At the time when Turkey might accede to the European Union, its population will be larger than that of Germany. It will be the largest country in the EU by population, and its voting weight would therefore be larger than that of any other country. Anyone who argued that Turkey’s accession did not represent a significant change would be living in cloud cuckoo land.
Mr Clappison
My hon. Friend makes a very fair point. Why are we making all the other requirements for a referendum clear on the face of the Bill if we can simply tack something on to Report or Third Reading? Why are we bothering to go through the whole process? To leave out this question, when we are making all those other requirements, would leave a significant gap, and in times to come we might contemplate with some regret our failure to fill in that gap. I cannot see the great problem with requiring a vote of the House to approve a Minister’s opinion. On these Benches, and probably in other parts of the House, Members stood on a manifesto that promised greater parliamentary scrutiny, and this is an opportunity to fulfil that promise. I can see no great obstacle to doing that.
Mr Cash
In supporting amendment 11, may I ask my hon. Friend whether he is aware, as I became recently when the Finnish delegation came over, that Ministers in Finland—and certain other member states—have established a very good practice whereby they must appear before the Finnish Parliament’s equivalent of the European Scrutiny Committee to ensure that there is compatibility between what goes on in Parliament and what the Minister decides on such important matters?
Mr Clappison
With his great experience, my hon. Friend makes an important point, and there are similar arrangements in the Danish Parliament. The House should seek to have the best arrangements possible. I welcome right hon. and hon. Friends’ movement in the right direction, but if they do not move on this point, they leave a significant gap in future. Briefly, I will try to explain how big a gap that could be.
There are only two clauses that cover a statement of significance by a Minister and to which the significance test applies. The others all concern competences or changes in the voting procedure. However, these two clauses are very important, as they cover the transfers of power that are apt to be made under the simplified revision procedure of article 48(6) referred to in clause 4. I will give way to the Minister for Europe, who is looking very interested in these points, if he disagrees with me. The powers that Ministers decide are significant enough to warrant a referendum, if they are transferred to the European Union, are those that will come to the House as a result of the simplified revision treaty. That important procedure was introduced specially by the treaty of Lisbon. I will give way to any Member, including my right hon. Friend the Member for Charnwood (Mr Dorrell), who wants to disagree. That procedure made it easier and quicker to make constitutional change, and to bring about a transfer of power from nation states to the European Union.
We have spent some time debating whether we should have had a referendum on the treaty of Lisbon, the treaty of Maastricht, the treaty of Amsterdam or the treaty of Nice. However, under the simplified revision treaty, a treaty in those forms is not required. There is no requirement for a convention and all the other lengthy procedural steps that preceded the treaty of Lisbon. It is simply a matter that can be agreed between the member states at a Council meeting, and then approved by the individual Parliaments. The whole point of the simplified revision treaty was to make it quicker and easier to integrate powers in the European Union. It is a sort of “speeding up of European integration” provision. The provisions that are subject to a ministerial test of significance are the ones that will ensure that these matters are brought before the House. They embody the procedure of simplified treaty revision. There are only two of them, but they are very important. All the other provisions—or at least the preceding ones, which deal with competence—would require a full constitutional process under the ordinary treaty revision procedure with which we are all so familiar.
Mr Clappison
My hon. Friend has clearly given the matter great consideration, but I think that he is wrong, and that if others agree with him, they are wrong as well. The procedure for which my amendment provides is exactly the same as that which the Government propose in other parts of the Bill relating to other transfers of power, including those relating to the title V provisions on justice and home affairs. If my proposed procedure is defective, so is the Government’s proposed procedure, because the terms of the amendment are the same as the Government’s. If the Minister’s opinion was that the effect was not significant enough to warrant a referendum and Parliament did not agree with that opinion, there would have to be a referendum, because the significance test would not have been met. That provision is in the Bill, so I do not think that it could be any stronger.
Mr Cash
The opinion of the Minister will in fact be the opinion of the Whips, who will wish to ensure consistency in the Act of Parliament to which reference has been made. For practical purposes, my hon. Friend is right. If Parliament has said that it does not approve of the opinion of the Minister, it will be an awful lot more difficult for the Bill to be whipped; and if the Whips did that, they would be in defiance of the very sovereignty to which I have referred repeatedly during our debates on the Bill.
Mr Clappison
My hon. Friend is right. The amendment follows the scheme of the Bill. Unless a Minister says that the transfer of power is insignificant, there will have to be a referendum, because the significance condition will not have been met. The amendment provides that if the significance condition is met because the Minister says that the transfer is sufficiently significant, there must be a vote in the House to prove that what the Minister has said is correct, and if the significance condition is not met, there must be a referendum.
Broadly, the question is this: does Parliament decide, or does a single Minister decide? The Government propose that a single Minister should decide, but, as my hon. Friend knows, there is a fall-back position, namely that the Minister should be challenged not in the House but by means of judicial review. I find that somewhat strange, as did some of the distinguished academic witnesses who gave evidence to the European Scrutiny Committee.
Under the Bill, if one of our constituents is aggrieved by what the Government propose, his recourse will be not to his Member of Parliament but to the courts, through judicial review. I think that that in itself sends a very odd signal. What should I tell a constituent who comes to my surgery and complains about the European Union, as some of my constituents do when it introduces a regulation that has an adverse effect on their jobs or companies, or when they disagree with some transfer of power? Should I say, “I am sorry. You may want a referendum, but you have come to the wrong place: you need to visit the solicitor’s office down the road”? I do not think that that is a very satisfactory state of affairs. We are told that clause 18 entrenches parliamentary sovereignty, but I think that if we adopt the proposal in this clause, we will bypass that.
Mr Clappison
I fear that I must part company with my hon. Friend if he is suggesting that our democratic safeguard should lie in recourse to the courts rather than to Parliament. I am afraid that I must put Parliament first. In any event, as was demonstrated by evidence given to the European Scrutiny Committee by esteemed legal experts, it is very unlikely that a challenge to a decision by either a Minister or the House of Commons would succeed in a judicial review. I think that we are being led down a blind alley. In my opinion, even if the possibility of a judicial review of a ministerial decision had been contemplated in the explanatory notes or in ministerial statements, judges would be extremely reluctant to challenge a political decision on the significance of a particular transfer of power. I also believe that the fact that we are contemplating such a step as the main challenge to a Minister’s decision risks undermining the House of Commons while not providing any further safeguard.
Mr Cash
Although the Committee has rightly said that a judicial review might be considered unlikely in certain circumstances, the key question is what Parliament has said about the circumstances in which a referendum should be required. We should bear in mind above all else the fact that we in Parliament should decide what is in the interests of our own constituents. We are here to give them the opportunity on these matters—that is part of the Government’s overall case which, regrettably, fails on a number of tests as we go through these proceedings. The object of the exercise is to ensure that the people of this country have the right to decide on matters relevant to their daily lives. Regrettably, the fancy franchises being thrown up by these exemption conditions and significance arrangements are invading the central question, which is whether the people of this country should be allowed to decide after we have made our judgment on their behalf.
Mr Clappison
I am grateful to my hon. Friend for that point. The long and short of it is that the Bill provides that unless the significance condition is met and it is decided that a transfer of power is not significant enough to warrant a referendum—some transfers of power will not be significant enough, whereas others will be—there will not be a referendum. As the Bill stands, the Minister alone will decide whether that condition has been met and this House of Commons will not have the chance for a separate vote, before an Act of Parliament, on whether a referendum should be held. Even if someone were lucky enough to find the time and all the rest of it to table an amendment on this during the consideration of a Bill, it is unlikely such an amendment will succeed if this is not contemplated in this Bill. The Minister would simply say, “The Government of the day decided that there were certain occasions when a referendum would be required and this was the procedure for dealing with a referendum in these cases. It was decided that a Minister’s opinion was the test of significance or not, so this does not apply.” I do not see such an amendment being a successful avenue or a good defence to which to turn.
My amendment would provide an important safeguard, which is in addition to there being an Act. I welcome the provision for an Act, because that is a good thing. To be fair, an Act of Parliament is not required in these circumstances at the moment, because the transfers of power under the simplified revision procedure are simply subject to the resolution of both Houses. The Bill’s proposals are therefore a step forward, but we could do so much better. If we do not make the change that I am proposing, we will be leaving a big gap.
Mr Clappison
For the same reason that placing something in a Bill is a stronger defence—it has stronger legislative authority—than leaving it to chance in the future. My amendment is a safeguard in addition to the Act of Parliament that will be required, and including in the Bill requirements on a referendum would make things legislatively stronger.
We come back to the question outlined by my hon. Friend the Member for Harwich and North Essex (Mr Jenkin), “Why put any of these requirements in the Bill and why provide these 44 situations where a referendum is required, given that each time we have an Act of Parliament for a treaty change, as we would have to have, we could simply do the same thing then?” That argument is being run in certain quarters, but it makes a mockery of the whole Bill. I do not want to be too unkind to those who promote that argument, but I merely say that it was fully ventilated during the European Scrutiny Committee’s deliberations and it was dismissed, and not only in one report. We produced a majority and a minority report, which disagreed on almost everything but agreed that a change needed to be made on the significance test. When one understands the two spectrums of opinion in the European Scrutiny Committee, one can see the measure of achievement in uniting the two.
Mr Cash
It seems inconceivable that if parliamentary approval for the Minister’s opinion were denied precisely because of the arguments that have been heard in the House of Commons, the Government would then say, “We are going to enact this anyway. Parliament has said that it disagrees with the Minister’s opinion that such and such applies, but we are going to pass this by way of an Act of Parliament.” That is just not real. The real decision would be taken on the assessment of the opinion of the Minister and that would be properly gone into if my hon. Friend’s excellent amendment were accepted.
Mr Clappison
My hon. Friend is absolutely right. Hon. Members will just have to face the fact that although the Bill is a step forward and contains very good provisions, we must not leave gaps. If we leave this gap, we leave a get-out clause to be used in the future. Given the volume of change that could come through the simplified revision procedure, that could prove very important indeed and we may regret our decision in time to come. I cannot see what the enormous problem is with having this requirement in the Bill. I am used to hearing the argument that something could be done in a better way and to hearing technical arguments, but my experience is that when such arguments are put before the House, they usually have little real basis. If we want to have something, we should vote for it. I see no reason of policy or substance that is an obstacle to my proposal. Perhaps the Minister will tell us why. He has been very reasonable and persuasive on many other points in the Bill.
Mr Clappison
He has been very charming and dealt with things in a very satisfactory and open way.
Mr Clappison
He has been friendly. He has been a model of charm and ministerial competence, but he has not yet produced any credible reason why we cannot have a vote in Parliament to decide whether something is significant enough to trigger a referendum, as opposed to leaving it simply to a Minister. What is wrong with trusting Parliament?
Kelvin Hopkins
The hon. Gentleman is right, and I apologise for momentarily forgetting the name of his constituency—Harwich and North Essex—earlier. I agree with him. We have been right so often. When I argue about the European Union, I do not do that in nationalist or theological terms. I ask people to consider the effects on the European economy, which has grown more slowly than it would have done without the euro.
Kelvin Hopkins
Indeed. The hon. Gentleman is right again. Many of those who protested most strongly against matters in the European Union are people of the left—trade unions, working-class people, the unemployed, minorities and so on. We should not portray a right-left divide; the debate is about democracy and what works.
Kelvin Hopkins
The decision in favour of going to war was made with Conservative support. In the end, we are accountable not to the Whips. Clearly, we have a party system, and we are elected as party politicians, which I understand. By and large, on most things, we are guided by the Whips, but on some matters of fundamental principle, such as giving further powers to the EU or going to war, we must say, “What I believe and what I believe my electorate want is more important even than what the Whips advise.” I hesitate to say that while my Front-Bench colleagues are listening, but in the end, we must occasionally take a stand.
Kelvin Hopkins
We must take all those things into account when we make our decisions, but we make those decisions and stand by them, which I like to think I have done. I have regretted one or two things, but the hon. Gentleman is right. In defence of two-party Government—or our party system—I do not believe that we are elected as individual anarchists. We are here to represent a philosophy and interests in society. I am not by nature an anarchist; I am a collective democrat. That is where I stand.
The most important aspect of amendment 11, which is in the name of the hon. Member for Hertsmere, is that it would have an impact on the EU, which the hon. Member for Stroud (Neil Carmichael) mentioned. If the EU wants to push something through that it suspects will be unpopular in this Parliament, it might not proceed if the provision in the amendment were in force, whereas if it thinks it must win over only the Minister, the Prime Minister or the Executive, it might think it will get away with it. If it knows that its proposals are likely to go to a referendum and that their significance will be voted on by the House, it will be a little more careful.
That impact on the EU is more significant than giving decisions to ourselves because we like to make decisions. The EU will be much more careful about its proposals if it thinks that they might be subject to a referendum in Britain, because it knows very well that the justifiably strong degree of Euroscepticism will come to the fore, that there could be a problem, and that it might not win. If the EU thinks that there is a chance of not winning a referendum, it will not risk it. A referendum is much more likely to be risked if a decision is made in this House rather than by the Minister. That is the way of things.
Finally, I want to draw a parallel. I mentioned the excessive centralisation of power in British politics, particularly in No. 10 Downing street, the Prime Minister and his little entourage, but the other thing that is wrong is secrecy. I was a strong supporter of the Freedom of Information Act 2000. When it was going through Parliament, the Government proposed an amendment to the effect that we could have freedom of information except when the Minister says no. My good friend Tony Wright, the former Member for Cannock Chase and Chair of the Select Committee on Public Administration, led a rebellion. We did not win, but we made our point. He was very much a politician of the moderate left who would go along, by and large, with the leadership—he was not as critical as I was. He was an architect of that Act, and quite strongly in favour of it, but he was quite shocked when that qualification was proposed. Ministers are fine people who do a great job, but in the end, this House must make serious decisions about things, not just Ministers. I very much hope that the hon. Member for Hertsmere presses amendment 11 to a Division, and I certainly wish to vote for it.
Michael Ellis
That is absolutely right. Conservative Members have learned lessons from previous enlargements and we will not allow full free movement of workers from all new members, carte blanche, as soon as they join. We should require, it seems to me, complete fulfilment of all the membership criteria, particularly on criminal justice enforcement, for example. Labour messed up on that previously and this country suffered.
I respectfully submit that there has previously been a fundamental lack of understanding of sovereignty issues in this country. One example I would venture to provide is Labour’s creation of the Supreme Court. The very name is a misnomer, I submit, because in this country the law is not as it is in the United States where the American Supreme Court in Washington DC is empowered to say that the Government’s legislation is unlawful and to strike it down. The US Supreme Court can overrule Congress, but in this country Parliament is sovereign. Labour thus showed a fundamental misunderstanding of the British constitution when it called the institution that took over from the House of Lords judicial committee “the Supreme Court”. The law in this country is not supreme; Parliament is supreme and Parliament gives the law its authority, not vice-versa, unlike under the American system.
That brings me to clause 18, which is crucial and reaffirms that Parliament has ultimate sovereignty over European law.
Martin Horwood
Thank you for calling me, Mr Brady. It is a pleasure to serve under your chairmanship for, I believe, the first time.
Let me begin by saying, as a Liberal Democrat, that my perspective on Europe is subtly different from that of some of my Conservative colleagues. However, I am at one with them in believing that the debate is crucially important, and that it goes to the heart of our democracy at both United Kingdom and European Union level. I think it important for these issues to be debated.
It is a matter of some pride to me that most of the robust intellectual debate seems to have taken place on the coalition Benches, although there have been some quality interjections from Opposition Members, most of whom are not present now. Partly for that reason, I think that amendment 11 is unnecessary. Every treaty change suggested in the Bill will be subject to debate and vote in the House. As was pointed out by the hon. Member for North East Somerset (Jacob Rees-Mogg), who is no longer in the Chamber, an Act of Parliament is the ultimate constitutional lock. It is unlikely that the Whips could somehow force through such proposals, especially given what has been said today. One of the healthy features of the coalition—I say this with the most deferential respect to my very good and right hon. Friend the Member for Orkney and Shetland (Mr Carmichael)—is that the Whips do not seem to have quite such a stranglehold on debates and votes as they did in the last Parliament, of which I was a Member—
Martin Horwood
I see no signs of the hon. Member for Stone (Mr Cash) giving way to the Whips on anything. Meanwhile, I happily give way to him.
Mr Cash
Leaving that aside, let me suggest that, according to the sequence of events provided for by the excellent amendment tabled by my hon. Friend the Member for Hertsmere (Mr Clappison), the question of the Minister’s motion and its approval by Parliament will arise before Third Reading, and almost certainly before Report. For practical purposes, therefore, the House of Commons will have decided the question. Surely the hon. Gentleman is not honestly suggesting that, its approval having been required, Parliament would vote against the proposal on Third Reading. Surely that would not make sense.
