North Africa and the Middle East

Bernard Jenkin Excerpts

Thursday 17th March 2011 Commons Chamber

[Mr Hague]

The situation described by my right hon. and learned Friend would indeed be intolerable. That is why the proper enforcement and policing of the arms embargo is an important and legitimate subject for the resolution. However, I do not want to leave my right hon. and learned Friend in any doubt about what the Security Council intended by the arms embargo in resolution 1970. It was clearly intended to apply to the whole of Libya. Any change would have to be embodied in a further resolution: that is the legal position, as understood by the Security Council and all its permanent members. The solution, or attempt at a solution, that is most likely to be agreed by the Security Council is a thorough and full enforcement and policing of the arms embargo, rather than amendments to an embargo that was agreed nearly three weeks ago.

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

Will my right hon. Friend give way?

[Mr Hague]

No, I will not give way any more. I must be fair to the rest of the House.

The draft resolution that is being discussed today includes demands for an immediate ceasefire, a complete end to violence, and a ban on all flights in Libyan airspace with the exception of humanitarian flights. It authorises all necessary measures to enforce compliance with that ban. It calls for all necessary measures short of an occupation force to protect civilians under threat of attack, including those in Benghazi. It also includes a variety of measures to enforce the arms embargo in Libya, to tighten the assets freeze and travel ban imposed on regime members, and to deny Libyan planes permission to take off from, land in or overfly the territory of UN member states.

There is a range of views in the Security Council on the measures that have been proposed, and the draft resolution already reflects that range of views. We must not pretend that agreement on the proposal, or even on large elements of it, will be easy. However, we are clear about the fact that it is right to seek authority for a combination of measures for the people of Libya, for all those in the region who are campaigning for change, and for Britain’s national security. Negotiations on the proposals are beginning now in New York, and the Government will keep the House and the country informed of developments as they arise. We will do our utmost to ensure the passing of a resolution that places the maximum pressure on the Libyan regime and extends protection to the beleaguered and oppressed civilian population of Libya.

This, then, is our approach to the middle east. It is to be on the side of the legitimate hopes and aspirations of millions of people who seek change and reform; to encourage Europe to act as a magnet for the long-term future for economic openness and political stability and democracy; to champion the cause of the middle east peace process, and to advocate renewed strong international engagement on it; to confront the dangers posed by the nuclear intentions of Iran; to seek, however we can and at all times, to protect British nationals and bring them to safety; to encourage dialogue in very troubled countries such as Bahrain and Yemen; and now—today—to seek international agreement on protection and support for the people of Libya.

[Mr Douglas Alexander (Paisley and Renfrewshire South) (Lab)]

Let me begin by associating myself with the Foreign Secretary’s expression of support for the people of Japan. I have noted all that he has told the House today about the position of United Kingdom nationals. I urge him to continue to monitor this very worrying situation closely, and, of course, to keep the public and the House up to date in the days ahead.

I welcome the debate. It is always important for the House to dedicate time to discussing complex issues such as this, but it is especially significant today. As Members in all parts of the House will be aware, we meet at a time when north Africa and the middle east face a moment of great possibility but also great peril. In the 20th century, our own continent of Europe twice generated conflicts that in turn engulfed the world. Today, the middle east generates many of the most threatening challenges faced by the international community.

The courageous youthful protests and their advocacy of human rights, freedom and democracy, in what has come to be termed the Arab spring, have swept aside old assumptions, and still present an opportunity for the catalysing of fundamental change in the region. Although these popular revolts have been generated within and not beyond the region, I believe that the international community must develop a coherent and strategic response which encompasses countries that have experienced popular revolts in recent weeks and now aspire to be democratic Governments, and other countries in the region with which we have long-standing relations; which maps our response to the security challenges that still confront the region; and which, even at this late hour, responds with urgency to the distinctive circumstances in Libya.

[Mr Jenkin]

Will the right hon. Gentleman give way?

[Mr Alexander]

I am keen to make a little progress, but I shall be happy to take an intervention later.

Peace and security in the middle east remains one of the most important foreign policy objectives of our country. Let me begin by addressing the conflict that has generated grievance across the region for so many decades: the Israel-Palestine conflict. There is today, I believe, fairly broad agreement across the House about the steps that are required for movement from a peace process to a peace agreement. We are broadly united in the view that the entire international community, including our friends and allies in the United States, should now support the 1967 borders with land swaps as the basis for resumed negotiations. The outcome of those negotiations should be two states, with Jerusalem as a future capital of both, and a fair settlement for refugees. My party will stand shoulder to shoulder with the Government if they take the necessary steps to bring others in the region, and beyond, to that point of view. Let me incidentally affirm that the Government’s decision this month to back a United Nations Security Council resolution making clear Britain’s opposition to illicit settlement building by Israel was the right decision, despite the veto exercised by the United States.

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[Martin Horwood]

rose—

[Mr Jenkin]

rose—

[Mr Alexander]

I am happy to give way to the hon. Member for Cheltenham (Martin Horwood).

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[Mr Alexander]

Let me try to turn to the events that are under way at the moment. I am also conscious that I have not given way to the hon. Member for Harwich and North Essex (Mr Jenkin), so let me do so now.

[Mr Jenkin]

Is not the most important issue in this debate the fact that events in Libya appear to be at a turning point? I am sure that the Government are grateful for the support that Her Majesty’s Opposition have given to my right hon. Friend the Prime Minister and my right hon. Friend the Foreign Secretary on the no-fly zone initiative and the toppling of Gaddafi. Is this not, if it fails, a crucial test of the credibility of British foreign policy, which has perhaps not adapted to the shortage of defence capability we now suffer as a result of the strategic defence and security review or to the fact that we have a completely different kind of United States, which is prepared to be passive in an international crisis?

[Mr Alexander]

The hon. Gentleman is continuing the newly established tradition of making a number of points. Let me try to address them. On the substantive point of whether the hugely significant events we are witnessing in north Africa make the case for reopening the strategic defence review, I find myself in sympathy with him. Serious questions are prompted by the fact that we have aircraft carriers without planes, given the context of the discussions we are now having in this House.

The hon. Gentleman’s second point is important and I shall reflect on it in my remaining remarks. This is an issue not simply for the people of Libya or for the west, but for the broader interests of the international community. It appears from what we have heard that the decision was taken by the Saudi Arabian Government and the Gulf Co-operation Council to provide troops and tanks to the people of Bahrain without consultation with the United States. To me, that would have been inconceivable only a few weeks ago. It is one of the further assumptions that have been directly challenged by the huge events that we are witnessing across the region. I think, therefore, as I sought to reflect at the beginning of my speech, that this is a time of great possibility and also of great peril. If, however inadvertently, the message is heard by dictators and despots not just in the region but in the wider world that the words spoken by prominent international leaders are not matched by actions, that will be a worrying development with consequences far beyond the borders of Libya.

European Union (Amendment) Act 2008

Bernard Jenkin Excerpts

Wednesday 16th March 2011 Commons Chamber

[Mr Lidington]

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

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

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

[Mr Lidington]

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

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

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[Mr Lidington]

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

[Mr Jenkin]

Will my right hon. Friend allow me?

[Mr Lidington]

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

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

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

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

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

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

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

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[Mr David]

It is for other European Union member states to decide whether they wish to be part of the eurozone, and there is no doubting their commitment to it.

When the dust had settled after the fraught days in May 2010, moves were made to establish a more permanent stabilisation mechanism, facilitated by a treaty change to provide a stronger legal base. That mechanism will come into force after 2013 and will replace the EFSM and the EFSF.

I find the procedure before us rather strange, to say the least. When or if the European Union Bill, which is currently in the other place, reaches the statute book, there will be a change to the relevant constitutional procedure, as the Minister explained, and the procedure that we are using this evening will no longer apply. Instead, we will have what is essentially a post-decision procedure. Treaty changes will require a statement to be laid before Parliament on whether the decision falls within clause 4 of that Bill. I understand that the treaty change to establish the European stabilisation mechanism would not fall within clause 4, so would not trigger a referendum. However, it would require an Act of Parliament. The Government have said on at least three occasions, and have confirmed this evening, that they would seek the support of the House, using the procedures of the European Union Bill, by introducing primary legislation. As the Financial Secretary to the Treasury said:

“The mechanism is not a transfer of power from Westminster to Brussels, so it does not require a referendum, but it will require primary legislation, which will be introduced in due course.”—[Official Report, European Committee B, 1 February 2011; c. 12.]

Given that commitment, I wondered why the Government were putting forward this motion at this time. The reason, of course, lies in section 6 of the European Union (Amendment) Act 2008, which requires that when a decision 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 of Parliament without amendment. That must happen before the Prime Minister can give his agreement to the adoption of a draft decision at the European Council. In other words, for the Prime Minister to be able to give Britain’s support to this draft proposal at the European Council meeting at the end of next week, it is necessary to secure the approval of Parliament.

I want to make a point about procedure. I welcome what the Minister said earlier on this matter, and I hope that the Prime Minister will adhere to that if there is even the smallest change to the proposed amendment. I hope that that is truly a cast-iron commitment.

[Mr Jenkin]

Is the hon. Gentleman saying that the European Union Bill will set aside the procedure set out in the 2008 Act, and that there will no longer be a requirement to bring draft Council decisions before this House before they are made? I think that he should invite the Minister to intervene on him to clarify whether that is the case.

[Mr David]

I would indeed welcome clarification on that subject. Indeed, I intervened on the Minister earlier and received no clarification. It is my understanding that the new procedure will supersede the procedure that we are using this evening, and that the procedure will be post-decision rather than pre-decision. I invite the Minister to clarify that.

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

I intend to speak very briefly. First, let me thank my right hon. Friend the Minister for clarifying the procedural issues. I wrote in a note to colleagues that I understood that this would be the last occasion on which we could scrutinise the process before ratification. I now understand that that is not correct, although certainly the decision will be set in stone, and we shall not have an opportunity to change it unless we vote down the Act of Parliament that will be implemented. However, I should like one further clarification.

I understood that whatever amendment was made to the text of the treaties would require an Act of Parliament, regardless of whether the European Union Bill was passed, because that is the way in which we have always implemented treaty changes. To that extent, the EU Bill means no change. It would be a shame if we lost the opportunity to discuss matters before they go to the Council, but I accept the point made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) that it is up to the European Scrutiny Committee to bring them before the House.

In the few minutes for which I intend to speak, I shall concentrate on what was said by my hon. Friend the Member for Stone (Mr Cash) and by the right hon. Member for Rotherham (Mr MacShane). The Government should be worried when there is agreement between those two Members. On this occasion, they agree that momentous events are afoot. My hon. Friend seemed to be saying, in so many words, that while we had always opposed the formation of a federal Europe which would inevitably be dominated by Europe’s major economic superpower—Germany—we were now facilitating the creation of a federal Europe, at least within the eurozone.

The text that we are approving states:

“Member States whose currency is the euro may establish a stability mechanism to be activated”,

and so forth, but there is no explicit exclusion of countries that are not participating in the euro in terms of its effects. What exactly is a mechanism? We have in mind some kind of bail-out fund, but the annex to the Council conclusions that were produced in December contains a draft decision that refers in more detail to what this instrument might actually concern. It states:

“The ESM will complement the new framework of reinforced economic governance, aiming at an effective and rigorous economic surveillance, which will focus on prevention and will substantially reduce the probability of a crisis arising in the future.”

All that sounds extremely beneficial and positive, but, as we know, the problem is that although specific sanctions do not apply to non-euro state, there is no exclusion of economic governance over all member states. Everything that the EU does implies that one day all its members will be members of the euro. That is clearly the direction in which it wants things to travel.

[Mark Reckless]

Is my hon. Friend aware that the issue is clarified by the decision made on 11 March on the pact for the euro? Annex I contains four guidelines. Guideline (b) refers to “Participating Member States” and guideline (d) to “Euro area Member States”. Guideline (c) states that we must consult our partners

“on each major economic reform having potential spill-over effects”,

and that that applies to “Member States”, but it makes no reference to the euro or to participating. It does involve us.

[Mr Jenkin]

I am grateful to my hon. Friend for pointing that out. It underlines the fact that we are at a crucial crossroads in the development of the European Union and our relationship with our European partners.

A few months ago I attended a private discussion, and those present included some very senior recently retired Government figures. One of them said—Chatham House rule, I am afraid—“You must be very pleased, Bernard, that the new Government are going to consider all this, because obviously there will be a consolidation of the eurozone area, and Britain will have to establish a different relationship with the European Union because we will remain outside it.” I said, “Well, I’d love to think the incoming Government have thought about all these things, but it seems that their minds are closed. I don’t think they want to think about this at all.” The result is that events are sweeping us along. We are not setting the agenda. The agenda is being set for us, and we are not even looking ahead at the consequences of what we are agreeing to.

That could have profound consequences for the future of our relationship with the EU. Indeed, I would say that it brings forward the inevitability of the United Kingdom finishing up having to make a dramatic in-or-out decision. If the Government have a lever in their hands but are still unwilling to exercise leverage to start drawing the distinction between those who want to consolidate the euro area and those who want to remain outside it, we do not have a European policy worth the name. We will therefore be driven into deciding on this binary question of whether we stay in or get out—and I hear that the Labour party may be beginning to flirt with the idea of holding the referendum that it denied the British people when it was in office.

We should consider the vote achieved by the UK Independence party at the recent by-election, as there has been a constant upward trend in every by-election since 1997. If we do not recognise that a part of the despair with politics that we experience in our daily contact with our constituents is a result of our powerlessness, and of our denial of the real choices and issues facing this country, we will drive those who feel such despair into the hands of more extreme parties than the mainstream ones where we all wish to be.

I leave the following thought with my right hon. Friend the Minister. As this Parliament progresses, this debate will not subside or go away. Instead, it will become more intense, particularly as the economic realities of the euro are based on denial. It is rather like the denial that there was for a period in respect of the European exchange rate mechanism before it broke up. However, because it is so much harder to break up the euro, the denial will go on for longer and the pain inflicted will be much more intense. There will be riots in the streets of European capitals before this situation is resolved, because I do not think it is possible for countries to make the kind of adjustment that the euro is currently imposing on them without the flexibility of separate currencies, which is why it is an accepted fact among many economists that at least some of the southern European states will leave the euro before this crisis is out.

Several Hon. Members: rose—Order

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Three speakers wish to contribute, and there are eight minutes to go. I call Steve Baker.

Libya and the Middle East

Bernard Jenkin Excerpts

Monday 7th March 2011 Commons Chamber

[Mr Hague]

There is a range of options to be considered, and the hon. Lady draws attention to how many different ways one can look at the issue. Those different options need to be examined. NATO Defence Ministers will be able to discuss the matter later in the week, so I cannot give a specific answer now to her question. All those considerations will be taken into account.

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

May I urge my right hon. Friend to take credit for the operations that go right, as well as responsibility for the operations that go wrong? May I remind him of the aftermath of the first Gulf war, when the fatal error was to allow Saddam Hussein to fly his helicopters to oppress his own people again? The Government are right to lead the debate about a no-fly zone, which is gaining support among voices in the United States, as well as from France.

[Mr Hague]

Yes, I take the point that my hon. Friend makes and I am grateful for his support for the position that we have taken on contingency planning. On the question of taking credit for what goes right as well as blame for what goes wrong, having in the past led the Conservative party for four years, I have never heard of that notion before.

European Union Bill

Bernard Jenkin Excerpts

Wednesday 26th January 2011 Commons Chamber

[Mr Clappison]

My humble amendment 14 proposes only that the House should have a vote on such matters. The hon. Gentleman implied yesterday that he agreed with that. I will turn in more detail to my amendment in a moment, but to dispose of his point, I have been told so many times in the House when we have made a concession to the EU, or agreed to further integration, the granting of competence or additional powers, or changes in its institutional arrangements, “Don’t worry. We are putting safeguards in place.” At the time of Maastricht, that meant the pillar structure. We were then told about subsidiarity, and we now have orange and yellow cards and emergency brakes, but no one has come anywhere near using those devices. We have had subsidiarity for 18 years, and the only time that it was used that I have been told about is in respect of the zoo directive.

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

I remember being told in the early 1990s that enlargement would have a decentralising effect on the EU, and that the increase in the number of net payers to the EU budget would create downward pressure on it. The history of our relationship with the EU is littered with complacent and wishful ministerial assertions on what will happen as a result of Government actions and agreements in the EU. My hon. Friend is absolutely right.

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[Mr Raab]

I thank my hon. Friend for that intervention and I agree entirely with him. We can already see an example of that in the European arrest warrant. We have jumped in and we are now reviewing its domestic implementation and the potential for the international instrument. The presumption of innocence is just one area, as my hon. Friend has suggested, where we have a fundamental difference of legal cultures. I do not think that either party should show that any disrespect.

Brussels certainly has ambitions in that area and with those ambitions in mind I want to point out that there are disappointingly few decisions on JHA policy in the Bill for which, although there is no referendum requirement, parliamentary approval is required before the Government take a decision to opt in. For example, as I understand it the decision to opt into the European investigation order would not have required Parliament’s approval under the Bill despite its ramifications for operational policing and the lack of safeguards for innocent British citizens. Immigration and asylum policy is also left out despite the fact that the EU is currently proposing far-reaching changes in that very important area.

I would be the first to accept that the British people cannot have a referendum on every item of JHA policy, but why cannot their elected representatives have a say on every opt-in to ensure proper democratic scrutiny? I am very encouraged by the Minister’s written statement, which I have looked at closely and which effectively endorsed the principle of a parliamentary vote on JHA opt-ins. That is an important step forward and, as other Members have made clear, it is extremely welcome. As the statement made clear, such a provision would depend first on the discretion of the European Scrutiny Committee and its Chair to call a debate and table a motion. That is fine with the current Committee and Chair, but—if we can possibly imagine this—if it were one day to have a less meticulous Chair or more integrationist members, that check might be diluted. Secondly, the provision would depend on the discretion of Ministers about whether to make Government time available.

It would strengthen the Bill considerably if the arrangements to which the Minister agrees in principle could be spelt out in practice in legislation. I know many Members would welcome such a step.

There is an even more important issue to consider than the individual opt-ins. Britain has to decide by June 2014 whether to accept European Court of Justice jurisdiction over police and justice measures that predate the Lisbon treaty or, alternatively, to opt out altogether. After that date, the full body of pre-Lisbon legislation will come under the control of the Luxembourg Court, so this decision has enormous constitutional implications for our criminal justice system. It represents a unique opportunity for this country either to regain control of our justice agenda or, if we so decide—let us not rule out this option—fully to embrace a pan-European model. I am clear in my own mind that we should preserve our distinct justice system which is famous the world over. It guarantees our personal freedoms and defines the British sense of fair play.