Martin Horwood
I do not quite follow the hon. Gentleman’s argument. I suspect that the Minister’s decision would almost certainly precede even First Reading. Following the introduction of a Bill and after the Minister had decided whether the proposed change was significant, it would be up to Parliament to amend the Bill and call a referendum if by any chance it considered that necessary. As has already been pointed out, this Parliament cannot bind its successors.
In view of the time, I intend to concentrate on the amendments tabled in my name, but I also want to say a little about the Labour amendments. The hon. Member for Caerphilly (Mr David) said, rather harshly in my view, that the coalition was displaying—I think that I am quoting him correctly—weak-kneed, ill-thought-out populism. May I indulge in a gentle return of serve? The Labour party seems to have tried to find some reasons to oppose a Bill that it obviously wishes it had thought of first, come up with a number of reasons that appear to be mutually contradictory, and settled on the grand solution of a committee that it cannot explain.
I think that if anyone is guilty of ill-thought-out populism, it may be Labour Members. As has been eloquently pointed out by the hon. Members for Stroud (Neil Carmichael) and for Daventry (Chris Heaton-Harris) and many others, Labour’s proposed committee would make things less transparent and less democratic. A real habit of the previous Labour Government was removing powers from primary legislation and handing them to committees, to commissions and even to Ministers. These things were not coming back to this place to be voted on; they were often disappearing altogether.
Martin Horwood
Whether the hon. Gentleman likes it or not, as regards formal influence we are one of the four largest member states in the Council and in the European Parliament. In informal terms, we have done remarkably well in supplying civil servants, not least in the new External Action Service, and we have hundreds if not thousands of British citizens working in one way or another within the European Union structures. We do not hand over powers or competences and then have no say on them. On the contrary, as one of the largest member states we have a leading role in the EU. It includes us—and that includes the hon. Member for Harwich and North Essex (Mr Jenkin) and all his hon. Friends. It is not an alien or a foreign body invading our body politic, but a union of all the peoples and nations of Europe.
You will be able to tell, Mr Brady, that I am less convinced of the need for onerous checks and balances than some of my colleagues, but I would like to say that I am cautiously supportive of the overall direction of the Bill. There is little secret that Liberal Democrats alone would probably not have thought it absolutely necessary, but we recognise its importance to Conservative colleagues. Without doubt there is a disconnect between the British public and the decisions made in their name regarding the part that Britain plays in the European Union.
Mr Cash
Does what the hon. Gentleman just said bear out what we heard from Lord Mandelson, which is that even at the last minute, after the coalition had been to all intents and purposes stitched up, the hon. Gentleman’s leader, the Deputy Prime Minister, was still on the phone to the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown) to ask whether he could achieve any further manoeuvring in relation to the European Union?
Martin Horwood
My suspicion is that that is very unlikely to be true, but I suggest that the hon. Gentleman consult Lord Mandelson’s memoirs to find the authoritative account.
There is no doubt that there is a real disconnect between the British public and the decisions made at a European level and an even bigger disconnect between British parliamentary and political life and the workings of the European Union. I am a long-standing pro-European and I have been supportive of many of the important and necessary treaty changes that we have seen in the post-war era. Even as a pro-European, however, I must reflect on the fact that that process has left something of a rift—a democratic deficit—between the British public and the European Union. I hope that many of the provisions for new democratic safeguards and checks on the power of the Executive over major decisions on future UK/EU relations in this Bill will go some way towards filling that void.
It is also worth reflecting on the fact that the Bill’s direction is complementary to many of the innovations in the Lisbon treaty. That is important as regards amendments 67 and 68. The UK is not alone in the Union in recognising that the pace of EU integration has left a dangerous lack of understanding and a disconnection between EU institutions, national Parliaments and European citizens. In fact, I think that was recognised by all EU member states in the Council, by members of the Commission and by Members of the European Parliament long before the Bill was conceived. That concern was translated into quite concrete measures in the Lisbon treaty.
I welcomed those changes in the Lisbon treaty and I guess it is too early to tell how well they will work, but the direction in which the Union is moving is clear. That might render unnecessary the calling of a referendum in all the cases envisaged by the Bill, hence amendments 67 and 68. The Lisbon treaty innovations, which were obscured in the haze of media and Europhobic hysteria about the treaty, should be seen as the foundations on which this Bill is being built. Let me remind the House about some of those innovations, which dovetail closely with the provisions in the Bill and necessitate a certain restraint in calling a referendum on everything that moves—a restraint that we have tried to articulate in amendments 67 and 68.
Mr Cash
Is the hon. Gentleman aware—I am sure that he is, and perhaps on reflection he might like to retract those remarks in the light of the fact that he is sitting in such close proximity to the Minister for Europe—that the same Europhobic utterances to which he is referring were reflected by the entire Conservative party, in unity, opposing every aspect of the Lisbon treaty and insisting on a referendum? I know that his hon. Friends were not doing so; this so-called temporary alliance looks as though it has quite a few splits in it.
Martin Horwood
What we have is not a temporary alliance with splits in it, but a business arrangement between two parties with very different traditions and very different views on Europe. The refreshing thing about the coalition, in contrast to Labour when it was in government and there were accusations of psychological disturbance and all sorts of things going on behind the scenes, is that we at least can be open and honest about our different traditions and perspectives. It is to the credit of the coalition and of the Minister that we have managed to create a Bill that largely satisfies both sides.
Mr Cash
As Chair of the European Scrutiny Committee, I know that it is universally accepted on both sides of the House, as has already been expressed by the Minister and the shadow Minister, that the quality of analysis that we have given to clause 18 and those proposals has been excellent, and that view has been endorsed by many outside Parliament. I mention that simply because the hon. Gentleman is perhaps moving into territory that he might later regret.
Martin Horwood
I do not always agree with the hon. Gentleman, particularly on matters European, but I pay due credit to his Committee and its work. The level of scrutiny that Parliament now gives European matters is certainly on the increase, which is a healthy trend. I give due respect to him for that.
Amendments 67 and 68 would remove the requirement to hold a referendum on any treaty change under the simplified revision procedure that would pool or transfer power or competence from the UK level to the European level. They would not remove the new requirement for Parliament to ratify every treaty change through an Act of Parliament, so Parliament would have the opportunity to put back the requirement for a referendum if that was felt to be absolutely necessary.
The new procedure that the amendments would create for the UK to support and ratify a treaty change made under the SRP that had already been voted for in unanimity at European Council level would simply be for the Minister to lay a statement setting out what the treaty change was and for the Government then to bring forward primary legislation, which would have to be passed by Parliament. That would not touch the requirement for a referendum to ratify any major new treaty under the ordinary revision procedure.
As I have said, even the Act of Parliament under the SRP could ultimately include a referendum in a particular case. In tabling the amendments, the issue we are raising is whether it is advisable to use referendums on any—I stress “any”—transfer or sharing of power or competence with the EU. The provisions for a referendum lock set out in clauses 3 and 4 seem to cover more or less any future change by the SRP, regardless of its size, content, purpose, necessity, or indeed whether it is in the UK’s national interest.
I appreciate that the obvious counter to that train of thought is that if there is a good case to be made for a future treaty change, the Government and Parliament of the day should be able to make that to the British public, and I accept that there is a strong case for that on major questions. That case is perhaps made more strongly by Conservative Members than by Liberal Democrats, but I recognise that it is an important one. It might even include some issues such as EU membership for countries such as Turkey. My concern is whether referendums are the best way to approach any future change, even if it is only technical and insignificant.
Mr Jenkin
I will deal briefly with my hon. Friend’s amendments, which deserve consideration and which I will support if there is a vote. The original pledge was that any new treaty would get a referendum—that was what we were told at the Conservative party conference in 2009. That was going to be the real referendum lock. It seems that the proximity of office blunts the senses, and “any treaty” is now only “certain treaties”.
We are now faced with a treaty of enormous significance in the EU—the treaty for fiscal union that Monsieur Fillon came over to propose to the Prime Minister last week. We will be told that it will not affect us, because there is no transfer of competence, no change in voting rights, no imposition of obligations and all the rest, and that it is not significant, so there is no need for a referendum. I remember being told that we could ratify the Maastricht treaty because it did not really affect us as we would have an opt-out from monetary union, but look how it is affecting us. There is no such thing as “Does not affect us”. Of course, if we were not in the European Union and it went ahead with fiscal union, it would affect us, so it will be argued that we cannot object as long as we have proper opt-outs.
The problem is that we are in the EU and under the European Court of Justice. We are in the decision-making institutions and in the legal jurisdiction of what will become a fiscal union. It is impossible for anyone to argue that the development of the European Union can go ahead to such an extent without affecting legal decisions in this country. Yet the Bill excludes any possibility of a referendum on an extremely significant treaty. That provision should have been in the Maastricht treaty—we all argued for that when monetary union was first discussed. We all pointed out that the no-bail-out clause was worth nothing—article 104c is emblazoned on my heart. We all argued that there could not be monetary union without fiscal union. We warned of the consequences of monetary union without fiscal union, and stressed that our opt-out was meaningless and would not protect us from the consequences of the Maastricht treaty. Now we are warning again that we should not allow the treaty to go ahead unless we get sufficient opt-outs and exemptions from the existing acquis communautaire, yet the Bill does not provide for a referendum.
Mr Jenkin
I agree that it is better, if only because it generates an expectation and a moment that will come in our history when people say, “Up with this we will not put! We are having a referendum.” To that extent, it is useful background noise, but I put it no higher than that. It is not fulfilling what we promised before the last general election.
Mr Cash
I am sure that my hon. Friend will accept that the real problem is the European Union as it now is. We are not having a referendum on any aspect of the mess that Europe is in. Everybody in the Committee has to accept that the riots, the protests and the collapse of the euro—all these things—are the consequence of the failure of European economic governance that has been predicted from Maastricht onwards. The Bill will do nothing to change that because it does not provide for a referendum on the circumstances that we are now in.
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.
Mr Cash
I very much acknowledge the sentiment that my right hon. Friend is expressing, but I am sure that he will understand when I say that listening is not the same as actually agreeing, and that there are circumstances where I would have expected him to be a little more acquiescent in relation to some of the arguments that we have put forward.
Mr Lidington
In those conversations about parliamentary scrutiny, which I intend should begin as soon as possible, I hope that I can find complete agreement with my hon. Friend. However, he will know that if we are talking about arrangements that will govern how both Houses of Parliament deal with European business and the process of scrutiny, we ought to be striving towards a measure that can command broad support in both Houses, and across all the political parties represented therein.
The Bill is a radical piece of legislation to improve how we handle European business. As my hon. Friend the Member for New Forest West (Mr Swayne) pointed out, in a characteristically vigorous intervention, had the legislation been in force at the time, the treaties of Lisbon, Amsterdam, Nice and Maastricht would all have required a referendum before they could have been finally ratified.
The powers in the Bill include a referendum lock on treaty changes or decisions that transfer powers from the United Kingdom to the European Union. That is the case even if the measures used to transfer those competences or powers are the extensive self-amending provisions introduced by the treaty of Lisbon. The powers include requiring that important decisions—even if they do not transfer power or competence—are still in every case approved by an Act of Parliament. I want to put this beyond any doubt: the Bill will mean that any treaty change at all, whether using the ordinary procedure for amending a treaty or the simplified revision procedure, will have to be approved by primary legislation.
This is a vitally needed improvement. Under the European Union (Amendment) Act 2008, Parliament’s control over the simplified revision procedure and other key ratchets is limited to a vote on a Government motion. That is the case even if the simplified treaty changes or ratchet clauses are proposed to abolish something as important as a national veto over foreign policy.
Mr Cash
Does the Minister not accept that it would be a monumental change if proposals relating to fiscal union, social union or employment union were to be incorporated in a treaty between the UK and other member states—excluding the UK, but none the less having a juggernaut impact upon us? In those circumstances, is that material not so important that we would expect to get a referendum—as would the British people?
Mr Lidington
My hon. Friend is jumping several bridges in assuming that what might be proposed in those hypothetical circumstances would be an amendment of the European Union treaties rather than a separate intergovernmental treaty involving the member countries of the eurozone—and perhaps some others—who wished to participate in the sort of closer economic union that my hon. Friend described and fears.
I hope to say more about this later, but the Bill is based on a very clear principle agreed within the coalition —that the referendum lock should apply where there is a transfer of competence or of power from the United Kingdom to the institutions of the European Union. That is the defining criterion. The different categories of exemption apply where powers and competences are not being transferred from this country. That is the reason for the distinction set out in the Bill. It is not an arbitrary decision, but one based on a very clear principle.
European Union Bill
William Cash Excerpts(15 years, 2 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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?
Mr Edward Leigh (Gainsborough) (Con)
Will my hon. Friend deal with the canard put around by Foreign Office lawyers that if his amendment is passed and we add talk of sovereignty to the statute, judges will be given a chance to intervene because it is not mentioned elsewhere? Surely the issue is clear: Parliament is sovereign, so why do we not just pass this amendment?
Mr Cash
My hon. Friend is right and I am grateful to him. Indeed, I suspect that many other colleagues, not only on the Back Benches but among the ministerial ranks, agree with me strongly. I also suspect that many Opposition Members feel exactly the same way. I hope, although without too much confidence, that one or two Liberal Democrats might take a similar view, although I would not wish to over-egg the pudding on that score.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
I happened to be doing a television interview earlier today with Mr Chris Davies, who is a Liberal Democrat MEP. When I asked him what the problem was with incorporating this amendment in the Bill, he said he could not possibly disagree with it. So there are Liberal Democrats who agree, and I simply do not understand why the Government object.
Mr Cash
I am grateful to my hon. Friend for that point. Indeed, I would be fascinated to know what would happen if any hon. Member were to appear before their local association and say, for example, “I just want to inform you that the sovereignty of the United Kingdom Parliament in relation to EU law is not reaffirmed.” I think they would get a dusty answer from their constituents, especially as they elected that person to represent them in Parliament.
I am concerned to ensure that the courts are excluded from the construction or interpretation of the nature or legal effect of parliamentary sovereignty. It is of course still inherent in the arrangements, even after the Constitutional Reform Act 2005, that the judiciary are not only quamdiu se bene gesserint, as the Latin has it—in other words, they hold their position during good behaviour—but, in exceptional circumstances, it would be possible for judges to be removed, by an address by both Houses of Parliament, if they were to depart from that dictum. I would have said that some of the remarks relating to the sovereignty of Parliament that have emanated from some judicial circles in recent years have trespassed closely on the question of whether Parliament is the supreme law-making body in this country. I include that new clause because I want to exclude the courts in relation to section 3 of the European Communities Act 1972, but I am not attempting to extend its range beyond that.
I find it strange that the Government say that the Bill does not attempt to embrace the whole doctrine of parliamentary sovereignty. Of course it could not have done so, because the scope of the Bill would prevent that. For practical purposes, my amendments are all devised and worded in relation to EU law, but without prejudice to my concern about the fact that justices of the Supreme Court should not pick and choose between the different kinds of statute to which they apply these attitudes if they were to gain critical mass.
New clause 4 states:
“Nothing in Part 3”—
the provision relating to the status of EU law—
“adversely affects or shall be construed as affecting the existing constitutional law of the sovereignty of Parliament”.
I then add, for the purposes of the scope of the Bill, the words
“in relation to EU law.”
I have provided a fail-safe mechanism and firewall against any attempt by the judiciary to interfere with the sovereignty of the House. I have done that not simply because that sovereignty is centuries old in its derivation, but because, certainly since the mid-19th century, our democratic representation, which leads Members of Parliament to convene in this Chamber and pass laws, has derived its supremacy exclusively from that democratic right.
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.
Mr Cash
The amendments, if passed, would enable us to deal with those questions. In point of fact, I intend to come on to the implications of my new clauses and amendments in relation to a number of matters, including what I regard as the totally unnecessary and unacceptable jurisdiction being given to the European Court and other European institutions over the City of London. I have been talking about that in national newspapers for the best part of two and a half years.
Mr Jenkin
Does the previous intervention not underline why we need my hon. Friend’s amendment? There might be no doubt in our minds that Parliament is sovereign and that the functions and powers to which he has just referred are simply delegated to the European Union by this sovereign House, but because such misunderstandings exist, it is time for the House to make a clear declaration that sovereignty and ultimate legal authority still rest with the House of Commons.
Mr Cash
I am deeply grateful to my hon. Friend for his intervention, because he is exactly right. Since 1972, there has been an accumulation that has now turned into a tsunami—a sort of Pied Piper of Hamelin, whom we all remember from our childhoods—as the accumulated rumbling and tumbling has gone on and on. We are now faced with a continuous stream of legislation divesting the House of its right to legislate, and this is an opportunity—one not invented by me in terms of the clauses proposed by the Government—to enable us to regain the sovereignty that belongs to the people of this country, the voters in general elections and Members of Parliament elected to the House for the purposes of protecting those voters’ interests.