Beyond the technical niceties of the Bill, something bigger is at stake—from habeas corpus to the presumption of innocence, which my hon. Friend the Member for Enfield North (Nick de Bois) mentioned, or to free speech, which is poorly protected in France and seems to be disappearing in Hungary but is still cherished in Britain. These abstract legal concepts define our citizenship, our identity, our culture and ultimately our way of life. I respect the fact that others may disagree on this; some may wish to argue the merits of the Napoleonic legacy or the pros and cons of the continental civil law tradition, while others may claim that a pan-European amalgam might just get the best of both worlds. That is fair enough, and those are perfectly respectable positions, but what is not acceptable is for that kind of decision on a matter of that kind of magnitude to be quietly nodded through without the formal debate and approval of the House. I welcome the policy commitment in last week’s written ministerial statement, but we need a commitment that the decision to opt in en bloc will be subject to parliamentary approval and not just a debate, and it would be relatively easy to do that in the Bill.

To conclude, I support the aims of the Bill and much of its content. It has the potential, at least, to transform the country’s relationship with Europe and to restore some transparency and legitimacy to the much-shrouded decision making in Brussels.

[Mr Jenkin]

In the next group of amendments we will discuss this same topic in relation to a possible Act of Parliament or referendum. Will my hon. Friend reflect on the fact that it would be inconceivable that a Government could implement such a dramatic change to our legal system and our legal culture without a substantial Act, or several Acts, of Parliament? Is a resolution of the House enough to govern this Executive act—this stroke of the pen—by a Minister at a meeting of the Council of Ministers?

[Mr Raab]

I thank my hon. Friend for that intervention; his point is well made. Obviously, if we decided to opt in, legislation would be inevitable, but the question is whether or not we should opt in. That principle should be subject not only to legislative scrutiny but to a debate and a vote.

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[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 Jenkin]

Except the BBC.

[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.

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[The Chairman of Ways and Means (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Amendment 82, page 8, line 16, at end add—

‘(6A) A Minister of the Crown may not make a formal decision as to whether to exercise the right of the United Kingdom to make a notification to the Council under the terms of article 10(4) of the Protocol (No 36) on Transitional Provisions annexed to TEU and TFEU, unless—

(a) the decision is approved by Act of Parliament, and

(b) the referendum condition is met.

(6B) The referendum condition is that set out in section 3(2).’.

Amendment 83, page 8, line 16, at end add—

‘(6C) A Minister of the Crown may not make a formal decision as to whether to exercise the right of the United Kingdom to make a notification to the Council under the terms of article 10(4) of the Protocol (No 36) on Transitional Provisions annexed to TEU and TFEU, unless the decision is approved by Act of Parliament.’.

Amendment 84, page 8, line 16, at end add—

‘(6D) A Minister of the Crown may not give a notification under Article 10(5) of Protocol (No 36) on Transitional Provisions annexed to TEU and TFEU that the United Kingdom wishes to participate in an Act that has ceased to apply to it pursuant to Article 10(4) of that Protocol, unless the notification in respect of the Act has been approved by Act of Parliament.’.

[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.

[Martin Horwood]

In the spirit of coalition, which the hon. Gentleman so obviously and positively espouses, does he accept that the Liberal Democrats have moved quite a long way in accepting this Bill at all and that many of the strictures it puts on the progress of proper government at European level are things that do not come particularly naturally to Liberal Democrat Members?

[Mr Jenkin]

I am perfectly prepared to accept that some Liberal Democrats have compromised considerably on the Bill.

What does the Bill add up to? The problem is that it does not change anything. It does not change the relationship between the European Union and the United Kingdom one comma or dot. It is about the arrangements between the British Government and the British Parliament. We all know that it is designed to give the impression that this and future Governments will somehow be locked down by the referendum lock and will be obliged to have referendums as never before. It is certainly useful to create that expectation because the disappointment when no referendum occurs will then be much deeper, but what does the Bill actually mean?

Clauses 2 to 7 make a lot of legal arrangements to ensure that decisions taken by the Government are approved by referendum or Act of Parliament. There are certain exclusions that we have already argued about, such as whether the treaty on fiscal union will somehow be exempted from referendum even though it is probably one of the most significant European treaties we will see in our lifetimes. That is the state of the Bill, which has some remarkable tripwires—so many that the Opposition spokesman has been saying, “This is getting too particular and detailed; we will have to have Acts of Parliament and referendums on all kinds of things that are patently ridiculous.” That is why I think that future Governments will wriggle out of the obligations without much difficulty.

My amendments concern the opting-out proposals. In order to make the Lisbon treaty, which establishes the European Union’s authority over criminal and civil law, more palatable, there was an arrangement that the United Kingdom could opt out at a later date. One would have thought that a party and a Government who were elected on a platform to repatriate powers from the EU, and who fought against the Lisbon treaty on the principle that the European Union should not have jurisdiction over our criminal law, would be keen to ensure that any coalition agreement reflected that policy, particularly as they have talked about a sovereignty clause, a referendum lock and so on.

We know that there will probably never be a new treaty amendment that meets the test that triggers a referendum. Indeed, the Minister made it clear that he has no intention of letting a Bill through the House that would trigger such a referendum during the lifetime of this Parliament. The Lisbon treaty has made the EU self-amending. The Liberal Democrat MEP, Andrew Duff, who is chair of the Federal Trust, said on the BBC World Service: “The treaty of Lisbon is in force and it won’t be unpicked by the British. It can’t be. It is the statute which will probably govern the Union for some time.” As I said in the debate on Monday,

“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.—[Official Report, 24 January 2011; Vol. 522, c. 116.]

We do not know whether the next five years will see any changes to the EU treaties—I suspect they will—but there is one area in which the Government will have to make a very significant decision: whether to give more powers to Brussels or to bring them back to Britain. I remind the Committee that were the measure outside the jurisdiction of the European Communities Act, there would be no question but that there would be hundreds of pages of Acts of Parliament to implement this stuff, instead of its automatic inclusion in our law and implementation. It is fundamentally undemocratic to reorganise our constitution by the stroke of a Minister’s pen in this way.

In crime and policing, EU measures which were passed under the pre-Lisbon third pillar arrangements are in this transitional period. Under the Lisbon treaty, there is a period in which we can opt out en bloc, as the Minister said. These measures include the European arrest warrant and the recognition of the trial of UK citizens in EU countries held in absentia. I have in my passport something about the protection of UK citizens, and here we are, handing over the possibility that UK citizens can be tried in other European jurisdictions without even being there. That is something that we do not do in our own jurisdiction.

The creation of the European public prosecutor will happen under the arrangement. The Government will have a straight choice between expanding the jurisdiction of the European Court of Justice over the British justice system, or opting out of the measure. It is a rare opportunity that we have in the treaty to repatriate power. One would have thought that we would want to do it, but the Bill as it stands does not include any control whatever over that decision. All we have is a personal assurance from the Minister that he will bring it to the House for a decision. That is welcome, but it not the kind of democratic control that is needed.

The Government have just announced the revision of control orders, which will require legislation. That is subject to democratic control. Imagine if the control orders decision was announced by the Government and required no legislation. That is what we are being offered in the Bill.

[Mr David]

The hon. Gentleman is making a logical, coherent argument. The Government’s position on the Bill, as I was led to believe, was that if there were a significant move towards powers being transferred from the UK to the European Union, there should be a referendum. We have referred to a number of cases when there would be small changes, on which there might be a referendum, but he is talking about a very significant change. Does he not think there should be a referendum on that?

[Mr Jenkin]

The hon. Gentleman is right. The Bill is completely inconsistent. Relatively tiny matters covered by the Bill and caught by its provisions will have to come to Parliament and may even have to be the subject of a referendum. But this incredibly significant change to our legal system that is taking place now is exempted from the Bill. It is totally illogical. If there is anything that makes a complete nonsense of the Bill, it is this total exclusion of the 2014 decision.

[Mr Clappison]

My hon. Friend is making an excellent speech and some telling points. Does he agree that the EU is being honest about what it wants to do? It wants, en bloc, to create an area of freedom, security and justice, and to have EU authority over that whole bloc. It is not a question of our Government looking judiciously at the odd measure here or there and whether things will be made better or not. We are confronted with an attempt by the EU to carve out jurisdiction across the piece in the area of freedom, security and justice. That is its stated ambition.

[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.

[Ms Gisela Stuart]

The hon. Gentleman makes a powerful speech and his amendments are sensible. If his colleagues on the Conservative Front Bench do not accept any of them, will it be his view that that will have been entirely due to power brokering with the Lib Dems, or might it just be a frolic of their own?

[Mr Jenkin]

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

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

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

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

[Mr Lidington]

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

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

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

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

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

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

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

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

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

European Union Bill (Programme)(No. 2)

Bernard Jenkin Excerpts

Monday 24th January 2011 Commons Chamber

[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.

--- Later in debate ---

[Charlie Elphicke (Dover) (Con)]

I, too, rise to welcome the fact that the Government have agreed to add a sixth day. The Bill is receiving better consideration than many such Bills, and so it should, because it is an important constitutional Bill.

Notwithstanding that, I have sympathy with my hon. Friend the Member for Wellingborough (Mr Bone), who would like further time to discuss the Bill because of its immense constitutional significance. I personally regret that we will not reach discussion of the ambit of the Parliament Act, because it is right that the House has time to consider what happens in our Parliament, including in another place, and the sort of behaviour that we have witnessed of late, particularly by former members of the Labour Whips Office, who are behaving most disgracefully.

[Mr Jenkin]

Perhaps my hon. Friend is going on to say this, but I would have thought that he would be disappointed that we will not have time to discuss amendments 48, 49, 50 and 51 on holding an in/out referendum, which he champions. Personally, I do not champion it, but does he not regret that we are most unlikely to be able to discuss those amendments?

[Charlie Elphicke]

I agree with my hon. Friend. What will we discuss? A wrecking amendment, tabled by the Labour party, which cheated the nation of a referendum in the past.

European Union Bill

Bernard Jenkin Excerpts

Monday 24th January 2011 Commons Chamber

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

I am listening carefully to my hon. Friend, not least because I put my name to his amendment. If the significance condition was not met, and therefore the Government were not proposing a referendum, do I understand correctly that legislation would still have to be brought to the House? If so, would the House not get an opportunity to give an opinion on whether the significance condition was met in any case? Will he clarify that?

[Mr Clappison]

I am grateful to my hon. Friend for putting his name to my amendment, and it is indeed the case that, whether or not the significance condition is met, there will have to be an Act of Parliament to give approval to what is proposed. However, there would be no requirement for a vote in the House on whether to hold a referendum, and there should be such a requirement in the Bill. I will endeavour to explain how relying on an Act of Parliament would be very inferior. If hon. Members want an illustration, they will see none better than all the vicissitudes of parliamentary process that we are experiencing this afternoon in trying to amend the Bill. For example, if this evening we do not reach the question of whether to hold a referendum on an accession treaty, the matter will fall, and unless it is chosen for debate on Report, again subject to all the vicissitudes of the parliamentary process, it will simply not get considered, even though it is very important. That might also happen in future, and that is why relying simply on amending parliamentary legislation is very inferior to putting a requirement on the face of the Bill.

--- Later in debate ---

[Mr Clappison]

There is that point, but I think that my right hon. Friend would find that it is all subject to the vicissitudes of parliamentary process, and such a reliance is inferior to placing a requirement in the Bill. In future, if the argument were advanced for a referendum, he and I might see a Minister stepping forward to the Dispatch Box and saying, “It is all very well hon. Gentlemen arguing for a referendum. When we had the European Union Bill, it was decided not to make it a requirement for Parliament to have a vote, and to leave it to the Minister alone to decide whether the matter was significant.” To coin a phrase, that would be a killer argument.

[Mr Jenkin]

May I put it to my hon. Friend that if we accept the premise of my right hon. Friend the Member for Charnwood (Mr Dorrell) that there is no point putting the amendment in the Bill because the Act will have to come before Parliament in any case, we might as well ask, “Why are we bothering with the Bill at all?” The whole basis of the Bill is to ensure that the Government’s feet are held to the fire over the definition of the treaty. The whole business of significance is totally malleable. If my right hon. Friend the Member for Charnwood does not understand that we need to treat such matters differently from how we treated them in the past, I honestly expect to see him in the Opposition Lobby on Third Reading.

[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.

--- Later in debate ---

[Charlie Elphicke]

I thank the hon. Gentleman, who is highly knowledgeable and skilled in European matters, for making the point far better than I could. I was about to make it myself. Yes, of course schools, hospitals and the economy matter, but what also matters is our sense of nation and our independence as a member state in the European Union, not as a state in a federation. That is essential, and it is essential that we were not in the euro, for the exact reasons that he set out.

Had we been in the euro, we may well have found ourselves in the predicament that we see across the Irish sea or in southern Europe, given the reckless borrowing that took place over the previous decade, which brought our country to the brink of bankruptcy. I, for one, am glad that we did not join the euro. It is the one thing on which I congratulate the new shadow Chancellor and the former Prime Minister—preventing Tony Blair, when he was Prime Minister, from going into the euro. It was the only spark of light and quality in that Government. I am hard pushed to think of any other.

I return to the Bill, having been led astray by those gentle and generous interventions. I shall begin by focusing on clause 11. My hon. Friend the Member for Hertsmere (Mr Clappison) made a series of powerful points about the primacy of Parliament. His argument was that we cannot trust the Ministers of the day because they have their own agenda. If they do not consider a matter significant, they will certify it as not significant. Some check and balance is needed. There must be a resolution of both Houses of Parliament.

When I first thought about that, I found it attractive, but on reflection my concern is that if the Minister considers a matter not to be significant, he will toddle down to the Whips Office and have a chat to the Parliamentary Secretary to the Treasury. He will say, “Look, chief, this isn’t significant. Let’s just whip this vote through the Commons, whip it through the Lords and push it through.” That is what would happen.

[Mr Jenkin]

Is my hon. Friend seriously suggesting that he would be swayed by his Whips on such a question?

[Charlie Elphicke]

I defer to my hon. Friend. His independence of mind and spirit is well known, and his championship of the cause of our nation in the matter of Maastricht is well recognised and on the record of the House. I would be proud if I were half as strong, resolute and bold as he is. I hope the day will come. It is, as everyone knows, a feature of the working of our political process that there will be heavy pressure in both Houses for a Government to get their agenda through.

--- Later in debate ---

[Kelvin Hopkins]

I am pleased to have the opportunity to speak and I apologise to hon. Members for being unable to be present throughout the debate. I was delayed elsewhere in the House on European business.

I want strongly to support amendment 11, which the hon. Member for Hertsmere (Mr Clappison) tabled and to which I was pleased to add my name. He made a powerful speech, which I want to echo and support.

It has been suggested that we might be governed by committees and that big decisions should be taken by a committee. I do not want a committee to make decisions about what is significant and what is not. Parliament should make those decisions, particularly this House. I am a unicameralist and therefore not so concerned about the other place. I believe that we should make the decisions in this House and be accountable to our voters because they clearly and rightly have strong feelings about the European Union.

I do not wish to be governed by judges, either. I worry about the constant reference to matters going to judicial review. I want the House, not judges, to make the decisions. As judges in the Supreme Court in America die, they are replaced by judges appointed by the President. If several judges die or retire at the same time, and a President of a particular persuasion appoints people in his own image, one has, for a generation or two, a Supreme Court that takes a particular view. Let us suppose that Tony Blair had had such a power. He would not have appointed lawyers with my views, but Euro-enthusiasts to a Supreme Court. For a generation, we would have been bogged down by a Supreme Court dominated by people who took a particular view of Europe.

Lawyers are supposed to be independent and to make balanced judgments, but one lawyer commented to me about the European arrest warrant, “Oh well, it’s part of the European project, so we just say yes.” We should not act in that way. We should consider matters individually, not say, “The euro’s part of the European project, let’s say yes to it”, or, “The CAP’s part of the European project, let’s just nod it through.” We do not do that. Britain has taken a strong position on many things that relate to the European Union, and we should continue in that way.

I agree with my hon. Friend the Member for Llanelli (Nia Griffith) on 90% of politics, but not on Europe. Portraying Britain as the naughty boy or surly youth of Europe, who is always being difficult, is wrong. I think that we are right and they are wrong. We have taken stands on subjects such as the euro, which is now in serious trouble. We are not being anti-Europe. We take a particular view about how economies should be run. I believe that separate currencies are necessary shock absorbers for running economies.

[Mr Jenkin]

The Maastricht treaty was pushed through the House on the basis of our having an opt-out from the euro, and therefore that it would not affect us. Yet, even though we are not in the euro, we are deeply affected by the disaster that that treaty is inflicting on our continent.

[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.

--- Later in debate ---

[Martin Horwood]

That stretches credibility somewhat. The hon. Gentleman has heard in many eloquent speeches from Members on the Government Benches how important the Bill is to our relationship with the European Union and how it offers the possibility of reconnecting the British public with the decision-making processes in the European Union. It is beyond doubt that the Bill will be a significant piece of legislation.

[Mr Jenkin]

The hon. Gentleman asked the Minister why the Bill’s language is about the “transfer” of competences, rather than the “pooling” or “sharing” of competences, which has been the language used previously. I put it him—the Minister might not put it this way—that the notion of “pooling” or “sharing” competences does not fully explain what has been happening over the years and that those are weasel words. A competence “shared” is, in fact, a competence transferred and a competence fully transferred is not even shared. The correct word to use is “transferred” and I give the Minister credit for doing that.

[Martin Horwood]

The hon. Gentleman makes a powerful response on behalf of the Minister, but I would say that “transfer” implies a total handing over, not just a partial one, of some UK sovereign powers, as if the European Union were some kind of imperial entity of which this country is a humble subject. That may be what some Conservative Members fear but, as I hope the Minister will confirm, the reality is that the vast majority of powers and competences in the European Union are not exclusive EU competences, but competences shared with member states or merely competences to support inter-state co-operation. We have only to consider an issue such as the environment and climate change to realise that we cannot really transfer competence over that to the European Union alone, because such an arrangement simply would not work.

[Mr Jenkin]

I am glad that the hon. Gentleman referred to “exclusive” competences. Surely if the EU has gained an exclusive competence, a transfer certainly has taken place. A competence shared with the European Union usually results in European Union legislation. Once the European Union has legislated, it has occupied that policy—that part of the field of legal competence—and the doctrine of the European Court is that the EU cannot give that back; the policy can only then be delegated back to the member state. So “transferred” is a good word to have in the Bill.