Mr MacShane
Just as we start this interesting debate, I would like to know whether the hon. Gentleman accepts the broad principle of pacta sunt servanda.
The Chairman
Order. We cannot have two hon. Members on their feet at the same time.
Martin Horwood (Cheltenham) (LD)
Is the hon. Gentleman now in favour of establishing a common European language?
Mr Cash
With the greatest respect, we have already had one intervention from the right hon. Gentleman. Perhaps he would be kind enough to wait.
It would be ironic to say the least if the slogan “Working together in the national interest”, which we saw at our party conference, were to become “Working together against the national interest”. I do not believe that any Member of Parliament or any Minister would agree that the coalition—a “temporary alliance”, according to the “Oxford English Dictionary”—should be employed in any way to pass legislation that would undermine parliamentary sovereignty. Incidentally, I am somewhat appalled at the lack of coverage not of this debate but of the European Scrutiny Committee report when it came out, given the fundamental nature of the issues at stake, and the quality of analysis not only in the report itself but in the evidence given to us by probably the most distinguished constitutional experts in the land.
I will turn first to the constitutional and legal issues that clause 18 raises and which were carefully considered for several weeks by the European Scrutiny Committee, which received evidence on a completely even-handed basis, which, because of the fundamental importance of the issues to our constitution and our democracy, was well worth doing. In the course of the proceedings it became clear that many of the constitutional experts concerned felt that, at the very least, clause 18 was completely unnecessary. The most compelling evidence—the evidence that we received from Professors Tomkins and Goldsworthy, along with a number of others—was that clause 18 was hazardous and dangerous, particularly in the light of the Government’s assertions.
The issue of parliamentary sovereignty has been a matter of fundamental concern, importance and action since the 17th century. However, parliamentary sovereignty acquired a special and fundamental significance with the extension of the franchise in the mid-19th century, from the Reform Act of 1867 onwards—for example, through the Reform Acts of 1885 and 1884—and is undoubtedly the democratic basis of the United Kingdom constitution. However, irrespective of its now democratic basis, parliamentary sovereignty has become increasingly questioned recently—and only very recently—by reason of judicial assertions. Although on the tin, as well as in many repeated statements, we were told—I refer now to my hon. Friends on the Conservative Benches—that we would be getting a sovereignty clause or even a sovereignty Bill, clause 18 is emphatically not a sovereignty clause. For reasons that I will explain, the clause will actually undermine parliamentary sovereignty by encouraging judicial supremacy. The explanatory notes put forward the dangerous notion that parliamentary sovereignty is a “common law principle”, and therefore subject to judicial authority. However, even if the explanatory notes were disavowed on this matter, the problem of judicial assertions relating to parliamentary sovereignty would not disappear.
Mr Kevan Jones (North Durham) (Lab)
The hon. Gentleman and his Conservative colleagues stood in the election on a manifesto that said on page 114:
“We will introduce a United Kingdom Sovereignty Bill to make it clear that ultimate authority stays in this country, in our Parliament.”
Is he therefore disappointed that the Government have binned that part of the manifesto that he stood on?
Mr Cash
Not disappointed—absolutely appalled.
The sovereignty of Parliament is the most important principle of the United Kingdom constitution, and has been since 1688, as confirmed by constitutional authorities without question until very recently. Indeed, the greatest judge in recent times, the late Lord Bingham, who died only a few months ago, stated in the Jackson case in 2005:
“The bedrock of the British constitution is…the supremacy of the Crown in Parliament.”
I fear that the sovereignty of Parliament is in grave danger, however. There are judges in the Supreme Court whom Lord Bingham himself felt it necessary to name in black and white in chapter 10 of his book “The Rule of Law”, published shortly before his death. He publicly criticised their judgments and their attitude to parliamentary sovereignty. In the Jackson case, Lord Hope, who is now deputy president of the Supreme Court, said that
“parliamentary sovereignty is no longer…absolute”.
He went on to say that, “step by step”, it “is being qualified”. In his view, the rule of law, enforced by the courts, is the ultimate controlling factor on which our constitution is based. Lady Hale, who also remains on the Supreme Court, agreed with Lord Hope.
The fact that that case did not relate specifically to EU law does not alter the fact that the views expressed by Supreme Court judges can be as easily applied to cases involving EU law as to another judicial matter, contrary to the suggestions being put forward by the Minister in evidence earlier. It is not an answer to the question, as the Prime Minister has sought to suggest in a letter to me, for the Minister for Europe to state in his evidence to the European Scrutiny Committee that the Government are not seeking, and have never sought, to provide
“an all-embracing doctrine of Parliamentary sovereignty.”
The Supreme Court justices, who have a process of selection outside the Judicial Appointments Commission, have a significant critical mass of those with profoundly Eurocentric credentials. I mention this because the sovereignty of Parliament, which is a constitutional doctrine of the United Kingdom, is also under threat by virtue of the European Communities Act 1972. The construction placed on legislation emanating from that Act affects the daily lives of the electorate in almost every sphere of present-day activity. According to the Government themselves, such legislation affects at least 50% of all economic laws in the United Kingdom, including those that impose burdens on businesses small and large that, according to the best estimates, have cost £124 billion since 1998.
The threat comes not only from the common law radicalism of such judges but from the EU law itself, which claims constitutional supremacy over member states’ constitutions. We have also seen cases of terrorists appearing to get away with things and people not being deported when they should have been, as well as a whole range of other matters occurring under the European Human Rights Act, which, as I have said, is mirrored by the new charter of fundamental rights in the Lisbon treaty. We are witnessing a vast increase in the volume and impact of such legislation on the British people, and this is resulting in the anxieties I have described. Those anxieties could be allayed by my amendments, however, and it is time for us to turn the tide and make it clear exactly where we stand.
Sir Malcolm Rifkind (Kensington) (Con)
My hon. Friend is undoubtedly correct to say that the role of the courts has increased significantly, but is not the ultimate test of the sovereignty of Parliament whether Parliament can amend the law, either on domestic matters, when the courts have interpreted the law to our dissatisfaction, or in relation to our international treaty obligations, from which Parliament should always have the right to withdraw if it so chooses? Given those circumstances, the sovereignty of Parliament ultimately remains available to us.
Mr Cash
I am extremely grateful to my right hon. and learned Friend for that. I agree with the sentiment; the problem is the practice. The difficulty is not only the tsunami of laws: attitudes within the Supreme Court, particularly since the Constitutional Reform Act 2005, have so enhanced its independence that, in conjunction with the arguments it is beginning to present, very serious questions are raised. It was the same with the Bill of Rights of 1688—it was not an Act, but it is regarded as one of the central instruments of our constitution—when Parliament said that it was going to put its foot down and set down a marker that Parliament was sovereign. That is what I am saying in my amendments.
Dr Julian Lewis (New Forest East) (Con)
Our right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) is surely correct in saying that there is always what the Business Secretary would perhaps call the nuclear option of withdrawing completely. Is not one of the reasons why we, as a sovereign Parliament, are feeling more and more repressed by this sort of judicial activist legislation that things are so often put forward as if they were absolute rights whereas they should be viewed as qualified rights? That is why a common-sense Parliament would say that someone had abrogated some of their rights by bad behaviour, for example, but these courts say that the rights are absolute so that no matter how badly people behave, they cannot, for example, be deported.
Mr Cash
My hon. Friend makes a very important point, which I think all Members will want to take into account. As a lawyer myself—there are many other lawyers in the Chamber—I know that there always exists within the framework of the judicial or court system the adversarial nature of arguments based on words. One reason I came into this House after a fairly lengthy career in the law was that having had so much exposure to parliamentary legislation and its impact on people, I was conscious of the fact that however clever or adroit a lawyer might be in expressing his opinion in court or in his practice, the impact of law on the people who receive it—the voters—was quite a different matter. The common sense mentioned by my hon. Friend the Member for New Forest East (Dr Lewis) provides a salutary reminder of the necessity to remember that we in this House are Members of Parliament. We are legislators; we are not lawyers. We are seeking to apply principles that will enable this country’s people to be better governed.
Unfortunately, much of our legislation emanates from the European Union, for example, on issues such as food labelling. My hon. Friend the Member for South Norfolk (Mr Bacon) has just proposed a private Member’s Bill to deal with that issue, but his Bill has no chance of becoming law unless we disapply the European element and pass it in this House. That is the problem, and it is, in part, what the supremacy of Parliament debate is all about.
Martin Horwood
I would like to question the hon. Gentleman on one of these principles. He is presenting this as a competition between European and British law and between judges and Parliament, yet he himself has said that these debates are happening and this authority has been conferred on British courts because of the European Communities Act 1972, which, unless I am very much mistaken, was an Act of this British Parliament. That rather reinforces the principle of supremacy.
Mr Cash
If I may say so, that is not only true but precisely what I am seeking to deal with in new clause 1, which I tabled because the courts have been allowed this unwarranted intrusion into the legislative process by judicial activism. Much of the European Communities Act 1972 invokes regulations, which come into effect in a different way from directives. In the new clause, the interpretation and the construction put on legislation by the judiciary should not under section 3 of that Act extend to the nature or legal effect of parliamentary sovereignty. What I am doing is exactly what the hon. Member for Cheltenham (Martin Horwood) highlighted—dealing with the mischief, as I see it, created for that ultimate source of authority, which lies in this House as a sovereign Parliament, to be able to make and unmake laws as it wishes.
That does not necessarily mean that we would automatically take extreme positions. Some academic lawyers—very distinguished they are, too—have gone to extraordinary extremes in trying to demonstrate, in print, the necessity for their case, and have not done themselves a service in so doing. It is at a much more mundane level that the people of this country are unreasonably affected by some of the legislation that needs to be dealt with in Parliament, and which can be dealt with only by the sovereignty of Parliament in its traditional sense.
Martin Horwood
The hon. Gentleman is being extremely generous with his time. According to a report from his own European Scrutiny Committee,
“the term ‘Parliamentary sovereignty’ bears a number of meanings which can get confused.”
Does not the risk posed by his amendment lie in the fact that it is so simple that it allows for wide and different interpretations that might be exploited by the very courts about which he seems to be so worried?
Mr Cash
I should be more than happy to show the hon. Gentleman a book that is entirely devoted to the issue of the sovereignty of Parliament. The point is that there is no need to define parliamentary sovereignty. The Constitutional Reform Act 2005, which gave greater independence to the judiciary and the whole of which ultimately turns on the rule of law, does not contain any definition of the rule of law. Certain fundamental principles, and methods whereby we are governed, do not require definition for that purpose. They are applied, in the case of both sovereignty and the rule of law. There is a natural constructive tension between the two, but it is our job to protect the element that involves the sovereignty of Parliament.
Mr MacShane
I do not disagree with what the hon. Gentleman has been saying, but the fundamental rule of international law in regard to treaties is “pacta sunt servanda”. Those who sign a treaty must abide by it. If Parliament does not like a treaty, it has a sovereign right to withdraw from it. We can withdraw from the European convention on human rights, which is concerned with deporting people and so forth, and we can do the same in regard to the European Union. That is not a nuclear option; it is a perfectly fair choice that this Parliament could take. I rather wonder whether that is the speech that the hon. Gentleman should be making.
Mr Cash
I shall deal with that point shortly, but—with respect to the right hon. Gentleman—he will have to be a little patient.
As Members will have noticed, I have sought only to strengthen clause 18, which, as it stands, merely refers to the “Status of EU law”. We were promised a sovereignty clause, and my amendment would achieve that. The clause as it stands would be subject to statutory interpretation, and it would be strange, uncertain and hazardous not to insert this provision in the framework of the European Communities Act 1972 itself. Clause 18 is a stand-alone clause. It refers to the “Status of EU law” and to section 2 of the European Communities Act, but it does not amend the Act. I am talking here about section 2 through section 3, when the judges apply themselves to any law. The clause is only six lines long, but it incorporates and absorbs within it every single piece of European legislation, so it applies to everything. However, although we know that law from the European Union emanates through from the 1972 Act, this measure does not amend the Act when incorporating the status of EU law. I am extremely concerned about that and find it very strange. In fact I will go further and say that I think the measure is deliberately contrived to make sure it is not an amendment to the 1972 Act.
Mr John Redwood (Wokingham) (Con)
I am grateful to my hon. Friend for drawing the House’s attention to this crucial matter. As I understand it, he, like many of us, rightly wants to reassert the sovereignty of Parliament and make it clear that Parliament remains sovereign in all circumstances, and as I understand it, those on the Treasury Bench have the same aim. Given that his proposal seems to be stronger in this regard, can he think of any good reason why they should refuse it?
Mr Cash
No, I cannot. I am a bit puzzled by that, but as I develop my speech I hope to be able to explain where I think the origin of the problem lies.
The Government and the Prime Minister fail either to explain why the 1972 Act was not amended in the way I have just suggested or to follow the route I have provided in my sovereignty Bills, and which has also been provided by the Bills that have followed from colleagues over the past few years. I have to say, however, that my sovereignty proposals of 2006 in relation to the Legislative and Regulatory Reform Bill were accepted by the current Prime Minister when he was Leader of the Opposition and by the party Whips. Indeed, I might add that the Minister for Europe voted for those arrangements. I am glad that he smiles, because the smile is on the face of the tiger.
The fact is that we went through the Lobby then. The Whips came up to me in the middle of the afternoon and said, “Bill, will you please be good enough to allow us to adopt your amendments and put in Tellers?” I was extremely impressed, and slightly flattered. They decided to do that, and then, having accepted that and having faced down the then Government with such incredible force, they went off to the House of Lords and whipped it through the Lords six weeks later. A degree of conviction clearly lay behind that, and it matches up rather nicely with the manifesto promises about the sovereignty Bill and so forth. We were nearly getting there—we were on the brink, it might be said. The question is: where are we now?
As I have said, it is well-established that there is an historical and constitutional tension between the courts and Parliament because of the democratic basis of parliamentary sovereignty, not by virtue of a common law principle, and I have also proposed an amendment to prevent that principle from being subject to judicial application. It is also necessary to include the reaffirmation of Parliament so that the courts would not be able to ignore those words, which are lacking in clause 18 as it is currently drafted, and in order to address the problem relating to the 1972 Act.
In one of the Prime Minister’s letters to me—he has written two letters in the last few days—he claims:
“I can, of course, assure you not only that we have no intention to affect adversely the principle of Parliamentary sovereignty, but also that we do not believe that Part 3”—
that is a reference to clause 18—
“runs this risk. As you would expect, we made sure we looked at this matter very thoroughly.”
My letter to the Prime Minister of 13 December, which I have sent to a number of colleagues to ensure fairness and transparency, indicated that I thought that in the light of his previous observations and assertions about a sovereignty Bill, not to mention the manifesto and so on, this principle of parliamentary sovereignty was a given and that the drafting of clause 18—this is so in the light of the evidence given to the European Scrutiny Committee and our conclusions—had demonstrated that the Government’s intentions had merely produced unintended consequences. I went out of my way to say that I was sure that he did not intend this. However, our European Scrutiny Committee was doing what he has continuously said it should do: improve the scrutiny of European legislation. That is one of our fundamental principles; we are going to make sure that European legislation is looked at properly. That is what we have done, and we have reported. We revealed, after four weeks of taking evidence and engaging in cross-examination, that, unbeknown to others, this clause will have unintended consequences.
So our Committee came up with its conclusions, as a result of having followed the Prime Minister’s advice to scrutinise as well as we have done, and he then turns around and says, through his Ministers and in letters to me, that
“we looked at this matter very thoroughly”
and that, “We do not believe that part 3 runs the risk that you are identifying.” Basically, he said that we were wrong. It is a serious matter for a Prime Minister to say that to a Select Committee, which is one of the reasons why I am taking these steps. I hope that I am doing so with a good sense of timing and humour, because it is very important that we do not turn this into something more difficult.
However, I have to say that his reply of 10 January shows that the Government stand by the wording, having made sure that they examined the matter “very thoroughly”. I must say, on behalf of myself and others, that I am afraid that the consequences remain damaging for parliamentary sovereignty, for all the reasons that I have been setting out. He goes on to say that
“the words you have suggested would create uncertainty, because the term ‘Parliamentary sovereignty’ is not defined. There are no precedents for…referring to Parliamentary sovereignty in Acts of Parliament.”
He also says that attempts to define it will be “difficult and complex”.
With respect, that does not take us anywhere, because the expression “sovereignty of Parliament”, which is the one I have used, does not require definition in statute, as any examination of constitutional authorities makes abundantly clear. Some of those authorities prefer to use the expression “legislative supremacy of Parliament”, by which is meant that there are no legal limitations on the power of Parliament to legislate. I return to the words of the late Lord Bingham:
“The bedrock of the British constitution is…the supremacy of the Crown in Parliament”.
In the words of one of our greatest constitutional authorities—according to Dicey—under our constitution, Parliament has the right to make or unmake any law whatever and, furthermore, no person or body has the right to override or set aside the legislation of Parliament. There is no definition of “the primacy of European law”, nor, as I have just said, is there any definition in the Constitutional Reform Act 2005 of “the rule of law”. The fact is that certain expressions do not require that degree of definition, so I do not agree with the Prime Minister or with the Ministers on that point.
One of our witnesses, whose evidence the Committee did not accept, argued that Dicey’s exposition of sovereignty has been based on assumptions about representative democracy that, in his view, were flawed even in 1885 and could not be made today. That witness happens to be a proponent of and is in agreement with the views of other witnesses who promote the common law principle, such as Professor Trevor Allan. We rejected that view, distinguished as those people are, as we rejected the common law principle as set out by the Government in their explanatory notes—but merely removing them from the notes will not influence this kind of thinking in the Supreme Court or in influential academic circles. One has only to see the amount of time and effort that has been expended on this in learned journals to realise that they are not going to be pushed out of thinking the way they do merely because we correct them in the explanatory notes.
The same could be said of Lord Justice Laws’ views on constitutional statutes, which do not have special status in the traditional sense against any other statute. All are subject to repeal where Parliament so decides in the national interest. That is an advantage of our organic, unwritten constitution, so that we can, in a Burkean sense, adapt as and when necessary on firm and principled foundations. As Bradley and Ewing indicate by contrast to written constitutions such as that of the United States, the legislative supremacy of Parliament amounts to a fundamental rule of constitutional law and this supremacy includes the power to legislate on constitutional matters.
Sir Malcolm Rifkind
Is my hon. Friend not in danger of being so learned as to confuse himself about his own amendment? The sovereignty of Parliament was not created by an Act of Parliament, and it has never depended on an Act of Parliament. How can its restatement in an Act of Parliament given any real added value to its legitimacy?
Mr Cash
Precisely because the courts have moved further and further down that route, as I explained when quoting Lord Hope’s speech. The Supreme Court has been given independence under the Constitutional Reform Act 2005. I see a slight smile appearing on my right hon. and learned Friend’s face.
Martin Horwood
I realise I am on dangerous ground in quoting bits of the hon. Gentleman’s report back to him, but in paragraph 43, the European Scrutiny Committee concluded:
“Overall, the majority of witnesses thought that if an Act of Parliament were to derogate from an EU Regulation or Directive, for example, and in so doing expressly and unequivocally disapply the ECA, the courts would be likely to follow the derogating Act of Parliament.”
The majority of witnesses thought that clause 18 was at worst unnecessary. Only one thought that it was dangerous, so the principle that the hon. Gentleman has espoused is well established and perfectly defensible in British law.
Mr Cash
That would be the case if it were accepted by the judges in the Supreme Court. It is precisely because we know that they are not inclined to take that view that the amendments are necessary. We are extremely grateful for the evidence that we have received from distinguished witnesses, but the problem is not what they have said, because they aided us in arriving at conclusions in the light of our need to defend parliamentary sovereignty. The problem does not lie in Parliament or with the witnesses; it lies in the assertions of a circle of certain judges and lawyers.
Mr Jenkin
I am intrigued by the intervention of my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who appears to be suggesting that Parliament can simply assert its authority over the judges by some means other than statute. I would like to know by what means it can do so. In the 17th century, it was violence, and I would prefer that Parliament should not have to resort to violence. I think that we should resort to statute, which would govern the judiciary, and we can direct them to behave according to statute.
Mr Cash
I am grateful to my hon. Friend, because as I mentioned earlier, under the Constitutional Reform Act, there is no displacement of the doctrine and, indeed, the constitutional principle that judges may be removed by an address of both Houses of Parliament. Furthermore, as my hon. Friend has mentioned the 17th century, the 1610 case of Dr Bonham continues to apply, up to and including the 2005 Act. Lord Chief Justice Coke asserted that the common law could usurp Acts of Parliament—I am paraphrasing, but he was specific—but he was dismissed by Parliament for making such assertions. My hon. Friend’s point is therefore well made, and was part of the constitutional settlement in the Act of Settlement 1701 and is still part of that settlement by virtue of the Constitutional Reform Act 2005.
Chris Bryant (Rhondda) (Lab)
Notwithstanding that, Coke was one of this country’s greatest Chief Justices. The hon. Gentleman appears to be arguing that we do not need to define parliamentary sovereignty, because it is a well-established and well-understood concept, yet he is clutching a book, which I assume is by Jeffrey Goldsworthy, who has written a lengthy, dense book on the subject. Indeed, he has written two books on it, including a recent one, so it is clearly not as simple as the hon. Gentleman would like to suggest.
Mr Cash
What is simple is that the concept of parliamentary sovereignty requires some explanation, and Jeffrey Goldsworthy does that. The question is not merely about parliamentary sovereignty; it is also about the manner in which the courts apply themselves to that doctrine. That is where the mischief lies and that is what my amendments would deal with.
I should like to respond to the Government’s reply, published only yesterday, to the European Scrutiny Committee. The Government say that they have never claimed that parliamentary sovereignty is under threat from EU law, but a problem remains for them. The evidence to the Committee was that that could well change in future, given current judicial trends; that is exactly what we were told.
The Government claim that disapplying EU law, an issue that has just been raised, would have unacceptable consequences—with infraction proceedings, and so on. But I make the point clearly that according to the evidence that we received, not only are several countries already in breach of EU law—France’s deportation of Roma immigrants, for example; no action was taken—but there is non-compliance on a massive scale. We know all about that, with the stability and growth pact.
There has also been the more recent failure to comply even with EU law itself in respect of the financial stability mechanism. Anybody with two brains to rub together would know that article 122 could not possibly justify—[Interruption.] Well, “Two Brains” could. No one could justify the use of article 122 for the purposes of that mechanism. If in the national interest, Parliament decides to do so, that is that. We obey EU law only in so far as it is a matter of statute and continues to be regarded as a matter of national interest.
As to the background of all this, my right hon. Friend the Prime Minister made several speeches before the general election that clearly demonstrated that we would no longer allow Britain’s laws to
“be decided by unaccountable judges.”
He said that their role was to interpret not to make law and that the sovereignty of Parliament needed to be safeguarded not only from the EU but from current trends in judicial thinking. We were promised last year:
“you can be assured that you have a Conservative prime minister who will act in the national interest. And putting your country first is about the most important Conservative value there is.”
The Prime Minister also said:
“The Conservative Party has always been a party that puts the national interest first.”
I absolutely and entirely agree. By the way, it was Disraeli who said that the Conservative party was a national party or it was nothing; I agree with that, too.
The tragedy is that the coalition and the Liberal Democrat influence in the formulation—and subsequent discussions, I suspect—of clause 18 and the Bill as a whole have gone a long way towards undermining the commitment to putting the national interest first. I fear that, far from working together in the national interest—and it is not just on this one clause—we are now witnessing policies that in relation to matters as important as the sovereignty of Parliament are actually working against the national interest.
That could be remedied very simply by dealing with the omissions, dangers, ambiguities and hazards that the clause throws up and by accepting my simple and modest amendments. My challenge is this: will hon. Members vote down an amendment that says:
“The sovereignty of the United Kingdom Parliament in relation to EU law is hereby reaffirmed”?
We all know that it is not possible to constrain the judiciary in relation to EU law except by using clear words. Those are lacking in clause 18, and I have substituted words that have the appropriate effect.
Mr Peter Bone (Wellingborough) (Con)
On my hon. Friend’s point, is he saying that if we had a Conservative Government, we would have a totally different Bill?
Mr Cash
I congratulate my hon. Friend on that extremely perceptive remark. I entirely agree with him. If that were the case, we would not be where we are now. That is part of the lesson. [Interruption.] That might be true too, but who knows.
My new clauses and amendments to clause 18 would put the matter beyond doubt and I cannot for the life of me see why they cannot be accepted in the national interest. I believe firmly that they would have been accepted under a Conservative Government and we know that in 2006 we were almost there. The very fact that the Government might obtain a majority for the legislation should be of no comfort or satisfaction to anyone in the country, inside or outside Parliament.
In that past, those of us who have been criticised or perhaps underestimated for our predictions on Europe need only to look at the record to see how often some of us have been proved right in the national interest. Winning a vote does not always come into that category. I can only hope that failure to accept the clarification that my amendments would give will not, in a few years’ time, have seemed in retrospect a price worth paying, rather than seeking to uphold on every score a coalition of parties that on matters relating to judicial supremacy, the European Union, a written constitution and the national interest are often fundamentally poles apart.
“The fault, dear Brutus, lies not in our stars,
But in ourselves, that we are underlings.”
Kelvin Hopkins (Luton North) (Lab)
It is a great pleasure to follow a speech by the hon. Member for Stone (Mr Cash). I strongly support his amendments and hope they will be divided upon. I shall certainly be voting for them and I hope that many Labour Members will also be supporting him. He has made his position very clear and, even to a non-lawyer such as me, he has made the issues understandable.
The sovereignty of Parliament is something that voters hold very dear. We are not a polity where people mistrust Government, as is the case in many other countries, where people have had experiences that have made them historically mistrust Government. We accept that Parliament decides things on behalf of voters and if they do not like what we do, they can get rid of us individually and collectively and change their Government. One of the reasons why, among other things, I so strongly support the first-past-the-post system is that it means that electors can choose Governments. I do not want to touch on sensitive matters now, but such a system means that Governments are not created by post-election deals between parties. Sorry about that, but there we are.
By and large, people choose their Governments and do not like their judiciary to be interfered with by politicians. The judiciary should be independent and should act on the basis of statutes, which are clear and do not leave too much scope for interpretation by judges, who are human beings and have political views like anyone else. Statutes should be very clear. The hon. Member for Stone is trying to make this bit of statute very clear, so that judges do not have wriggle room or scope for interpretation. Whether judges are Euro-enthusiasts or Eurosceptics, they must act according to a clear statute
We have seen what has happened on the continent of Europe. Let us consider the European Court of Justice, about which I am deeply suspicious because it clearly acts in a political way. It has done so on more than one occasion but, as a trade unionist and a socialist, I was dismayed by its judgments in the Viking Line dispute. It found in favour of the employers, which I thought was a political judgment, not a judicial decision. We want to avoid such a situation occurring in Britain. Lawyers should make decisions on the basis of laws that are decided by Parliament, particularly by this House, and there should not be scope for interpretation. That is, of course, most important in matters involving the European Union, because it is wilfully trying to assert laws over and above us in a supranational way, which many of us deeply resent and are suspicious of.
I have said many times in this House that I want a European Union that is a looser association of independent democratic member states where we come together on matters on which we all mutually agree for mutual benefit, but is not a supranational organisation imposing laws and giving itself powers that we cannot resist.
Kelvin Hopkins
I accept what my hon. Friend says, of course, but it depends on how much wriggle room there is. Even with a very well-drafted and carefully written statute, there is sometimes a degree of breadth in what can be decided. If we leave too much wriggle room, judges, being human beings with political views like anyone else, will take advantage; there is no question but that they would do that. It is our job to ensure that they cannot take advantage of this House and of the will of the people.
Mr Cash
Does the hon. Gentleman agree that it is also becoming apparent that some statutes have deliberate ambiguity put into them, and that that may be the case with clause 18 in order to allow the courts to get their hands on it and to construe it in line with the principles that they are beginning to enunciate?
Kelvin Hopkins
Indeed; the hon. Gentleman makes an important point. My concern is based on a suspicion that the Government are deliberately trying to leave this open and not have it pinned down so as to give wriggle room for future political events and developments. When something that appears to be so straightforward is resisted so strongly by a Government—even by my own when I was on the Government side of the House—I am always suspicious that there is a reason behind it, and that somewhere in the Government machine there are people wanting to ensure that something does not happen and that they have wriggle room in future. I do not want that to happen.
Like the hon. Member for Stone, I want to make it clear that the sovereignty of the British Parliament is retained as it should be. The people of Britain have made it clear that they want that to happen as well. Overwhelmingly, they are sceptical about the European Union, and it is our job to reflect that scepticism and not to give away to the European Union more potential power over this Parliament. We owe that to our electors. I certainly support them in that, and I support the hon. Member for Stone’s amendment.
Charlie Elphicke
If I may continue, Lord Justice Laws went on:
“It cannot stipulate as to the manner and form of any subsequent legislation.”
In other words, one Parliament cannot bind another. He continued:
“It cannot stipulate against implied repeal any more than it can stipulate against express repeal.”
That is a simple and clear principle.
It is not terribly helpful to have a codification—I am concerned about that—but we do not need to say “is sovereign”, because that poses the question of what “sovereign” means, as the Foreign Office pointed out. I do not think that that is a particularly helpful or constructive debate.
The real issue in the Bill is referendums and holding them on whether we should go any further into the EU. I pray in aid some of the submissions that were made to the European Scrutiny Committee. Paul Craig saw clause 18 as “sovereignty as dualism”. He said:
“It says nothing about sovereignty as primacy, and it doesn’t purport to reiterate, or iterate, the parent idea of sovereignty. There is no harm in having clause 18 if you wish it as a symbolic reaffirmation of the common law principle”—
I agree that it does no harm, but I am not sure whether “common law principle” is right; I think that it is a constitutional principle, so I slightly disagree with him—
“that a statute has no impact in the United Kingdom unless or until it is embodied in an Act of Parliament.”
I think that Professor Hartley also made a submission to the European Scrutiny Committee—doubtless, my hon. Friend the Member for Stone (Mr Cash) will correct me if I am wrong. He said:
“I think that the clause has value, because it emphasises that this is the law and this is the constitutional position. In my opinion, even without clause 18, courts would do what it says, but it would encourage and sort of strengthen them. I think that it has value even though, strictly speaking, it does not change anything.”
Although I have personal doubts as a slightly picky lawyer about the sense of including clause 18, I believe that it does no harm and it also underlines the principle that the UK Parliament has decided on and voted for membership of the European Union.
Mr Cash
I am afraid that I have to inform my hon. Friend that Professor Hartley did not address the question of the common law principle in his evidence. My amendments address that problem. The intrusion by judicial assertion to undermine parliamentary sovereignty is the problem, not the fact that the “status of EU law” says neither one thing nor another and is inherently unnecessary.
Charlie Elphicke
I pay tribute to my hon. Friend, with whom I agree on so many matters about the European Union. However, I regret to say that we must part company on the subject that we are discussing.
My hon. Friend prayed in aid Professor Tomkins, who gave written evidence, which stated:
“The doctrine of the sovereignty of Parliament is better understood as having its legal source in judicial recognition of political fact rather in the common law.”
I am not sure whether that is right. I do not see it as “political fact”, rather as an important constitutional principle, which underpins—and has underpinned—all our dealings since at least the time of the Bill of Rights. Professor Dicey certainly gave voice to it.
Professor Tomkins continued:
“Neither clause 18 nor any other provision in the Bill safeguards the United Kingdom from the further development of EU law by the European Court of Justice.”
That is true. The European Court of Justice is a highly judicially activist court, but it does not have authority in the UK directly through our membership of the EU. Its judgments have effect in the UK in interpreting European law because we have, as a Parliament, voted to pass that European law.
That takes us back to whether we need to state that the UK Parliament is sovereign, and to whether the codification of a constitutional principle, which is well understood and to which the courts have adhered time and again, is necessary. I think not. However, I think that we should be more honest, realistic and straightforward about what really concerns us: the fact that we have too many laws from Europe. There are too many interventions in relation to the Human Rights Act, which causes too many problems and too often gives the sense to many of my constituents that the innocent are punished and the guilty go free. That is shocking. Time and again, constituents approach us to express those concerns.
Mr Cash
Does the hon. Gentleman also accept that Eleanor Sharpston has moved seamlessly upwards and has now reached a very eminent position? Does he also accept that the Thoburn case was decided only at first instance, so no one is absolutely sure what would have happened if it had gone to appeal, or if another similar case were brought and those arguments—especially given Eleanor Sharpston’s present eminence—were accepted?
Mr David
It is extremely unlikely that her arguments would have been accepted by any legal authority given the categorical rejection of them in that case.
In other words, as Professor Hartley, one of the Committee’s witnesses, stated, the metric martyrs—or Thoburn—principle is that
“the position of EU law in the UK and the sovereignty of the British Parliament ultimately depends on British law”.
In apparent contradiction of the reference to the metric martyrs case, the explanatory notes say that the Foreign Office itself sent written evidence to the Committee that stated:
“Our own analysis has led us to the conclusion that there is no persuasive legal authority to support the contention that the doctrine of Parliamentary sovereignty is no longer absolute. Our assessment is that, to date, case law since 1972 has consistently upheld the principle of Parliamentary sovereignty. There is no uncertainty here.”
Therefore, an argument that the Government accept is irrelevant is the only one that they can advance in their explanatory notes to justify the clause. How ridiculous can things get?