[Martin Horwood]

I disagree with the hon. Gentleman’s perspective. He speaks as if the European Union were somewhere else, but we are part of the European Union. Even the hon. Gentleman is a member of the European Union.

[Mr Jenkin]

I certainly am not.

--- Later in debate ---

[Martin Horwood]

That is a good example of how a completely uncontroversial and essentially technical change might nevertheless, if we are not careful, trigger a referendum. Like the hon. Member for Devizes (Claire Perry), I am an enthusiast for referendums in general and voted for one on the Lisbon treaty and for an in/out referendum at the same time, but those are undoubtedly significant changes.

The House of Lords Constitution Committee has noted more recently that there are some risks and costs associated with referendums. We have held just nine referendums since 1973, although only one has been UK-wide. The Committee conducted an in-depth inquiry on referendums in the UK last year, concluding:

“The balance of the evidence that we have heard leads us to the conclusion that there are significant drawbacks to the use of referendums”.

I do not sense any implied rejection of referendums per se, but there are arguments for using them with restraint and ensuring that they are limited to major issues.

Some of the drawbacks cited in the Committee’s report include, first, that referendums can undermine representative democracy—not a point that I necessarily agree with, but one that some Opposition Members have made; secondly, that referendums are costly—unarguably an important point in the current austere environment; thirdly, that voters show little desire to participate in them; fourthly, that referendums tend not to be about the issue in question—very likely with some of the technical issues in this case; fifthly, that referendums fail to deal with complex issues; sixthly, that referendums never “settle” the issue—despite expectations; and seventhly, that referendums are a “conservative device” or a block on progress. As a result, the Lords Committee concludes that referendums should be used on questions only of “fundamental constitutional change”. Some examples given are, rather alarmingly, referendums to abolish the monarchy, to change the electoral system for the House of Commons and to change the UK’s system of currency.

I have to ask the Minister whether including all SRP changes under the referendum lock in the Bill is in keeping with the Lords Committee’s detailed findings on the use of referendums. Given the current “treaty fatigue” throughout the European Union, SRP is highly likely to be the most common form of treaty change for the foreseeable future. It is highly likely also that future treaty changes will be relatively small and targeted affairs designed to tweak existing treaties rather than to rewrite them substantially. Is it not therefore highly likely that the referendum lock in clause 3 will capture highly specific, arguably complex, limited and uncontroversial treaty changes?

Such changes might, nevertheless, be urgent. For example, in 2007 my constituency was badly flooded, as was much of Gloucestershire, and we benefited significantly from European emergency funds. If, during any future emergency in a part of Europe which technically fell outside the fund’s scope, a treaty amendment were technically required, it would surely be uncontroversial and, in fact, very urgent, so would we seriously say to whichever stricken part of Europe was affected, “Fine, we’ll send aid from the European emergency funds, but we’ll just have to hold a referendum on it first”? That would be inconceivable. My example may be hypothetical, but it is not impossible to conceive of equally uncontroversial and desirable things that the referendum proposal might block completely.

Given the conclusions of the Lords Committee’s report on referendums, can the Minister reassure me that the provisions in clauses 3 and 4 will not produce a plethora of complex and costly referendums that exasperate the public, frustrate proper decision making at European level and are highly vulnerable to hijack by questions that are completely different from those on the ballot paper? Does he agree that the most appropriate democratic check on the use of article 48(6) is primary legislation, as it would give Parliament alone, as the representative of the people, the power to ratify those limited, specific and complex treaty changes that are likely to come under the use of that article?

On the complexity of the referendums that the Bill could produce, can the Minister provide the House with some examples of referendum questions that the referendum lock on SRP treaty changes might create? It is quite difficult to conceive of one so significant that it would justify the use of a national referendum. Can the Minister provide the House with an estimate either of the number of referendums that the Bill is likely to produce in the foreseeable future, or, if that means looking too far into the crystal ball, of the number of SRP changes that are currently in discussion at the European Council or expected to be in the near future? Most significantly in these austere times, can he indicate the expected cost of each referendum on current projections?

The Minister will be aware that the purpose of creating the SRP under the Lisbon treaty was to avoid the need for long drawn-out intergovernmental conferences and painful ratification processes in instances where EU member states wished to undertake targeted and limited treaty changes, particularly uncontentious improvements or enhancements to the workings of the EU for the benefit of all member states. I therefore have concerns over the inflexibility of the referendum lock, and what it will mean in practice. Will the Minister reassure me that the threat or fear of losing a referendum on a treaty change will not prevent future Governments from supporting even uncontroversial and popular changes, and changes that are in the UK’s national interest?

I point out to the Committee that on many occasions in the history of the UK’s membership of the European Union, it has been deemed in the UK’s interest to further pool powers and competence in the European Union. The most obvious example, which should be close to Conservative hearts, is the Single European Act, which was a massive shift away from unanimity voting and towards dropping national vetoes. The European Union was able to dramatically accelerate integration across the internal market—the basic economic rationale that I thought was shared across the coalition Benches. The forward-thinking move to pool and share powers and competence has been of huge economic benefit to the UK and the European Union as a whole. Can the Minister not think of potential instances in the future when further pooling of powers and sovereignty would be dramatically to the UK’s benefit?

In the light of the time and the desire for other Members to take part, I will cut short my planned remarks. In asking the Minister to consider amendments 67 and 68, I suggest that there is a risk of the Bill triggering, on a hair trigger, referendums on every conceivable issue. Liberal Democrat Members, who perhaps do not share some of the fears of those on the Conservative Benches, need considerable reassurance on that issue.

[Mr Jenkin]

I am most grateful to be speaking under your chairmanship, Mr Brady. I will endeavour to be briefer than some hon. Members have been this afternoon.

We are discussing the trigger for a referendum in the Bill. It is worth pointing out the undercurrent in this debate: some people are speaking because they do not think that there have been enough referendums and others are speaking because they do not want referendums. The official Opposition have got into a bit of trouble with their amendment. My right hon. Friend the Member for Charnwood (Mr Dorrell) had some fun at their expense, because they tried to present a set of amendments as pro-referendum when their record on referendums is rather lamentable—perhaps as lamentable as ours when we have been in government.

[Mr Spellar]

rose—

[Mr Jenkin]

I will not give way, because my point was not designed to provoke the Opposition and I want to press on. The Opposition’s inability to answer the question of how the proposals would help to get a referendum meant that they fell into the trap that was set for them by my right hon. Friend the Member for Charnwood.

[Mr Dorrell]

Did not the Opposition spokesman’s responses give the game away that Labour is unwilling and resistant to the idea of promoting referendums in the context of the Bill? The purpose of both coalition parties is to open the door to consulting the people on the decisions envisaged in the Bill.

[Mr Jenkin]

I agree totally, but perhaps my right hon. Friend was a little unwise to draw more attention to himself. Perhaps he will speak later and give way generously, as the Opposition spokesman did to him. I have a few points to put to him about how enthusiastic he is about a referendum, given that he voted against the referendum on the Maastricht treaty and at that stage even opposed the principle of a referendum on the single currency. Who would take that position today?

[Mr Dorrell]

Given that it is unlikely that I shall have the opportunity to address the Committee and respond to all my hon. Friend’s questions, perhaps we shall have to defer that pleasure for another day. However, I invite him to consider the benefits of a sinner who repents.

[Mr Jenkin]

I am all for that. I remember my noble Friend, the former Member for North Shropshire, Lord Biffen—he who had whipped through and proposed the guillotine on the Single European Act—starting his speech in a debate on the Maastricht treaty by exclaiming that we all have blood on our hands. The important theme to draw from this debate is that there is unanimity about the democratic deficit at the heart of the whole process of European integration. The people have not been involved or consulted enough.

My hon. Friend the Member for Grantham and Stamford (Nick Boles) extolled the virtues of the Bill as the “Thus far and no further” Bill and the great victory for my hon. Friend the Member for Stone (Mr Cash), who has campaigned on the matter for so many years—the Bill Cash memorial Bill. My hon. Friend seemed to be saying that the Bill would succeed in stopping the process of European integration in its tracks, even though the much-quoted Martin Howe, QC, has said that although the Bill might fix our place on the escalator, it does not stop the escalator going up.

--- Later in debate ---

[Mr Cash]

Amendment 1 would deal with the exemption condition, which in turn would deal with that mission creep, the accession issue and the question of mixed treaties.

[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 Dorrell]

My hon. Friend asserted once or twice from a sedentary position during the debate that it had strayed quite widely in the context of the amendments. It is not clear to me how the French Prime Minister’s proposal for a treaty for fiscal union falls within the scope of the amendments that we are discussing.

[Mr Jenkin]

Amendment 1 would remove wriggle room for any Government by requiring a referendum on any new treaty. That was promised at the Conservative party conference, but it is not being delivered in the Bill.

I reiterate that if we want to protect ourselves from the consequences of the inclusion of fiscal union in the arrangements for the European Union, we need to separate ourselves considerably from all the other paraphernalia in which we are currently embroiled. Even the Liberal Democrats are beginning to talk about repatriation of powers on some labour market regulations, such as the working time directive. Incidentally, we were told that we had opted out of that, but it turned out that we had not—something else that we were right about when we debated the Maastricht treaty.