Small wonder, then, that when the European Scrutiny Committee concluded that
“the legislative supremacy of Parliament is not currently under threat from EU law”,
most scholars agreed. Moreover, the Committee went on to say:
“we have no reason to doubt that Thoburn reflected the well understood and orthodox position, which left the constitutional principle of dualism intact and is unlikely to be overturned”.
In view of that assessment, it is hardly surprising that the Government have tried two different arguments. The Minister for Europe said in a letter to his parliamentary colleagues:
“it cannot be denied that the issue has been the subject of legal and political speculation.”
We know about the legal speculation. As we have heard, it was dismissed by Lord Justice Laws and even by the Foreign Office itself. But what about the political speculation? Where is that coming from?
We know from evidence submitted to the European Scrutiny Committee by Jean-Claude Piris, director general of the legal service of the European Council—in other words, its legal adviser—that in his opinion clause 18 changes nothing. He believes that it reaffirms the doctrine of UK constitutional law under which EU law has effect in the UK by virtue of an Act of the UK Parliament. Furthermore, he went on to say that the clause is consistent with declaration 17 annexed to the final act of the intergovernmental conference, which concluded the treaty of Lisbon, and with the case law of the European Court of Justice. It is clear, therefore, that there are no threats coming from European Union institutions.
We do not imagine that any of the Government’s Conservative Back Benchers have questioned the sovereignty of Parliament, and I can assure the Committee that it has not been questioned by any Labour Members. Can it be, however, that the sovereignty of Parliament has been questioned by the Liberal Democrats? After all, they are the most pro-European party in Britain, and of course a former leader of the Liberal Democrats, the right hon. Member for Ross, Skye and Lochaber (Mr Kennedy), is the president of the European Movement. Furthermore, a former leader of the Liberal Democrats in the European Parliament, Andrew Duff, is a well-known European federalist.
That there is political speculation is one of the new arguments. Another has been suggested by the Minister for Europe in his letter to his own MPs, and more recently was advanced by the Foreign Secretary in The Sunday Telegraph at the weekend. He said:
“In its sovereignty clause the Bill also deals with one potential but important problem for the future.”
Having accepted that there are no current valid legal arguments, the Government are now pointing political fingers at unnamed politicians, and even suggesting that clause 18 is being introduced because of a hypothetical problem that may, or may not, materialise at some time in the dim and distant future. At the same time, the Government accept that clause 18 is not really needed at all, because Parliament is already sovereign. It is hardly surprising, therefore, that some have referred to the clause as being indicative of the Bill’s confusion, contradictions and general lack of clarity.
Mr David
That is an interesting point. The Prime Minister, rightly or wrongly, certainly believes that it is in Britain’s national interest to adopt from time to time measures that he perceives to be in Britain’s national interest and then to encourage Parliament to follow suit. We have to decide whether that is the case—but that is another debate.
The debate has brought to the fore a number of important issues. I am thinking in particular of the extremely important argument made in the European Scrutiny Committee’s report on the true nature of the threat to parliamentary sovereignty. The objective evidence presented by the Committee to the House leads it to conclude that
“if the legitimate supremacy of Parliament is under threat, it is from judicial opinions in other areas of law”,
not EU law. That is true. I am thinking in particular of the Jackson case of 2004, which concerned the constitutional validity of the Hunting Act 2004, and in which three Law Lords indicated that in certain circumstances the courts had inherent powers to disapply legislation.
I am worried that the Government do not appear to recognise that there is a real debate taking place on this issue between those who argue that the absolute supremacy of Parliament remains unqualified—as explained by Dicey, the British constitutional scholar—and those who believe that sovereignty of Parliament is a construct of common law. According to those who hold this view, the sovereignty of Parliament is open to revision by the courts. In the Bill’s explanatory notes, the notion of parliamentary sovereignty as a construct of common law is expressed as though it were a matter of fact and entirely uncontroversial. Similarly, a one-page note on the Bill produced by the Foreign and Commonwealth Office states:
“there is a common law principle that the UK Parliament is sovereign”.
It is dangerous to view the legislative supremacy of Parliament as an offshoot of common law, because it means that the principle will vary according to the judicial whims of judges at any given time.
Mr Cash
I am somewhat encouraged by the Opposition’s line of argument because, as I explained in my speech, my amendment 10, which deals specifically with excluding the common law principle, does not derive entirely from the explanatory notes but—as the hon. Gentleman has just reminded us, and as we knew from evidence to the European Scrutiny Committee—from the fact of judicial trends, which will not go away. Whatever happens to the explanatory notes, we are still left with a problem, and I believe that the Foreign Office has known this all along.
Mr David
The hon. Gentleman might well have a point. This is something that has to be looked at carefully. I am mindful of the fact that although we are in Committee today, this is not the end of the process. I am sure that we will return to the issue on Report.
It appears that the Government hold the view that parliamentary supremacy is a construct of common law. However, if that is the case, it could be argued that parliamentary sovereignty could be qualified by the courts and that this would not be opposed by the Government. Professor Tomkins, who has been referred to already, is the distinguished chair of public law at the university of Glasgow. He submitted extremely important written evidence before the European Scrutiny Committee and gave extremely significant oral evidence. Let me be clear: Professor Tomkins is not anti-European. He specifically said in his written evidence that he considered that
“it is in the United Kingdom’s clear interest to remain a committed member of the EU.”
However, he expressed his concerns to the European Scrutiny Committee about the supremacy of Parliament and common law as follows. Referring to the Jackson case, Professor Tomkins said:
“one of the things that that case most sharply and, to my mind, alarmingly indicates is that even our highest court, as was, is not sure what to do with parliamentary sovereignty. It isn’t sure what the legal basis for parliamentary sovereignty is. It isn’t sure how much parliamentary sovereignty is under challenge. It isn’t sure how much parliamentary sovereignty continues to represent the group ‘norm’ or the ‘bedrock’ or the ‘keystone’ of the constitution—all of those words are used.
The reason why the Jackson and the Attorney-General case is so long…is that so many of the judges who decided that case…wanted to use the case as a vehicle for the expression of a bewildering variety of different views about the past, present and future state of parliamentary sovereignty. The case, I think, is authority for not much, but it is authority for the proposition that we have the right to be concerned about what is going to happen to parliamentary sovereignty in the hands of the courts.”
That is a powerful statement, and all of us who believe in the importance and the supremacy of Parliament should take note.
As I have tried to argue, the Opposition believe that clause 18 is otiose and unnecessary. It is purely declaratory and merely reaffirms what is widely understood to be the legal and constitutional position regarding the application of EU law in the United Kingdom.
Chris Heaton-Harris
Thank you for calling me to speak, Sir; I call you “Sir” because I am not sure whether I should call you Mr Deputy Speaker or Mr Evans, given the seat that you are in at the moment.
It is interesting to follow the right hon. Member for Rotherham (Mr MacShane) in a debate such as this. I was a Member of the European Parliament, which is arranged in such a way that the lights get brighter if the debate gets exciting and dimmer if the life goes out of the debate. If we had such a system in the House now, I fear that I would be speaking in complete darkness.
It would be easy to answer a number of the points made by the right hon. Gentleman, but I agree with what he said at the very beginning of his speech. I have tabled a bunch of amendments to the Bill, which deserves tightening up, although there is something in it worth salvaging. However, I looked at clause 18 and thought that it did not mean anything, so it was not worth tabling an amendment to it. It is a declaration.
Does clause 18 put the sovereignty of Parliament in relation to EU law beyond speculation? I do not think so. Does it affirm and confirm that EU law has legal standing in the UK only because Parliament wills it through Acts of Parliament? I am not convinced that it does. Equally, however, I am not convinced that the amendments tabled to clause 18 would add anything to it; they are not anything to get excited about. I do not think that clause 18 is a very good clause, and I am pretty sure that it is not a sovereignty clause. If it has a place anywhere in the Bill, it should be in the preamble. It would be a good place to start—a sort of “This is where we came from”.
I have been following this process through the European Scrutiny Committee, and I have been fascinated by the different sorts of opinion that we can get from academics. In my 10 years as a Member of the European Parliament it was always interesting to get at least three academics in the room to give advice, because people knew that they could then get three completely different opinions and choose the one that they wanted.
I like to call myself a pragmatic Eurosceptic; I am a great believer in dealing with what is on the table and what we can achieve. I would like to think that the Bill will be able to achieve some things when we come to later clauses and amendments, but I just cannot bring myself to get excited about clause 18. I wish that the Government had not called it the delivery of the pledge made in the Conservative party’s election manifesto, because I simply do not believe that it is.
There are many voters across the country who are slightly sceptical about Europe. The hon. Member for North Durham (Mr Jones) has left his seat, but many voters in his constituency will be sceptical about what goes on in the European Union. I do not think that they will feel comforted by the fact that clause 18 is in the Bill. If we vote for the amendment tabled by my hon. Friend the Member for Stone (Mr Cash), I do not think that they will wake up and think that that has achieved very much. Whether the clause stays as it is or the amendment is accepted, we will still be where we are: nothing will have changed.
I followed the process in the European Scrutiny Committee with great interest because some interesting and eminent people came before us. They often looked at the exciting parts of the Government’s explanatory notes to the Bill, especially the statement:
“This clause has been included in the Bill to address concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts.”
I assume that that means the British courts, but because it is fairly vague I guess that it could equally mean the European courts. I have written to the Minister for Europe asking for clarification on a number of points about the Bill, but the explanatory notes already say:
“Clause 18 is a declaratory provision which confirms that directly applicable or directly effective EU law only takes effect in the UK as a result of the existence of an Act of Parliament.”
I think that the whole House can concur with that point. The principle of parliamentary sovereignty is that Parliament is free to make or unmake—that is a terrible phrase, but it means to get rid of—any law if it wishes to do so, which will be upheld by the courts. That has been a keystone of the UK constitution for centuries. Nothing in the clause, or indeed in the amendment to the clause, would change that.
We must remember that the British people have a distinct lack of trust in what anybody says on this subject in this place. They do not trust Her Majesty’s Opposition, because although the shadow Minister, the hon. Member for Caerphilly (Mr David), may say that the constitutional treaty was very different from the Lisbon treaty, the majority of the public are not fools and they understand that the words were basically the same; in fact, even the order in which they appeared was basically the same. The Lisbon treaty was pretty much the same thing, and we should have had a referendum. Even if the hon. Gentleman disagrees with that point, he must understand that people outside this place feel like that.
I am happy to concur with the people who say, “Let’s be honest about this.” I would like to repeal sections 2 and 3 of the European Communities Act 1972, and I would like to have a proper sovereignty Bill. However, that is not on offer. I am in a coalition Government and lots of compromises have had to be made, some of which I am deeply disappointed about, but all of which I understand, because we are here to sort out the economic mess that the other lot left us. I want to get on with doing that particular job. I cannot get myself excited about all this.
Mr Cash
My hon. Friend is making remarks with which I must, unfortunately, disagree. In particular, I do not think that he has quite understood the nature of sovereignty. The United Kingdom Parliament is sovereign only in so far as it is not affected by decisions taken by the courts. Sovereignty is about the rule of law, which pivots between the courts on the one hand and Parliament on the other: we make and they interpret. When they get into the position of seeking, as they now are, through the common law principle and their judicial assertions to erode sovereignty by specific words, they are invading our sovereignty. In amending and eliminating that, as I seek to do, we would revert back to the supremacy that we have always wanted and insisted on.
Chris Heaton-Harris
I thank my hon. Friend for his intervention. However, during my 10 years as a Member of the European Parliament I gained a rough idea of what sovereignty was and how it is viewed by different member states within the European Union. His amendment would have some strength if we had market-tested it on the academic experts who appeared before the European Scrutiny Committee. I truly believe that if we had said, “This is what clause 18 states. What do you think of that?” they would all have said what we have said about the clause, which has been repeated a number of times. If we had asked whether adding this sentence to the clause would protect us in any way, I am pretty sure they would have said, “No, not really. This is all a matter of interpretation for the lawyers. We won’t get anywhere like that.”
Mr James Clappison (Hertsmere) (Con)
Like several colleagues who have already spoken, I was a member of the European Scrutiny Committee that considered this Bill. I think that the Committee performed a very useful exercise, and I am very grateful to all the esteemed academics who came along to give evidence
The hon. Member for Dunfermline and West Fife (Thomas Docherty) was not entirely fair to the Government in his comments. I think that my right hon. and hon. Friends were absolutely right to ask the question, “Is there a need to entrench parliamentary sovereignty?” and to identify the threats to parliamentary sovereignty, which probably intensified during the period of the previous Government—threats coming not only from the European Union but from judicial activism and the role that judges have assumed for themselves in some aspects of our country’s governance. Ministers need to ask themselves whether the clause, as it stands, satisfactorily meets the objectives of entrenching parliamentary sovereignty that they set themselves. Having taken part in the proceedings of the Committee, I am afraid that I have reached the conclusion that it does not.
My hon. Friend the Member for Daventry (Chris Heaton-Harris), who spoke very well, was good enough to refer to the various academics who came before the Committee. I am used to hearing from experts and academics evidence that is so wildly at variance that one cannot see how they could be experts in the same subject, let alone come to the same conclusion. However, the weight of the evidence from the experts to the Committee was almost unanimous; in fact, it was unanimous about clause 18. In their opinion, the clause did not meet the objectives that the Government had set for it. One or two of them went even further and said that because of its being restricted to the European Union in its declaration of sovereignty, it could possibly damage this House and parliamentary sovereignty as regards whether parliamentary sovereignty was part of common law and could be dealt with as such by judges. The evidence that we heard was conclusive that the clause does not meet the objectives.
Professor Tomkins from Glasgow university has been referred to, and I can do no better than to quote his conclusion:
“For all of these reasons, clause 18 as presently drafted may be seen as an opportunity missed. Parliamentary sovereignty is under considerable challenge from multiple sources. For those who seek its robust defence and protection, clause 18 falls substantially short of the mark.”
Professor Craig from Oxford university, another distinguished academic with a different perspective, came to the same conclusion. He could identify only two occasions on which the clause could be relevant. One of those concerned what would happen in the interim if this country were ever to leave the European Union, and what the status of European Union law as opposed to British law would be in such circumstances.
Mr Cash
I very much agree with my hon. Friend’s speech. Does he agree that the expert witnesses were all agreed on the judicial trend, except that the common law radicals among them wanted it, whereas the others—Tomkins and Goldsworthy—most emphatically did not? It was our judgment that the last two were right and that the common law principle people were wrong.
Mr Clappison
My hon. Friend is right, as were those experts. As a House, we are right to address this matter, and Ministers are right to address it.
It was interesting that earlier in the debate, the hon. Member for North Durham (Mr Jones)—a Labour Member—seemed to put forward at some length the view that we should defend the judges and not the will of the people, as expressed through this House. That was an interesting proposition to hear from the Labour party, and seems at odds with its history. The conclusion that I have come to is that the clause does not accomplish the objectives that the Government set themselves. The question is how we can meet those objectives.
Mr Cash
Does my hon. Friend mind my mentioning that, for reasons connected with the European Communities Act 1972, the Merchant Shipping Act 1988 was struck down by the courts because they said it was not sufficiently within the framework of European law? With the current judicial trends, that is the kind of situation that we can envisage on an array of matters contained in the status clause. Even if we disagree with a piece of European legislation, our legislation can be struck down if it is inconsistent with it.
Mr Jenkin
It is a great pleasure to follow my hon. Friend the Member for Hertsmere (Mr Clappison), who made an absolutely outstanding speech. I should like to echo a great many things that he said, but brevity does not allow. I do, however, point out that the context of the debate is the fact that the current deluge of initiatives, the possible ending of opt-outs, the new legislation that is coming through and the expansion of the legal order do not require the expansion of competences. The competences for those things are already in place, so they will not trigger referendums.
My hon. Friend was right to emphasise a point that my right hon. Friend the Member for Wokingham (Mr Redwood) made. We live with an unwritten constitution, and institutions have powers that are not written down anywhere. If those institutions do not use those powers, suddenly the lights will come on one morning and they will be gone. That is what we have found during our membership of the European Union. Although it seems unthinkable that that could happen to the sovereignty of Parliament itself, we have to recognise that possibility.
The European Scrutiny Committee’s extraordinarily powerful report on clause 18, and the unanimity of the evidence given to the Committee, underline the threat to the sovereignty of this Parliament from the behaviour of our own Government. I would very much like to have welcomed the clause, but I cannot bring myself to do so. It simply does not deliver the reassurance, the finality and the end to ambiguity that we promised our voters at the last general election.
My hon. Friend asked about the nature of sovereignty and power. People tend to use those terms interchangeably, but power is the ability to produce intended effects and can be used legally or illegally, with or without authority. Authority is the legitimate use of power, and legal sovereignty is the ultimate source of authority. This House has had legal sovereignty, pretty well uncontested, for the past 300 years or so, and that lies at the heart of our unwritten constitution and the democratic control thereof, as my hon. Friend the Member for Stone (Mr Cash) so ably explained.
Mr Cash
My hon. Friend is making an excellent speech. Does he agree that when those principles were being established in the Bill of Rights in 1688 and 1689, the very reason why the courts were precluded from interfering in internal proceedings in Parliament under article 9 was precisely to deal with that question? It set out that the courts must not get involved in trying to make determinations about parliamentary sovereignty. That was exactly what it was all about.
Mr Jenkin
Yes, and without wishing to digress, I point out that Lord Phillips, the current president of the Supreme Court, qualified article 9 of the Bill of Rights in a recent judgment by suggesting that the doctrine of implied repeal applies to it. The Supreme Court is questioning the Bill of Rights itself, and if we are not aware of how parliamentary sovereignty is now being questioned, we are not living in the real world.
I listened to the hon. Member for Caerphilly (Mr David) say that the clause merely reaffirmed the status quo, but the status quo is not a static situation. It is constantly fluid, and the rather lame attempt in the clause to address the situation is causing great concern.
Mr Cash
Does my hon. Friend also agree that, in the context of Van Gend en Loos, Costa and all the other cases that declaration 17, which is attached to the Lisbon treaty, covers, there is no attempt, in declaring the primacy of European law, to define the word “primacy”? Similarly, there is no need to define parliamentary sovereignty. My answer to the Government’s point on that issue is, “Tosh”
Mr Jenkin
I will revert to that later. The great danger of the European constitution was that it was explicitly and legally autochthonous. It derived its authority from itself and its own roots. At least the Lisbon treaty reverted to the principle that authority comes from the member states, but it contains the important and dangerous declaration about not only the primacy of EU law, but the EU’s constitutional supremacy over the constitutions of member states. That means our Parliament. I therefore fail to understand how anyone can say that there is no threat from the EU to the sovereignty of this House. That lot over there signed a treaty, without a referendum, that created such a threat. That has given rise to a demand for clarification about the sovereignty of Parliament in some form.
Many of my colleagues—I have talked to them in the Lobbies as well as hearing one or two speaking today—think that clause 18 is not the fight to have. If I may paraphrase my hon. Friend the Member for Daventry (Chris Heaton-Harris), he said that other clauses were much more important. It is not an either/or. It is suggested that somehow a referendum would be a panacea. People seem to think that as soon as we have a referendum—preferably an in or out referendum—we will be able to settle the issue.
The truth is that we may one day quite soon have a referendum on the European Union. It might be on the question of an additional treaty or power, and it might turn into a referendum on in or out. But the actual fact of a referendum will not solve anything. Instead, it will throw into flux the question of our membership of the EU, and the Government of the day will have to decide how to use that referendum to negotiate a new relationship with the EU. We will not stop the trains running through the tunnels and cancel all the flights and the trading. We will still have to have a relationship with the European Union.
Suppose that we wanted to take back control over our trade and to exit the customs union. We would need to have a renegotiation, sector by sector, of every part of the British economy’s trading relationship with the EU. The point about a customs union is that there are no barriers—it is a single trading area. If we were to elect to have a separate trading area—to leave the single market—but we wanted to continue to trade with that market, we would need a trade agreement, so we would need to negotiate one. Immediately, we would need renegotiation.
We constantly hear it said, “Oh, if you Eurosceptics want to leave the European Union, why not be completely honest about it?” The pro-Euros—the people who are dedicated to the annihilation of the sovereignty and independence of this country—always put the issue as a binary question and, to an extent, they are right. It would be a self-fulfilling prophecy—a referendum would become a matter of leave or stay. If we are not sovereign in this Parliament while this country is a member of the EU, the only option is to jettison all the treaties and Acts, so we have very little flexibility.
What we as a Parliament need, in those circumstances, is the ability to negotiate partially, to pick and choose from a menu of options. But that would require Ministers to be able to legislate to suspend this EU instrument or that EU instrument. For example, they would need to be able to suspend EU City regulation so that we can get our competitiveness back. The Prime Minister’s remarks on Monday, about his pro-jobs agenda and a flexible labour market, are another example. The coalition also says that it wants to renegotiate the working time directive to recreate the competitiveness of the British labour market. So Ministers would need the option of passing an Act of Parliament to suspend the application of certain EU instruments, but the question is whether that option will be available to them.
A little earlier, the beef ban was mentioned. I was a humble Parliamentary Private Secretary in the Scottish Office at the time, and we had a lot of discussion about how it could possibly be legal for the EU not just to ban the import of beef into other member states, but to ban the export of British beef from the UK to third-party countries. We were banned from exporting to anywhere, and there was some discussion about whether we could suspend the effect of that legal instrument to stop the EU preventing us from exporting our beef to other countries. The advice was, “Oh no, Minister. You can’t do that because it would put us in breach of the European treaties, infraction proceedings will be taken against us in the European Court of Justice and we will be found to have broken the law. Minister, I must advise you not to break the law, as otherwise you will be personally liable.” Do Members get the point? Ministers have to obey the law and accept legal advice. Unless we sort out the sovereignty of Parliament and make it explicit that Parliament can suspend European Community law in selected circumstances, Ministers will not be in a position to exercise the freedom that Parliament has given them.
Mr Cash
The occupied field is virtually full; very little more can be put into it. Does my hon. Friend also accept that one of the difficulties we are confronting is the question of political will, which we have not yet mentioned, and that the real problem, which emerged from some of his previous comments, is that we have been verging on appeasement for far too long?
Mr Jenkin
I totally endorse that comment. There might even be in this coalition, for reasons of political convenience, a will in the wrong direction. It is certainly not what the British people want or what we stood for in our election manifesto.
Provided that the UK courts recognise the sovereignty of Parliament, any legal dispute or clash between the British legal system, under the sovereignty of Parliament, and the European Community legal system, would be resolved by political negotiation. However, that is only the case so long as the UK courts recognise the sovereignty of Parliament and our right to suspend selectively legal instruments. That is a very important negotiation lever. But will that lever be available to Ministers in the future? Will that option be available to Parliament and future Governments? That is where the challenge lies. This is the crux of why we need a true sovereignty clause.
Mr Jenkin
I think I am safe to agree with what the hon. Gentleman says, and that is why clause 18 is not a sovereignty clause, as he says. Therefore, if he agrees with everything that I am saying, I cannot quite understand why he does not want to make clause 18 a sovereignty clause. It would be quite easy to do so. I cannot for the life of me understand this. What could be less contentious than a declaration in the Bill that said, “The sovereignty of Parliament is hereby reaffirmed”? The idea that this would somehow open the issue of parliamentary sovereignty to judicial interpretation seems to me the daftest bit of legal advice of the lot. We make the statute and statute overrules everything, so if Parliament is sovereign and says in statute that it is sovereign, we clobber whoever challenges that; indeed—it is up to Parliament—we could actually sack the judge who tried to do that.
Mr Cash
The latest Act would prevail over all the previous Acts. Therefore, in so far as there was any uncertainty or ambiguity in any previous position, including the provisions of clause 18 as drafted, if they were separately enacted, the fact that we had passed an enactment reaffirming our supremacy would be not only a signal to the courts, but a requirement on them to give effect to it.
Mr Jenkin
Absolutely, and it would not be open to Lord Hope or any others to say that the sovereignty of Parliament was being qualified bit by bit because the rule of judges was the fundamental principle of the constitution. It would not be open to him to say that, and Parliament would be able to make it clear to him explicitly that that was not in the constitution of this country. We should want to do that, because we are democrats and we believe that we hold sovereignty on behalf of the British people. We want a democratic political settlement in this country, not rule by judges. That is not just the view of a few people on the Conservative Back Benches; I would hazard a guess that, when it comes to the crunch, it is the view of the British people—the constituents we represent. My hon. Friend the Member for Stone represents an all-party Committee that unanimously accepted much of what Professor Adam Tomkins said.
It is now time for Ministers to accept that they might not be right on this. As I said to the Minister for Europe yesterday afternoon, I have been accused for 18 years of being much too pessimistic about the direction of the European Union, but when have I been proved wrong? That pessimism has been borne out time and again. That has not made me a bitter person; it has made me persistent. I congratulate my hon. Friend the Member for Stone on his incredible persistence, because one thing is certain: this argument would not have been advanced with such sincerity and intellectual rigour without his personal intervention. To that extent, it bears his imprimatur, but he speaks on behalf of the British people on these matters.
The Minister for Europe (Mr David Lidington)
I am grateful to all right hon. and hon. Members who have taken part in today’s debate: my hon. Friends the Members for Bury North (Mr Nuttall), for Hertsmere (Mr Clappison), for Daventry (Chris Heaton-Harris), for Harwich and North Essex (Mr Jenkin), for Aldridge-Brownhills (Mr Shepherd) and for Dover (Charlie Elphicke); my right hon. Friend the Member for Wokingham (Mr Redwood) and my hon. Friend the Member for Stroud (Neil Carmichael); and equally the hon. Members for Luton North (Kelvin Hopkins), for Caerphilly (Mr David), for North Durham (Mr Jones), for Dunfermline and West Fife (Thomas Docherty), and for Linlithgow and East Falkirk (Michael Connarty).
The debate has moved between passion and intense thoughtfulness, and both those qualities were demonstrated in the opening speech of my hon. Friend the Member for Stone (Mr Cash). Although he and I have our differences this evening, I want to place on the record my respect not just for the contribution that he has made to tonight’s debate but for the commitment that he has shown in his chairmanship of the European Scrutiny Committee. He is a gentleman with whom I may disagree from time to time, but I happily salute him as a patriot and a champion of the rights and privileges of the British Parliament. We differ over which form of words and which draft of amendment will best accomplish the objectives that we seek. As today’s debate covers both the question of approving clause 18 and the amendments and new clauses that have been tabled, I want to structure my comments first by making clear the Government’s purpose in introducing the clause and then going on to address the individual amendments and new clauses.
Clause 18 addresses the concern that the principle of parliamentary sovereignty, as it relates to European Union law, might in future be eroded by decisions of the United Kingdom’s domestic courts. It would provide authority that could be relied on to counter arguments that European law could become an integral and autonomous part of the UK’s legal system independent of statute. It responds to concerns that the doctrine of parliamentary sovereignty as it relates to EU law may not be unassailably absolute, and may be qualified. The concern is that the doctrine of parliamentary sovereignty is part of common law—a point illustrated by the report by the European Scrutiny Committee and the evidence it took, and clearly a matter that is subject to intense academic debate and contention.
The risk is that British courts might, in future, be attracted to the argument that European law no longer takes effect in this country by virtue of an Act of Parliament but has become entrenched in our legal system, enjoying an autonomous status—in the jargon, it has become a basic “grundnorm” underlying the UK legal system, to be applied by our courts and against which ultimately UK legislation falls to be measured.
There are three main sources for that concern. The first stems, yes, from the arguments run by the counsel for the prosecution in the so-called “metric martyrs” case of Thoburn v. Sunderland City Council. It is worth saying a little about that case because the issues raised were of great significance. The prosecution argued that the European treaties’ effect in domestic law did not depend—merely, at least—on the terms of their incorporation by the European Communities Act 1972 but, to a decisive extent, on the principles of European law itself.
The argument was that European law had been entrenched rather than merely incorporated, by virtue not of any principle of domestic constitutional law but of principles of Community law already established in cases such as Van Gend en Loos v. Nederlandse Administratie der Belastingen and Costa v. Enel, to which hon. Members have referred in this debate.
If that argument had prevailed and if it were to prevail in the future, we would need to think about what the practical effect might be. For example, let me take the prohibition on discrimination on grounds of nationality set out in article 18 of the treaty on the functioning of the European Union. Our courts have recognised that the provision has direct effect in the United Kingdom. Under the prosecution’s principle in the “metric martyrs” case, the courts would interpret that prohibition and seek to enforce it as part of UK law, even if Parliament were to remove the statutory mechanism by which it had been given effect in the UK, by either repealing or amending the European Communities Act 1972.
But if we pass clause 18 and enshrine in statute the principle that the authority of European law derives solely from Acts of Parliament, then the courts could not do that because article 18 could have direct effect in the UK only because Parliament had provided a statutory mechanism to allow that. If that statutory mechanism were to be repealed without replacement, there would be no basis on which it could be given direct effect in this country. Although those arguments were rejected by Lord Justice Laws, they could well be made again in future cases.
Mr Cash
That was a case of first instance and we do not know what might happen in future. Does my right hon. Friend accept the reasoning of Lord Bridge in Factortame? He clearly stated that our adherence to the principles that flowed from an Act—the European Communities Act 1972—and therefore his judgment was based on a voluntary acceptance by this House, in its sovereignty. I add the words “in its sovereignty”, because that is the key issue.
Mr Lidington
Yes, and I shall come on to say a bit more about that in a moment.
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.
Mr Cash
The reference that the Minister slipped in about Martin Howe is quite unreasonable. What Martin Howe said in his written evidence is that he thought that the provision, if it were to be made properly and correctly, ought to be done within the framework of the European Communities Act 1972.
Mr Lidington
Certainly not. I am saying that we made sure we took legal advice from all the relevant Departments across Whitehall. The views I am expressing—what is in the Bill—reflect the legal advice that has been given, as well as the political decisions that Ministers have taken about what should be included in the legislation.
As I said on Second Reading, clause 18 is declaratory or, as my hon. Friend the Member for Dover said, it is a codification. The clause creates a statutory 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. It reflects the dualist nature of our constitutional system, under which international obligations—including those assumed by the UK through our membership of the European Union—are not self-executing within the UK legal system. The fact that the UK is dualist means that European Union law is enforceable here only because this Parliament has legislated to make it so. The clause makes it clear that such European law has authority only by virtue of the fact that Parliament has, through its Acts, decided to import it into the domestic legal order.
In the event of any litigation arising where a party sought to claim that directly applicable or effective EU law had an autonomous legal existence in the UK, the other party would be able to counter that argument by referring to clause 18 and, similarly, judges would take this into account in addressing the arguments raised in their judgments.
Mr Cash
I am most grateful for the Minister’s final remarks about the judges. He tried to discharge the point, which I had already made, about the argument that comes from the judges in the Supreme Court and the judicial trends—there was pretty well unanimous agreement on those in the evidence that was given to us—towards a diminution of parliamentary sovereignty through the courts. He must accept that the very fact the judges made those remarks with regard to the Hunting Act 2004 and the case of Jackson in 2005 not only indicates but makes it a darned certainty that they will say such things in respect of other case law, irrespective of whether it is in the European framework or not.
Mr Lidington
That enforces the need for us to put on a statutory basis the position that European law has effect here solely because of parliamentary decision and not any other source of authority.
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.
Mr Cash
I thought that my right hon. Friend would give way at that point, because he could see that I could not resist making a point. The status of EU law provision—the stand-alone arrangement that is unnecessary in its present form and achieves nothing—refers to the entire gamut of European legislation. If I may say so, it is exceedingly disingenuous of him to trot out the argument given to him by his lawyers that there is a comparison with the Chiropractors Act 1994.
Mr Lidington
We wanted to be certain that the clause caught every piece of legislation that it can be argued gives effect to European Union legislation in this country. My hon. Friend would have been the first Member of this House on his feet to criticise me had I left the loophole of legislation other than the 1972 Act that it can be argued has such an effect.
I shall turn to the specific amendments, starting with amendment 41, which was tabled by my hon. Friend. The amendment seeks to affirm the overall principle of parliamentary sovereignty in relation to EU law. I maintain that there is the difficulty that there is no existing statutory definition of sovereignty. The clause deals with one specific practical expression of parliamentary sovereignty. To introduce the word sovereignty more generally would invite speculative consideration by exactly the kind of ambitious judges whom he fears.
It is clear from the evidence to the Select Committee that there are differences of opinion on the nature of parliamentary sovereignty. Professor Wade is quoted as saying that
“the sovereignty of Parliament is ultimately a judicially recognised ‘political fact’. And when the judges recognise that the political facts have changed, the meaning of sovereignty changes accordingly.”
Professor Allan is quoted as disputing that:
“sovereignty should be seen, not as judicial recognition of political fact, but as a rule of the common law based on reason just like any other rule of the common law.”
Something based on reason is self-evidently subject to change. Therefore, I do not believe that passing the amendment would provide the safeguards that my hon. Friends seek. I do not think that it would achieve the purpose as successfully as the Government’s wording in the clause.
Mr Lidington
Yes. I am an elected Member of Parliament. I did not campaign for many years to come here to hand over the powers and privileges of the House of Commons to unelected groups of any sort.
New clause 1 is ambiguous because the lack of a definition of parliamentary sovereignty may encourage the courts to intervene rather than discourage them from doing that. I also think that it is mistaken because the primacy of EU law in the UK legal system does not flow from section 3(1) but is addressed under section 2(4) of the European Communities Act. If the intention is to guard against any risk of our courts using European Court jurisprudence to undermine parliamentary sovereignty, I do not think that it would achieve its desired objective given its drafting.