If we allow fiscal union to go ahead, it is inconceivable that it will not have an impact on taxation throughout the European Union. Taxation is already a shared competence. It is not difficult for the European Court of Justice to argue that, as tax union takes place in the euro area, in order to maintain a single marketplace and a level playing field—and all the jargon that is regularly used—it will enlarge the EU’s competences over taxation. That is inevitable. I am fed up with warning about what will happen and being proved right. It is time that the House acted on the warnings that it has been given for many years.

I want to consider amendment 11 and the test for significance. The amendment is in keeping with the spirit of the Bill. Its scope is narrow. Clause 2 covers “Treaties amending or replacing” the existing treaties. Clause 3 deals with amending the treaty on the functioning of the European Union. Each relies on clause 4, which provides for a whole lot of tests, including subsection (1)(i) and (j), which are subject to the significance test.

The problem with the significance test was best described by the European Scrutiny Committee. I appreciate that many of my colleagues say, “Oh well, that’s chaired by the hon. Member for Stone. What do you expect? It’s been completely hijacked by the ultra Eurosceptic extremists.” However, I invite hon. Members to consider the membership of that Committee. Its members are a pretty reasonable bunch of people. I happen to believe that my hon. Friend the Member for Stone is a reasonable person, too. Although some of the report was contested, paragraph 98 was supported unanimously by Labour and Liberal Democrat as well as Conservative members of the Committee. Paragraph 98 states, in bold:

“We think the possibility for successful judicial review of a ministerial decision whether a transfer of power under clause 4(1)(i) and (j) is significant will, in practice, be limited.”

That is based on evidence given to that Committee. The problem is:

“The expressions ‘if the Minister is of the opinion’ and ‘in the Minister’s opinion’ in clause 4(4) underline the subjectivity of the process and the difficulty of judicial review.”

My hon. Friend the Member for Dover (Charlie Elphicke) said that somehow Mr and Mrs Citizen from Dover can toddle into the administrative court to bring an action that threatens the whole Government’s policy when the Minister has opined to the House of Commons that something is not significant enough to attract a referendum. That is absolutely bonkers. My noble Friend Lord Rees-Mogg and Mr Stuart Wheeler are hardly two typical citizens—perhaps they are my hon. Friend’s constituents—but they have both failed to attract the attention of the courts or to engage them in such fundamentally political decisions. The phrase “in the Minister’s opinion ”clearly makes the decision political. It is a political problem. The skill of amendment 11, which stands in the name of my hon. Friend the Member for Hertsmere (Mr Clappison), is that it brings decisions home to the House of Commons, where political decisions should be made.

The main argument against amendment 11 is that judicial review is superior to the Government’s obtaining the consent of the House of Commons. We do not like rule by judges or judicial supremacy. We prefer democracy, which commends the proposal. The second argument against amendment 11 is even more bizarre.

[Martin Horwood]

Surely the hon. Gentleman will concede that under the Bill, every treaty change will be subject to a vote in Parliament, because an Act of Parliament will be required for every single treaty change, whether there is a referendum or not.

[Mr Jenkin]

I thank the hon. Gentleman for that, because it is the only other argument against amendment 11. He is saying, “You don’t need to bring a decision to the House of Commons, because you can’t get a treaty change without an Act of Parliament and the whole issue can be dealt with then.” However, that is an argument against clauses 2, 3 and 4. What is the point of the Bill? The point of the Bill is to bring matters to Parliament or to the people for decision before we legislate to enact a new treaty change. If the Government and the Committee do not accept amendment 11, which would transfer a decision from the courts to the House of Commons, why are we bothering with the Bill at all? The hon. Gentleman makes an argument against the Bill.

[Mr Swayne]

My hon. Friend will recall that we did not get a referendum on the Lisbon treaty because the House decided that we would not have one. I am entirely with him, and I much prefer in principle for decisions to be made by the House of Commons rather than the courts, but frankly, in that previous case, I have no doubt that the courts would have granted us a referendum when the House denied us one.

[Mr Jenkin]

I should point out that the only reason why we are not having a referendum on the Lisbon treaty is that the Government decided to persuade their supporters not to have one. My hon. Friend is exactly right that the House of Commons decided not to have a referendum. In the next Parliament, however, the House could decide to repeal the Bill when it is an Act of Parliament. It could decide to overturn a Minister’s decision, or it could accept a Minister’s decision, introduce a Bill to ratify a new part of the treaty, give all sorts of reasons why there should not be a referendum and put that into the Bill. The Bill is no guarantee of a referendum. It creates an expectation that there should be referendums, but that is all it does—it generates a political expectation.

[Claire Perry]

I feel as though I am putting a toe into a pool full of big fish who have been debating these issues for years, so I hope that my hon. Friend will be gentle with me in his reply. Does the Bill go any way towards making him feel better about the future of the Eurosceptic majority in this country? Is he 10% more comfortable? Is he 20% more comfortable? I believe that this is a very big step in the right direction within the constraints of the coalition and the legal situation that we have inherited. Is it 20%? Is it 50%? Surely he is sleeping a little bit easier at night as a result of the Bill being brought to the House.

[Mr Jenkin]

Of course. I stood on the same platform as my hon. Friend at the last election of wanting a referendum lock and a sovereignty Bill, but I fear that the way the Bill is being enacted will disappoint our constituents.

[Claire Perry]

It is still better.

[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.

--- Later in debate ---

[Mr Lidington]

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

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

[Mr Jenkin]

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

[Mr Lidington]

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

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

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

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

European Union Bill

Bernard Jenkin Excerpts

Tuesday 11th January 2011 Commons Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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[Charlie Elphicke]

I would agree with the hon. Gentleman were we part of the single currency and the eurozone, but we are not. The systemic risks to our currency and their regulation should be dealt with at home. We should not, as a matter of principle, be part of bailing out the eurozone, leaving the exception of Ireland to one side.

[Mr Jenkin]

In support of my hon. Friend’s point, it is a great mistake to believe that there ought to be identical systems of financial regulation throughout the world, because that magnifies the possibility that a systemic risk in one market will affect all markets in the same way. Various and competing regulatory systems are better for global stability.

[Charlie Elphicke]

I thank my hon. Friend, and there is much force in what he says. The UK’s destiny is best controlled by the UK. The sovereign Parliament of the UK is the cockpit of our nation’s ship of destiny—that is absolutely clear.

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[Mr Clappison]

The interesting point that was missed out by the right hon. Member for Rotherham (Mr MacShane) in his contribution and by the Labour Government in their referendum literature, which tried to portray the European Union as simply a trade organisation akin to the World Trade Organisation, is that there is a commitment to an ever closer union. Attention was drawn to that at the time of the original referendum, but sufficient account was not taken of it. That commitment continues today. The European Commission has signed up to measures that promote ever closer union. Measures and proposals come before us all the time that transfer further power from this House to the European Union. There is no underground supply of new power that the House can create and hand out. Power is exercised either here or in the European Union, and over the years we have conceded more and more power to the EU, which must inevitably have an effect on sovereignty.

We need a reaffirmation of parliamentary sovereignty as far as the EU and other potential threats are concerned, but we also need Ministers who are prepared to stand up to the EU, say no and not make voluntary concessions. I am sorry to say that under the provisions of the treaty of Lisbon, we will see the creation of the European External Action Service, which can only result in more power and authority being drained away from our foreign policy and going over to the EU. The Union Jack is being hauled down throughout the world and the EU’s flag run up in its place.

The EU and the European Parliament are champing at the bit to get their hands on our security policy, and the European Commission’s second-top priority in its immediate programme is the creation of its area of freedom, security and justice. There is a constant stream of directives on the matter, and let us be clear that those directives are not about picking a measure here or there that will improve the standard of justice. The point of the European area of freedom, security and justice is to create a common European legal system, which is being put together piece by piece. We currently have an opt-out from that, and Ministers need to find the resolution to maintain that opt-out and refuse to opt in to any further such measures.

I have not mentioned the list of financial regulations and proposals for economic governance that we heard earlier, but it is very long. If we sign up to all those individual measures, they will result in a transfer of power that will have an effect on our sovereignty. We need an improved sovereignty clause in the Bill, to send a clear signal of what we are about, and we need Ministers who will stand up to the EU. I am sure that they will do that, but they need to find the determination to do so and we need to support them in finding 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.

[Michael Connarty (Linlithgow and East Falkirk) (Lab)]

I could not resist coming into the Chamber when I saw the hon. Gentleman’s name on the board. Could he explain to me how the status quo has changed since 1972, when Parliament basically took the decision to give primacy to EU law?

[Mr Jenkin]

What has changed is the nature of the legal order in the EU and the UK’s relationship with that legal order. If it had been explained to Parliament in 1971, when the European Communities Bill was progressing through the House, that in future a UK court would be able to strike down an Act of Parliament in the name of the European Union, there would never have been any possibility that we would have joined. The development of the European legal order, with the huge number and range of powers that have been passed over from the UK to the EU, means that I fail to see what competences the EU does not now possess that it could ever possibly need in order to become a fully fledged state. If the hon. Gentleman does not recognise that the situation is fluid, I think he is living on another planet. He had better listen to the rest of my speech.

We know where sovereignty lies in the British constitution—here in Parliament. Under a written constitution, it does not necessarily lie with the people, although the authority to exercise it might lie with the people. I would argue that the authority of Parliament’s sovereignty also rests with the people. Under the American constitution, sovereignty is dispersed among various institutions but ultimately rests with the judges. If we moved towards a written constitution, we would overturn the democratic constitutional settlement that we have enjoyed in this country and that has given us such flexibility and agility for 300 years. We would lock ourselves into a judicial system, which was fundamentally undemocratic because it would be ruled by judges, not the British people.

[Ms Louise Bagshawe (Corby) (Con)]

Having lived in the United States, I absolutely share my hon. Friend’s concern about judges’ encroachment on parliamentary sovereignty. However, in the context of the Bill, is not he in danger of making the perfect the enemy of the good? Is not clause 18 a great first step towards limiting the abrogation of the sovereignty of this Parliament by the EU? By outlining a perfect situation, is not my hon. Friend in danger of making the enemy clause 18, which is surely a step in the right direction?

[Mr Jenkin]

I fully accept that my right hon. and hon. Friends on the Front Bench have attempted to take a step in the right direction. However, by the advice that they have accepted and their framing of the clause, they have not achieved the objective or made any progress, and they may have set us back. To put it bluntly, if clause 18 is all that Parliament has to say about its sovereignty, that is an invitation for the judges to come for us, as I shall explain.

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[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 John Spellar (Warley) (Lab)]

Did the hon. Gentleman seek alternative legal advice, which is often the sensible thing when getting that sort of advice in government, as I know from experience?

[Mr Jenkin]

We sought alternative legal advice and were assured that, in all probability, the domestic British courts would uphold Parliament’s sovereignty and ability to suspend those legal enactments. But that is the point. We might have it now, but will we have it in the future?

[Michael Connarty]

Is the hon. Gentleman not willing to tell the full tale? The power given to the Commission under European Union law allowed it to stop France banning the import of our beef when it was cleared of infection. Is it not useful to have a common law that everyone agrees can be enforced in the other 26 countries? Without that, we might not be selling beef to Europe to this day.

[Mr Jenkin]

I fully accept that there is an argument and a balance of interests to be struck. The hon. Gentleman is arguing that it is always in our interests to accept a European Community legal order, but I am suggesting, quite reasonably, that it might not be. There might come a time when it is not in our interest to accept a European legal decision. Sadly, Governments tend to be driven by such a fear of confrontation with the EU that they will agree to anything in the long term. That is what has been happening, and this Government are thinking, “We have so many difficult fish to fry at the moment, we had better not confront them on this. This is the important thing we have to go for.” As a result, more and more power seeps away, and I put it to him that sooner or later that has to stop.

As Martin Howe QC said in evidence to the European Scrutiny Committee, the Bill might stop us on the escalator, but it does not stop the escalator going up. A constant stream of powers and functions—not new competences or changes in voting arrangements that will trigger referendums—is still travelling in one direction to the EU. It is in the textbooks: it is called the doctrine of the occupied field. Once a power has been gained by the EU, the EU can only delegate it back to member states; member states cannot get it back. It is a doctrine formulated, of course, by the European Court of Justice in order constantly to consolidate the federal character of the EU.

[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.

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[Mr David]

The hon. Gentleman makes the point that there is absolutely nothing in the Bill—and no indication whatever from the Government either—to say that the Government do not accept the primacy of European Union law. That is the fundamental point that we are at. I therefore take his comments to be a direct challenge to what his Government are proposing. My second point is that we are also talking about the duality principle, whereby European Union law has effect in this country only because of an Act of this Parliament. That is our position.

[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.

[Mr Shepherd]

When I first came into the House in 1979 it would have been inconceivable that anyone would even discuss the sovereignty of Parliament, because it was so much a part of the fabric of how the nation had been governed, and how it understood its Government, over nearly three centuries. We all know that the doctrine of the sovereignty of Parliament can be a tyranny. It is, after all, only a temporary majority in the House of Commons that can change our constitution and our laws. That knowledge was held by the House and informed the great debate that Lord Hailsham tried to start when he spoke of elective dictatorships, even though he was making a wider point about changes to the constitution. It was certain, however, that this House was sovereign, and that that could be borne because no House of Commons can bind its successor. That created tolerance for any actions that came to be seen as tyrannous, because they could not be held beyond a Parliament. That became a reality when we became a democracy.

I give a cheer for my right hon. Friend the Member for Wokingham (Mr Redwood) and my hon. Friend the Member for Stone (Mr Cash)—who should really be my right hon. Friend—for remembering the constitutional developments involved. The House has now lost any sense of narrative about who we are, what the House is and what this country is. I weep when I hear Labour Front Benchers—and the right hon. Member for Rotherham (Mr MacShane)—these days. Some of them were not here when the wonderful Peter Shore was in the House. In 1982, speaking on a referendum Bill just before the election, he stood up and said that it was inconceivable that a whole generation of British parliamentarians had given away the most sacred trust and the thing that they prized most: democratic self-government. That is always what this has been about: who is the master? The master is the people. I think that the American revolution was the third stage of the English revolution. In fact, we are the representatives of the people, and it is their continuity and their fortitude that we depend upon for the very survival of this House.

During my time in Parliament a lack of trust has developed in the protestations of Government that nothing is really changing. We are told that we do not have to worry our heads. Honourable Ministers have stood at the Dispatch Box and told me that nothing has really altered, and that in substance we are where we were. That is not borne out, however, by what has happened. The line of direction—where this is all heading—has become painfully clear. It was clear long ago.

The occupied field was referred to earlier, and I see close by the Secretary of State for Work and Pensions, who made his reputation as a newcomer to this House of Commons and was advised that his career was ruined. That is one of the tortures that is extended to everyone. As I look around the House, I see many who were elected because they gave undertakings to their constituents that they profoundly believed that there was a need for an expression directly on behalf of the people on the issues that confront us. I am very interested to see how we drift when we come to the comfort of these Green Benches and we forget the solicitations of the prospect of office. We will forfeit the good will of those we count as our friends if we march towards a conclusion that is not now, I think, that of the British people.

Let me make the argument about why I think this reaffirmation of sovereignty is important. It is because I have seen in my time in Parliament—I am, of course, older than I look, to my regret—the degradation of the sense of the British people that ultimately they control their Government, through general elections. Everyone in this Chamber will have met the disillusioned and the despondent. “It does not matter what we think,” they say, “We are ruled by others.”

I have already mentioned Peter Shore, but there was also Tony Benn, who had a fivefold construction for the question of whether we are a democracy. I have always refined the issue down to two of his questions, which seemed to convey the essence of the point. First, who makes the laws? Many of our people are deeply confused about that. Are they made in this place or elsewhere? The second question he asked was: how do you get rid of them?

The British people have faced those puzzles for a long time now. We do not know who makes the laws—I am talking about the generality of those whom we represent. They do not know. “Is it Parliament?” “No, it is the European Union.” We play up to that game. On the Front Benches, they always pretend it is always someone else—“We are only doing what we have entered into because of a treaty obligation”—but treaties are, of course, subordinate to legislation. We never emphasise that enough. The Crown makes treaties. The common law is subordinate to statute. We do not state that loudly enough when we are confronted with judges who are now trying to propose that arrangements are not quite as we understood them. They know the tyranny that Parliament can be. We are the element that should make this bearable by the people whom we represent. We are their representatives. As I was reminded by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), the Second Treatise of Locke, which informed the American revolution, also informs our view of constitutions. It means that we can never give away that which is theirs. Yet we have done that throughout the time I have been in this House.

I support the amendment not because I want to, but because I think it unbelievable that Parliament is being asked to affirm the sovereignty that has been a feature of our constitution for 300 years, as interpreted by constitutional writers, and that we are now seeing judges who equivocate. There are now two legal orders in the country: the European legal order, made up for themselves by the courts of the European Union, and our own legal order. I believe profoundly that the latter must take precedence, and that is the assertion of the sovereignty of Parliament that I should like to see in the Bill. I cannot imagine how the House of Lords will look upon this “expression of sovereignty”. Sovereignty is a given, yet now it is questioned.

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[Michael Connarty]

I am grateful, but I really do not need protection from the bullies on the Scottish nationalist Benches.

I believe that this joke is very serious and dangerous. The Front-Bench team can be very persuasive, and it has to convince people that this Bill, and in particular this clause, changes things—but it does not.

[Mr Jenkin]

Will the hon. Gentleman give way?

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[Mr Lidington]

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

[Mr Jenkin]

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

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

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

[Mr Lidington]

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

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

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

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[Mr Lidington]

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

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

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

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

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

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

[Mr Jenkin]

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

[Mr Lidington]

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

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

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[Mr Lidington]

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

[Mr Jenkin]

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

European Union Bill

Bernard Jenkin Excerpts

Tuesday 7th December 2010 Commons Chamber

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

In our manifesto we promised to amend the European Communities Act 1972, and the coalition agreement states:

“We will amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty—a ‘referendum lock’.”

But the Bill does not amend that Act.

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[Yvette Cooper]

My right hon. Friend is right: those debates are important. We could have had a pre-European Council discussion today, at the same time as European Finance Ministers are meeting and well in advance of national leaders meeting to discuss exactly these issues. Instead of talking about vital issues for the European economy, what are we doing? According to the Foreign Secretary, we are talking about referendums that he says we will not need and sovereignty that he says we already have—that is, referendums for powers that he says he will not even transfer, and sovereignty that he says will not change at all as a result of this Bill. Unnerving as I find it to be in agreement with the hon. Member for Clacton (Mr Carswell), I am afraid to say that he is right. This Bill is just smoke and mirrors to distract us from the fact that the Government have no strategy for Europe and no way of handling their own Eurosceptics.