New clause 4 refers to part 3, but its primary focus is clearly clause 18. In one sense, I support the new clause’s aim. We have made it clear that clause 18 is declaratory and does not alter the existing relationship between European and UK law, and that the rights and obligations assumed by this country on becoming a member of the EU remain intact. However, I am afraid that the Government cannot support the new clause, which implies that something in clause 18 could adversely affect the existing constitutional law on the sovereignty of Parliament in relation to European law. That is not the case. As hon. Members can imagine, we examined the matter carefully and took legal advice from the Foreign Office and elsewhere in Government. I therefore urge my hon. Friends not to press new clause 4.
Amendment 52, tabled by the official Opposition, need not detain us for too long. It is misleading because it implies that the ECJ has a role in determining how European law takes effect in this country. When the hon. Member for Caerphilly next refreshes his memory by reading the treaty, he might see that this is not a matter that falls within the ECJ’s jurisdiction. It is a matter for the UK courts, and no less a figure than Jean-Claude Piris, recently retired as head of the Council’s Legal Service, said in his evidence to the Committee that it is for each member state to determine the constitutional mechanisms through which it gives effect to the legal obligations arising from membership of the European Union.
The Government think that this amendment is not necessary. It is not necessary to take up additional parliamentary time through the process that the Opposition propose. In the event that there were to be a serious challenge to the authority and sovereignty of Parliament, I would expect that hon. Members, on both sides, would want an immediate statement from the Minister and an urgent debate, instead of waiting 12 months for an annual report, which is the only remedy that the hon. Gentleman proposes.
In the coalition’s programme for government, we said that we would examine the case for a United Kingdom sovereignty Bill, to make it clear that in terms of European law ultimate authority remains with Parliament. Through clause 18, we are affirming and confirming that the status of European law in our legal order is dependent on a continuing statutory basis. That is a commitment that the Government believe it is right to put beyond any future speculation. The place where future UK law and future decisions about the authority of European law should be determined is in Parliament and nowhere else. I commend the clause to the House.
Mr Cash
I am very glad to see that the Prime Minister is in his place for these final moments. He and I have had some interesting correspondence. I thank all hon. Members who have participated in this debate, which included some brilliant speeches from my hon. Friends the Members for Harwich and North Essex (Mr Jenkin), for Hertsmere (Mr Clappison), for Aldridge-Brownhills (Mr Shepherd) and others.
In the brief time that I have left, I confirm that I will press amendment 41 and I would be astonished if anybody voted against it. However, I am certain that they will. The difficulty that they will then be in is that, although I will not move the other amendments because of a lack of time and because the issues have been encapsulated in the debate, I have demolished the argument put up against the amendment that the status clause should not be by virtue of a common law principle, both in respect of the academic arguments and of those that have been put forward by the Foreign Office in the explanatory notes. I have, I believe, demolished the argument relating to the question of parliamentary sovereignty, and I refer the Minister to the State Immunity Act 1978, which clearly deals with the question of the sovereign or other head of state in his public capacity. It is already in an Act of Parliament and, by the way, it is not defined, any more than “the rule of law” is defined in the Constitutional Reform Act 2005. It does not need definition: the statement and the principle stand.
The sovereignty of Parliament is inviolate, but requires to be reaffirmed, as the Prime Minister has repeatedly told us in the past, but unfortunately will not do through this Bill. With respect to the question about section 3, it eliminates the impact of the courts seeking to use the European Communities Act 1972 to achieve their objectives in relation to parliamentary sovereignty. The other provision in new clause 4 reaffirms the existing constitutional law on the sovereignty of the United Kingdom Parliament in relation to EU law, and I am glad that the Minister has said that he agrees with the sentiments, which I believe are justified.
Having said all that, I believe that we have had a thoroughly good debate, and that, above all else, we have proved our point. We know that we are not going to win the vote. The Labour party has completely reneged on its principles, as expressed by the leader of the party when he said that their rubbish amendment was a matter of principle in defending parliamentary sovereignty. He must be joking! The fact is that clause 18 does not defend parliamentary sovereignty either.
European Union Bill
William Cash Excerpts(15 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Hague
I am not here to answer for the party policies of other members of the coalition but for the coalition Government as a whole. The hon. Lady can rest assured that both parties in the coalition join strongly in their support for the Bill. It is sponsored by the Deputy Prime Minister and the Prime Minister, and it is therefore easy for people in a third party to join us in supporting it, as the hon. Lady will no doubt want to consider doing.
Mr Cash
Given that we stood united as a party in opposing the Lisbon treaty and supporting a referendum, and given that we voted for that, will my right hon. Friend explain why we have done a U-turn on that within the coalition Government? Will he also explain why he was not prepared to come to my European Scrutiny Committee to explain the circumstances behind the Bill?
Mr Hague
On the first point, I do not think the coalition Government have done a U-turn, as the Bill implements part of the coalition agreement that was set out in the few days after the general election. It is true that the Conservative party, when the Lisbon treaty was ratified last year, said that in those circumstances we could no longer hold a referendum on the treaty. That, of course, was made clear before the general election. My hon. Friend is being a little unfair to both parties in the coalition.
On the second point, I understand that my hon. Friend the Minister for Europe gave a splendid exposition of the Government’s position to the European Scrutiny Committee. As the Minister who was most involved in drafting the Bill, he was best equipped to go before the Committee. I look forward to discussing these issues with my hon. Friend the Member for Stone (Mr Cash) on many occasions. Let there be no fear about that.
Mr Hague
I will in a moment, yes. Like any ministerial decision, it will be open to any member of the public—yes, any member of the public—who is entitled to vote in a referendum to challenge the Minister’s judgment through judicial review. The reasoned statement set out in clause 5 makes any such ministerial decision as amenable to judicial review as is possible. That provides a powerful reason for Ministers to stick to both the letter and spirit of the law, and not to seek to sidestep the requirement for a referendum. We have ensured that we are as precise as possible about what would require a referendum.
Mr Hague
I will give way again in a moment, but I shall give way to my hon. Friend the Member for Clacton (Mr Carswell) next.
We have also provided further clarity on the scope of the referendum lock by setting out certain categories of treaty change that would not require a referendum: first, the accession of a new country to the EU—the hon. Member for Birmingham, Edgbaston looks surprised—would not require a referendum, although each accession treaty would still require approval by an Act of Parliament; secondly, a treaty change that, while it would have to be agreed and ratified by all member states, would not apply to this country; and, thirdly, a treaty change that merely sought to codify EU practice in relation to the previous exercise of an existing competence. The Bill does not cover any use of the EU’s existing competences as defined in the treaties, because those competences have already been transferred and the extent of the competences is set out in European law.
Mr Hague
We welcome the right hon. Gentleman back to the House. It is traditional in these circumstances to sit on the Front Bench below the Gangway in a menacing posture towards his own party, and we notice that he has gone to sit in that particular position. There is some political significance in that.
I thank the right hon. Gentleman for stressing the detail into which the Bill goes and the extent to which we are insisting that a referendum should be held, because that should be of enormous reassurance to some of my hon. Friends. On the specific subject of the advocates-general, one of the matters that I said would not be subject to a referendum is the loss of our veto on the number of advocates-general.
Mr Cash
I am extremely grateful again to my right hon. Friend. Does he recall that in the evidence that was given to my Committee and in the conclusions of the report that it produced last night, there was an assertion and a conclusion that the Bill invites litigation in the courts? He has just confirmed, with regard to the circumstances of a referendum, that he too would invite litigation. Does he not think that the time has come when this House, as the ultimate authority of the law of this land, should decide such matters, and not just buck them over to the courts?
Mr Hague
The Bill is about many matters being decided in this place or by the people. The hon. Gentleman’s point is distinct from the one that was raised in the European Scrutiny Committee report about clause 18. I made the point that an executive ministerial decision is subject to judicial review, which is always the case. The decision of the right hon. Member for South Shields (David Miliband) on the Lisbon treaty was taken to judicial review by Mr Stuart Wheeler, albeit unsuccessfully. Ministerial decisions are subject to judicial review and that is not changed by the Bill.
The right hon. Member for South Shields is still looking puzzled about the position of the advocates-general. The loss of the veto in the appointment of advocates-general and European Commissioners would be a significant loss of national—
Mr Hague
No, I must make a bit of progress.
The Bill will give Parliament more control over whether the Government can agree to a number of other important EU decisions, sometimes referred to as the self-amending provisions of the Lisbon treaty. Those decisions, which are known as passerelles or ratchet clauses, contain built-in mechanisms that allow modifications to EU treaties or the exercise of one-way options, without recourse to either of the formal methods of treaty change.
The Government have identified three types of ratchet clause, although I hesitate to go into detail after the comments of the hon. Member for Blackley and Broughton (Graham Stringer). However, it is important to be clear on this matter. There are clauses that allow for a change of legislative procedure, clauses that allow for changes in voting procedure and clauses that allow for the expansion of the scope of an article allowing the European Union to act.
Given the lack of a universal definition and the Government’s aim of ensuring that our proposals are as clear as possible to Parliament and the public, we have set out explicitly which treaty articles require additional levels of control. As with future treaty changes, passerelles or ratchet clauses that entail a transfer of power or competence will require the consent of the British people in a referendum. There will be a referendum requirement on any methods in the treaties for giving up vetoes that we have deemed to be significant. Clause 6 covers the simplified revision procedure and six provisions in the treaties that allow for vetoes to be given up without formal treaty change.
Clauses 8 and 9 provide for parliamentary controls over two types of decision: the use of article 352 of the treaty on the functioning of the EU—the so-called broad enabling clause—and the use of three ratchet clauses in the field of justice and home affairs. Some additional proposals that require a vote in both Houses, rather than a Bill, are listed in clause 10. They are mostly articles that modify the composition, rules of procedure or statutes of existing EU institutions or bodies.
The coalition stated in its programme for government that it would examine the case for a United Kingdom sovereignty Bill. I announced in October that, following that examination, we had decided to include a provision in this Bill to place on a statutory footing the existing common law principle of parliamentary sovereignty. The doctrine that EU law has effect here for one reason only, namely that authority has been conferred upon it by Acts of Parliament and subsists only for as long as Parliament so decides, has been upheld consistently by the courts. However, we can see considerable merit in placing that position beyond speculation on a statutory footing. That will guard against any risk that in future, common law jurisprudence might drift towards accepting a different argument. In other words, we have included a clause that underlines the fact that what a sovereign Parliament can do, a sovereign Parliament can undo.
Mr Cash
I wish to put on record the fact that, in the conclusions to the European Scrutiny Committee’s report issued last night, we unequivocally rejected the notion of a common law principle, because it would offer the courts a gateway to take over jurisdiction in areas that we regard as unacceptable in UK constitutional law.
Mr Hague
Yes, I have read the report, of course, and I note the concerns about the references to the common law in the explanatory notes. However, those references are meant simply as a contradistinction to statute, given that the principle of parliamentary sovereignty is defined nowhere in statute. They are not meant to be determinative of the origin of the principle, which is an issue that goes far beyond the scope of the Bill.
As I set out a few moments ago, under current law any proposal to amend the EU treaties using the ordinary revision procedure can be ratified by the United Kingdom only once parliamentary approval has been obtained by Act of Parliament. We have therefore made provision in the Bill for Parliament’s approval of the transitional protocol on MEPs. That will allow 18 MEPs from 12 member states, including one from the UK, to take up their seats without having to wait until the next scheduled elections in 2014. As that protocol does not transfer any power or competence from the UK to the EU, a referendum is clearly not required. As it is a treaty change, however, all member states are required to ratify it. The Bill also makes the necessary provisions to elect our new MEP, who will, based on the recommendation made by the Electoral Commission in its report last month, represent the West Midlands.
Yvette Cooper
I am afraid that the hon. Gentleman is not picking a fight with me; he is picking a fight with his Government, whom I quoted, and the European Scrutiny Committee, which I quoted. His disagreement is with them, but I hope that he agrees that clause 18 does nothing at all to change sovereignty. In fact, the hon. Member for Crawley (Henry Smith), who asked about a written constitution, got further than anybody else in raising the key question about sovereignty that the hon. Gentleman’s Government are pretending to solve while, in fact, doing nothing of the sort.
Mr Cash
I simply make the point that our Committee report is utterly clear on that subject. What the right hon. Lady quoted is correct. However, her Government were as responsible as any for giving more and more judicial authority—ultimate authority—to the courts. Their main policy over many years could be characterised as handing over more and more powers to the judges at the expense of this House.
Yvette Cooper
I know that the hon. Gentleman has immense expertise on the details of the legal changes, but he and I have a long history of disagreeing over what is important in a particular case, and I suspect that we will continue to do so.
Mr Redwood
It means that when a British Foreign Secretary makes foreign visits, he or she will be kept waiting while the EU ambassador is received and considered, because the latter will speak with more authority on behalf of more people and more states.
It is the third area that we have always reserved for national veto and national competence—central economic policy making—to which I shall address the remainder of my brief remarks in this truncated debate. Literally as we meet here this afternoon, crucial and massive issues are being hammered out in secret around the Council table in Brussels. Quite likely to be on the agenda is the issue of European sovereign bonds and the effective creation of a European sovereign in financial matters that issues debt and guarantees debt on behalf of member states. Do we want that? Are we in it? Is it not a transfer of power if we go along with it? Is it not an issue on which we should be invited to express our views?
Another item on the agenda may be the future membership of the euro. The Council could be considering in secret whether all member states are able to stay in the euro and whether the strong or the weak members should leave. If they are to keep the euro area together, what will be the arrangements for the large transfer payments that need to be made if the single currency is to have some hope of a decent life in the future, as all successful single currency areas have much bigger transfers of tax revenues, subsidies and money around them than the euro area currently has?
Mr Cash
My right hon. Friend portrays so accurately the realities that lie behind this Bill, which is about the economic crisis in Europe as well as many other matters. Does he agree that one serious current problem is the financial stability mechanisms and that if we do not assert our rights in this House and make certain that the courts cannot get their hands on an interpretation that would go the other way, we could end up paying for other countries beyond Ireland—Portugal, Spain and others?
Mr Redwood
My hon. Friend is absolutely right, which is why the transfer of power, if not of competence, is such a crucial issue and why we need to engage in a public debate at this very moment about how far this should go.
I hasten to stress to the House—particularly to my critics, who like to misconstrue what I say—that I wish our partners every success and prosperity with their single currency. I know that if that is the way they choose to run their economies, it is in our interests for it to work. We want them to be happier and more prosperous, and we like to benefit from trading with them, just as they like selling us a lot of their products. My worry is that in the process of our enthusiasm for that, we will draw in Britain—with her rather stretched budgets, even after the changes that the Government have rightly and wisely made—at a time when we do not have the financial strength to go to the aid of all these other euroland countries that are in some difficulty under the euro scheme.
I am a critic of the Irish loan. Of course I do not want to see the Irish economy go down, but I do not happen to think that lending the country lots of money at that juncture, as a result of a crisis deliberately created by the European Central Bank, was a terribly good way to behave. I do not believe that if Britain had declined to make some money available, the Irish loan would not have been negotiated. It would have been negotiated quite successfully by the architects of it—the powers behind the European Central Bank, who literally decided to withdraw funds from the Irish banks at a difficult time and made that decision public, thereby precipitating the crisis. We were engaged in a refinancing package for the European Central Bank. I think we should be told the truth; we should be told why it was a good idea for a country that rightly stayed out of the euro because it did not want the financial risk and hassle, to be drawn into helping finance the consequences of an ill-judged currency without a political union.
A successful currency needs a sovereign to love it and support it. That is why the sovereign’s face traditionally appears on the coinage and why there has to be a symbol to show that the whole weight of legal and economic authority stands behind a currency. If Europe is to have a successful euro, she needs a sovereign. I do not want my country to be part of the euro, and I think that around 80% of the British people agree with me. I think that even Opposition Members temporarily agree with me on this issue; they are not rushing to say that now is a good time to join the euro. We should be open and honest with the British people and say, “We wish the euro well.” We are doing it a great favour by not trying to join it—we would have been an over-mighty subject in it, which might even had led to its toppling earlier—and we are not currently in a financial position to make all the transfer payments available that are necessary for full members of a single currency area.
The House needs to understand that while we are debating some abstruse language and pledging this and future Governments to hold a referendum on treaties unknown about competences unspecified, a potentially massive transfer of power is under way yet again from the member states to the centre. There has to be; the thing cannot work without more central power behind the banks and the economic institutions.
The British Government say that they will accept a treaty extending the centralising powers in the economic sphere because the penalties on these will not apply to the UK Government. Well, I am delighted that the penalties will not apply, but I see no reason why the requirements should apply either, because we are not part of the euro. We should offer our support for a strengthening of economic governance for the euro area alone and make it clear that all the regulations and the directives apply only to that area. I think that my right hon. Friend the Foreign Secretary got it wrong when he said that none of those applies to Britain; several of them do, although without the ultimate penalties. There could be other penalties, incidentally, which might apply to Britain.
When we surrender our veto and allow this treaty to go through on that condition—that it applies only to euroland—we should say that we want something back. We should seek to establish that we believe the European Union already has too much power and that we want something back. Do we want our fisheries back; do we want control over our borders back; do we want control over elements of taxation that have already gone to Europe through common taxation and a series of court judgments?
Power is seeping away as we meet. A massive debate is under way. Will the Government please take this Parliament and the British people into their confidence? Will they take us seriously? Will they give us an adult debate on the reality rather than this show Bill?
Mr William Cash (Stone) (Con)
People have fought and died over many centuries over the need to affirm parliamentary sovereignty—in the civil war and at the time of the defeat of the Stuarts in the 17th century, when the Stuarts’ absolute sovereignty was literally killed off. Since the advent of modern democracy in 1867, people have fought and died in two world wars to preserve the right to govern themselves through their own Parliament by freedom of choice in the ballot box.
The European Union claims sovereignty over our democratic Parliament, and this mouse of a Bill does little to preserve it. Given the present European crisis with the euro, as my right hon. Friend the Member for Wokingham (Mr Redwood) so accurately pointed out, and given the failure of economic governance in which we are absorbed and the coalition Government’s continuing acquiescence in European integration and their refusal to repatriate powers, the Bill does little or nothing to improve the situation.
The European Scrutiny Committee reported last night, to an eerie silence from the BBC, and as we clearly indicated, the Committee’s report is essential reading for those who really want to know what is going on. There are grave objections to the principle, the methodology, the distorting and misleading explanatory notes that accompany the Bill, and clause 18 itself. Clause 18 is a judicial Trojan horse leaping out of Pandora’s box. It is not, as the Foreign Secretary claimed, an enlightened act of national self-interest.
Parliamentary sovereignty is not built on a common law principle, as the Government claim. It is built on the sturdy foundations of the freedom of choice of the voters of this country, and not the whimsy or the Euro-integrationism of some Supreme Court judges. They increasingly claim that they are upholding the rule of law, but I have to ask which rule and whose law.
Shortly before he died last year, Lord Bingham, the late Lord Chief Justice, in his book “The Rule of Law” took on three fellow members of the Supreme Court who had previously adjudicated on the Jackson case with him in the House of Lords a few years ago as to their views on parliamentary sovereignty, as set out in our report. This is an extremely unusual situation and was greatly merited. I do not impugn their motives, but I criticise their judgment.
Only a couple of months ago, Professor Drewry of London university stated in a lecture that
“one can perhaps detect in the recent pattern of House of Lords and Supreme Court decisions, an appetite on the part of the Justices—encouraged by some continuing developments in EU and human rights law—to begin to get to grips with constitutional issues that previous generations of judges would have regarded as completely off limits.”
In this context, judicial activism is on the march. It has been there for a long time and it is increasing its tempo. The judges are not toying with all this, as was suggested by one witness. I suggest that Members read not only our report, but the articles, many of them written by these judges, and the speeches, for example, of Lord Steyn and Lord Hope, and many others that are quoted in our report.
The Bill, as Professor Adam Tomkins said in evidence, and as I mentioned in an intervention on the Foreign Secretary, is an invitation to litigation and, I would say, deliberately so. It has been left in a dead letter box in the precincts of the Supreme Court across Parliament square.
Clause 18 is not a proper sovereignty clause, when it could have been what was promised in our manifesto. Last night the Minister for Europe said that the Bill
“delivers on what was in the coalition programme simply as an agreement to consider the case for a sovereignty Bill”,
and that the Bill—that is, a sovereignty Bill—
“is being introduced by the means of clause 18”.
I am bound to say that it is not that at all. It is even dangerous.
Thomas Docherty
As the hon. Gentleman says, this is a mouse of a Bill. Does he agree that what we need is genuine reform of the European Union so that it delivers what it should be concentrating on, and that sovereignty should remain in Parliament and not be passed across to shyster lawyers arguing the case in the Supreme Court?
Mr Cash
I strongly agree with that sentiment. Indeed, I go further and say that I have always argued for an association of nation states based primarily on trading and political co-operation. Above all else, we must ensure that we make those decisions in the House on behalf of the electorate. Where we find it impossible to make those decisions, it is increasingly argued that it should be done by referendum, when we abdicate the power in the House to the people as a whole.
Clause 18 defies the sovereignty clauses on which the shadow Cabinet, the Whips and Back Benchers voted on several occasions before the general election, using my “notwithstanding” formula. Our report, based on clear evidence from constitutional experts, upholds both the principle and the wording of the “notwithstanding” formula, which I proposed in amendments to the Legislative and Regulatory Reform Bill when we were in opposition. The Whips even asked me to put in their own tellers. As I said to the Minister for Europe last night, he too voted for those provisions. Why not now, therefore, and in the Bill?
We have no hope of resolving the effect and implications of the European crisis on our country, or of reducing by deregulation the impact of European laws on our businesses, including our small businesses, and our deficit, if we do not remove the overall burden of the 50% of economic regulation now on our own statute book, according the House of Commons Library on 13 October.
Mr Jenkin
Is not the real question, which those on the Government Front Bench must answer, why they will not put a declaratory clause, notwithstanding the European Communities Act, into the Bill. Are they saying that that itself would put us in breach of the European treaties? I submit that it would not. Should not they accept that by putting a “notwithstanding” clause into clause 18, they would, notwithstanding the European Communities Act, be reaffirming the supremacy of the House, which is long overdue?
Mr Cash
I agree, and the evidence that we received indicates that the courts would have to accept that..
We are a parliamentary democracy, not a judicial autocracy. The common law principle, wrongly asserted as the basis for parliamentary sovereignty by the Government in their explanatory notes, gives the courts the interpretative means to walk through the gateway of our constitutional law into their application of EU law, including even the assertions of the European Court of Justice over our own Parliament and our own constitution, as well as our own laws.
Our report repudiates the means whereby the courts could gain, and some of them want to be the ultimate authority in the land. We were against Lisbon and for a referendum as a party. We can veto any treaty in future if we wish to do so, so why not do so? The Bill makes no provision for our current predicament, and provides only relative safeguards for the future, subject to the baleful influence of a Minister’s decision as to whether a referendum would be required or not. One issue has been described by our witnesses as both dangerous and unnecessary, namely clause 18 in the context of the Bill as a whole.
This debate is about trust—the trust that the British people for centuries have granted to their elected representatives to do what is right by them and uphold the democracy for which people fought and died. The Bill betrays that trust by doing nothing to unwind the effects of failed European integration and its impact on us, and does little or nothing to provide security for the future as Europe flounders around in ever-decreasing circles and chaos.
The Bill is an opportunity missed to stop the acquiescence in the failed European integration at every turn, as I put it to the Prime Minister a few days ago. It is also a missed opportunity to reaffirm our parliamentary sovereignty with a proper sovereignty clause. The Bill is a missed opportunity and I shall not vote for it.
Mr James Clappison (Hertsmere) (Con)
It is a great pleasure to follow the hon. Member for Luton North (Kelvin Hopkins). The sentiments that he expressed—a feeling of disconnection with the European Union, concerns about its lack of accountability, and even a feeling of crisis in the European Union—are ones that we have heard throughout this debate. That is not something that has been invented by parts of my party or got up by the press; it is a deep-seated feeling across parties and among voters of all parties.
To be fair to those of my party on the Front Bench, they tried to respond to that in the general election. It was no doubt with concern about Europe in mind that they made the following promise, which they were right to make, in the manifesto, on which I was proud to stand, just as every other Member of my party did:
“We will be positive members of the European Union but we are clear that there should be no further extension of the EU’s power over the UK without the British people’s consent…We will work to bring back key powers over legal rights, criminal justice and social and employment legislation to the UK.”
That was described in the Conservative manifesto as a liberal Conservative policy, and it is indeed in accordance with the tenets of classical liberalism. However, since then we have actually had a Liberal-Conservative policy.
I understand that, and I understand the reasons why it has come about. However, I am sure that my right hon. and hon. Friends will understand when I say to them that although I appreciate the fact of the coalition and the way in which it is working, I still hold to what was said in the manifesto, which I supported, and that I wish to accomplish the ends of that manifesto, particularly in respect of not allowing the extension of any further power to the EU, as well as repatriating existing powers—I thought that that would be a tall order, but it was worth trying. It is certainly still in order to seek to prevent any further extension of EU power. However, I am afraid that the Bill as it stands does not fully accomplish that end, and my hon. Friends would be testing my credulity if they claimed that it did.
Indeed, clause 18 does not even seek to do that. This is a matter of academic debate, but clause 18 is a restatement of the existing position—there are different academic views on that—and it certainly does not set out to stop any further transfer of power to the European Union. Nor, I would suggest, do the other parts of the Bill fully accomplish the end of preventing a transfer of power to the European Union, however many referendum locks they contain, particularly in so far as they concern transfers of any further competences to the European Union. If one studies the list of competences that are already possessed by the European Union, as set out in the treaty of Lisbon, one can see that virtually every field of policy—indeed, every type of human activity—is covered by a competence of one type or another. Even where those competences do not give the European Union a law-making power—and in many cases they do—the European Union can still use the competences that it holds in other fields to make law and policy in those fields where it does not have a formal competence, and the European Commission, backed up by the European Court, has not been slow to do that.
The problem that we are faced with is that which the hon. Member for Vauxhall (Kate Hoey) described earlier: the drip, drip, drip of power to the European Union, through European directives, European regulations, all the soft law that comes from the European Union, and the new objectives that are set for the European Union, which influence policy makers. All that goes on as before. As far as the European Union is concerned, it is just business as usual. Those are the problems that we need to address, and although it is difficult to take them on, I would urge Ministers to do so.
Already in the lifetime of this Government we have seen transfers of power to the European Union that—I think I am right in saying—would not have been captured by the Bill’s referendum provisions. Most people would understand a transfer of power in any ordinary sense to include giving the European Union power to set policy, or giving the European Commission the power to take initiatives or, most particularly, to make law. I am thinking in particular of the advent of the External Action Service, which has attracted so much bad publicity in this country. However, the External Action Service is bad for this country not just because it is extravagant—although it clearly is—but because it will act in such a way as to supplant British power and the exercise of independent British representations. I suspect that this is something that we will see more and more of in times to come.
We have also seen the Van Rompuy report on economic governance, which most people would see as a prospective transfer of power, in any ordinary sense of the word, to the European Union, framing, as it does, the criteria by which our economic policies are made and the guidelines that Governments must observe in their fiscal policies. The report also gives the European Union the power to impose sanctions on this country, in the form of placing it under certain procedures—not financial sanctions, but sanctions of other forms, which could be influential with policy makers. The report is certainly intended by the European Union to be an instrument of economic governance over this country, even though it is not a member of the eurozone.
We have also seen a significant transfer of power into the European so-called area of freedom, security and justice, caused by opting in to directives of the European Union in that area, even though this country had an opt-out from those policies—something that the previous Government said was the key difference between the constitutional treaty and the treaty of Lisbon. Now we are seeking to opt in. We have already opted in to six directives—two are very significant directives indeed—that give the European Union legislative authority over this country and, more importantly, give the European Court of Justice jurisdiction over our criminal procedure and criminal law. Those are all matters that are not covered by the Bill as it stands.
Mr Clappison
I am afraid that my hon. Friend is correct. We are deepening and extending the jurisdiction of the European Court of Justice.
What to do about all this? There is one improvement that can be made to the Bill—an improvement that I put to my right hon. Friend the Foreign Secretary. It would be a great improvement on the Bill, and would be in keeping with what we have been saying about parliamentary democracy, if we made the exercise of the opt-ins subject to a vote in this House—something that does not take place at the moment, however heroic and detailed our efforts at European scrutiny are, as we cannot cause this House of Commons to have a vote on something of that nature. That would be easy for Ministers to agree to, and I cannot think of a good reason against it. My right hon. Friend said, “Well, there might be too many of these things,” which rather bears out the point that my hon. Friend the Member for Stone (Mr Cash) just made about the extent of the penetration of the European Union’s jurisdiction. However, the fact that things might take up too much of the House’s time is not a sufficient reason not to have a vote—perish the thought!—on such matters. I remind my right hon. and hon. Friends that we specifically promised in our manifesto to allow Parliament more time to scrutinise legislation. My proposal would be in keeping with that, which would be a good thing.
It would also be appropriate for Ministers to consider amendments to the provisions dealing with the question of significance, because at the moment, whether we have a referendum under the circumstances detailed in the Bill depends on whether Ministers think they are significant enough. What a thing! Ministers are to decide whether something is significant enough, and the explanatory notes to the Bill then tell us that anyone who is aggrieved by such a decision should go off to the courts to seek a judicial review. What on earth is Parliament for? Are we not allowed to hold Ministers to account as well? Are we now going to have to subcontract that to the courts?
The Minister for Europe (Mr David Lidington)
I think that the brevity of the speech by the Labour spokesman, the hon. Member for Caerphilly (Mr David), is indicative of the absence of content in the Opposition’s case today. We have heard from no less than the Leader of the Opposition that he regards his policies as a blank sheet of paper, and that is what we have heard from the hon. Gentleman this evening.
Like the hon. Gentleman, I want to pay tribute to every right hon. and hon. Member who has taken part in the debate, and I am glad that so many Members, on both sides of the House, have managed to participate. I want to respond briefly to a number of specific issues, and then move on to the questions about clause 18 and the referendum lock, which have occupied most of the debate. I might be unable to cover all the ground today, but I will look forward with relish to the five days of debate on the Bill on the Floor of the House—in Committee of the whole House and on Third Reading—in the new year.
My hon. Friends the Members for Harwich and North Essex (Mr Jenkin) and for Daventry (Chris Heaton-Harris) asked about the commencement of the Bill and whether it would take effect in the lifetime of this Parliament. As they know, the Government have made it clear, as a policy commitment, that we are not going to agree to any treaty change or new treaty that transfers additional powers or competences to the European Union for the duration of this Parliament. That is a policy commitment. Clause 21 provides for the commencement of the whole of part 3, including clause 18, on Royal Assent. The rest of the Bill comes
“into force on such day as the Secretary of State may…appoint.”
To avoid any misunderstanding, however, I want to make it clear that the Government intend to use the provisions of the Bill for any future treaty change. The House will know that one such change is being contemplated now. We also expect to use the provisions on increased parliamentary control during the lifetime of the Parliament, because we expect that there will be some proposals, possibly including an agreement on a new multi-annual financial framework, that will trigger the need for an Act of Parliament under the terms of the Bill.
My hon. Friend the Member for Daventry also asked me whether it would be possible for a European prosecutor to be built up bit by bit, thereby avoiding a referendum. The Bill is very clear on that. The United Kingdom could not take part in either a European public prosecutor established under article 86.1 of the treaty or the extension of the powers of such a prosecutor, if set up, under article 86.4 without a referendum. As the treaty provides a specific treaty base for the establishment of a European public prosecutor, that action could not be taken on a different treaty base.
My hon. Friend the Member for Witham (Priti Patel) asked whether there would be any way for the European Union to prevent us from holding a referendum in this country. The answer to that question is no. There is nothing in the treaties that puts any constraints on the way in which the United Kingdom or any other member state decides how to cast its vote on a treaty amendment or a treaty change. The Bill sets out more stringent requirements before a British Minister can assent to something on behalf of this country at the European level. That is a matter for national law, not for European law.
Let me turn to the points made in particular by my hon. Friend the Member for Stone (Mr Cash), but also by a number of other hon. Ladies and Gentlemen, about clause 18. I want to be absolutely plain that the Government are not attempting through clause 18 to address the wider constitutional issue of the sovereignty of Parliament in the way alluded to by my hon. Friend the Member for Esher and Walton (Mr Raab) when he referred to the European convention on human rights and the Human Rights Act 1998, for example—or the sovereignty of Parliament and what that means in the context of the devolution settlements for Scotland, Wales and Northern Ireland.
What clause 18 does is more specific than that—this point was referred to by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). Clause 18 deals with the way in which European law, including judgments of the European Court of Justice, is given effect in this country. The clause asserts, for the first time in statutory form, what is already the position in common law as a consequence of decisions by various judges in leading cases: that there is only one reason why European law has effect in this country, and one reason too why, where the two clash, European law is given primacy over United Kingdom law, and that is because Acts of Parliament—notably, but not exclusively, the European Communities Act 1972—provide for such effect to be given to European law.
Mr Cash
Does my hon. Friend agree that the very fact that this provision is being included in statute inevitably means that the courts will have the opportunity to apply the common law principle and that therefore he cannot, by a speech in the House of Commons, restrict the manner in which the courts subsequently interpret the provision?
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.