Instead of having a serious debate about the future of Europe, the Foreign Secretary is pandering to the Eurosceptics, and it is the worst pandering of all, because it will not even work. All that it is doing is winding them up. This Bill is a complete dog’s dinner and he knows it, yet the Eurosceptics are salivating nevertheless. The Bill tries to constrain parliamentary sovereignty on the one hand and protect parliamentary sovereignty on the other, using a referendum lock that does one thing and a sovereignty clause that does the opposite—a referendum lock that tries to bind future Parliaments and a sovereignty clause that makes it clear that the Government can do no such thing. It is all in the same Bill, which faces both ways at the same time.

The Government’s press release on the sovereignty clause says:

“The common law is already clear on this. Parliament is sovereign. EU law has effect in the UK because—and solely because—Parliament wills that it should. Parliament chose to pass the European Communities Act 1972. That was the act of a sovereign Parliament.”

There is not much room for misunderstanding there. The statement then proclaims that

“to put the matter beyond speculation,”

the Government will introduce the sovereignty clause, but whose speculation are we talking about? It is not the speculation of the hon. Member for Stone (Mr Cash), because his European Scrutiny Committee has said:

“The evidence we received suggests that the legislative supremacy of Parliament is not currently under threat from EU law.”

The Committee continued:

“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.”

The only source of speculation that I could find was one speech by a barrister on behalf of a client in 2002 and a speech by the Prime Minister in 2009. The truth is that the Foreign Secretary has set up a straw man in order to shoot it down, because he will not give his party what it really wants, which is a referendum on withdrawing from the EU altogether.

[Mr Jenkin]

The right hon. Lady really does not know what she is talking about. Let me refer her to the Law Lords’ judgment in the case of Jackson v. Attorney-General, in which Lord Steyn said:

“The judges created this principle”—

that is, the principle of parliamentary sovereignty.

“If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.”

Lord Hope said:

“Parliamentary sovereignty is no longer, if it ever was, absolute…Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.”

There are therefore two Law Lords speculating about the future of parliamentary sovereignty. The right hon. Lady had better do some homework.

[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.

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[Mr John Redwood (Wokingham) (Con)]

This Bill is born of a very serious mood in our country. A majority of people in Britain feel that a great amount of power has already passed to the European Union over the past 20 years, and they feel that powers are still drifting away under this new Government. They would like to see that progress arrested, and they would like to see powers brought back in certain crucial areas. They would like to feel that more of their lives were under democratic, accountable government here in Westminster than under the less accountable, less democratic government of the European Union. The Government would be wise to heed the seriousness of that view among many in this Parliament, representing many outside it.

I welcome the Foreign Secretary’s noble aim. He says that the aim of his legislation and policy is to give us all a greater sense of empowerment when it comes to matters of European governance and action. I would urge him to look again at his Bill, however. It is certainly cleverly contrived, and it is certainly contrived in a great deal of detail, but it is, in practice, the not-the-referendum Bill. On every area of competence and power that we see drifting away or being transferred from us as we have this debate, we are told, “That would not qualify for a referendum under this legislation.”

I believe that the Foreign Secretary has taken legal advice, and he wants to have a referendum on the transfer of competences rather than on the transfer of powers. I would suggest that that is a tad too clever. We all know that most of the competences have already gone. That was what Lisbon was all about. That was why he and I fought tooth and nail, together, against that treaty and in favour of a referendum on the treaty. Most of the things that the Government now wish to do are a shared competence with the European Union. What matters is not a further transfer of competence, but a further grab or transfer of power by the European authorities.

When the Conservatives were in office, we made it very clear that we wanted trading relationships and friendships, and a certain amount of common legislating in single market and related areas, but not a common Government or political union. To reflect that, the architecture that we persuaded the partners to accept had the third pillar areas of foreign affairs and home affairs, which were matters for independent sovereign states to decide, and we always preserved the veto on any common action. That has now been eroded. So, as we meet to debate the so-called referendum lock, we see powers on home affairs being surrendered, issue by issue, by this Government—as they were by the previous Government—which will result in a much more common criminal jurisdiction from the European level. The British people need a voice on that matter; they need to be asked about it. Some of them might even agree with it, but they want to be treated seriously, as grown-ups, and asked if that is how they want their country to be run in the future.

On foreign affairs, we are being told as we meet that we still have a veto on the big issues and that my right hon. Friend the Foreign Secretary can play his part in shaping a common European action and diplomatic strategy. At the very same time as we have to cut severely the growth rate of our public spending and make some deep cuts in certain areas, which we do not like, we see the European budget going up rapidly, partly to finance a big expansion in the European diplomatic service. This is not being done in order to have holidays in the sun, as some national newspapers seem to suggest, but because the EU wishes to exercise power and authority on our behalf and on behalf of other member states.

[Mr Jenkin]

I do not think that the Foreign Office has fully understood the consequences of encouraging this to go ahead, which is what it did. I am afraid that a great many of us voted for it in this House. The European External Action Service is ordering much more expensive cars, is to have grander embassies and is to pay much higher salaries than our own diplomatic service. That will be to the detriment of our diplomatic service because it will attract the talent away from our service and towards the European External Action Service.

[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?

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[Kate Hoey (Vauxhall) (Lab)]

I have to say that there is little in the speech of the right hon. Member for Wokingham (Mr Redwood) with which I would disagree. That immediately places me, of course, very much in a minority in my own party. I do not think that either of us is in a minority in the country, however. Many people watching our debate today will be wondering how on earth we ever got here. They will wonder why we are trying to introduce a Bill that is literally tinkering around with the real and fundamental problems of our membership of the European Union.

It is with great regret that I have to say that my party betrayed the promise it had made on the Lisbon treaty. If it had granted the referendum on that treaty, we would not be here discussing this Bill. One reason why my party and others did not want that referendum is that they knew the result would have been a defeat. In other words, we would not have signed up to the Lisbon treaty; it would not have happened.

[Mr Jenkin]

Will the hon. Lady forgive me for pointing out that if we had had the referendum on the Maastricht treaty, it is most unlikely that the European Union would be in the mess that it is in today?

[Kate Hoey]

I was new into Parliament shortly before the Maastricht treaty and I lost my position as the shadow spokesperson on the citizen’s charter and women because I voted against that treaty. I am therefore well aware of the issues. I was obviously in a minority then in my party, even though prior to that we had been quite sceptical on Europe.

I give the coalition Government some credit, because I know that they are facing great difficulties. The Conservatives said fine words before the election about how they were going to get more powers back and not allow any more powers to go. Unfortunately, perhaps because of the coalition, but also because of other pressures, most of that has not been complied with. The Government have therefore come up with this Bill, which seeks to show the country that there is still support within the coalition for getting some powers back. As my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) has said, the Bill is unfortunately a minefield that lawyers will absolutely love.

The Bill misses the whole point. Some people continue to say that we should not even discuss whether we should leave the European Union, whether we should have that debate in the country and whether we should have a referendum. They have yet to prove to me—I have studied this very carefully—just how having that debate, having that referendum and voting to leave the European Union would be a disaster for this country. No cost-benefit analysis has ever been carried out on that. No Government have undertaken a proper cost-benefit analysis of the benefits to this country of being in the European Union. Although other countries, such as Switzerland, have carried out such analysis, every time it has been suggested here, it has been brushed away by the elite in Europe and in this country, who say that the net gains of membership are so obvious that there is no need even to think of quantifying them. That is increasingly becoming not true and the public are beginning not to believe it.

I am not a reader of the Daily Express, but its campaign, which has shown huge support for a discussion and debate on the European Union, is very much to be welcomed. Recent developments have made all of us who have doubts about this country’s involvement in the European Union queasy, because the United Kingdom’s membership of the EU is incredibly expensive for us and the benefits are becoming increasingly difficult to see. We do not need, again, to go into the cost of our net budget contribution, the increase that is going to take place and how it will be spent. Nobody wants to let the public know just how our money is spent. They are not told about the huge costs of the European External Action Service. From now on, our ambassadors will become less important than this European Union ambassador and it is shocking that we have allowed that to go ahead. I cannot understand why the new Government have done so, apart from the fact that they are a coalition.

However, I still wonder whether a Conservative Government with a proper majority would really have done all the things that they said they would. Once someone goes to Europe and gets involved in it, they somehow start almost to be part of it. They start to make up the discussions and the arguments, and somehow their attitudes change. The Minister for Europe used to say some brilliant things about Europe that I agreed with, but now that he is on the Front Bench, his words have changed slightly and become slightly nuanced. We get the feeling that once people have been going to Brussels over and over again, they change their attitude.

I am concerned that the Bill does not go far enough. I am not going to vote for the Labour amendment, which is a cop-out and a nothing amendment—it does not say anything. It does not bring to people’s attention all the opportunities that we missed when we were in government. I still have not decided whether I will abstain or vote for a Bill that we might be able to amend. I want this Bill to be used as the opportunity for people in the country to start being listened to. I want them to start having the opportunity to engage in the debate about why they feel so strongly that our membership is not giving us anything that is worth the money that we pay in.

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[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.

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[Mr Dorrell]

Orange. The right hon. Gentleman is quite right. We regard all those developments as steps in the right direction, but, although there is a chain of causality back to the European Union, it is a relatively modest one.

I shall try to make the case for the Bill, which should be supported, in considerably more modest—one might even say, more sceptical—terms, because people who claim for themselves the title of sceptic in the European debate often desert the basic principle of scepticism, which is to stand back from the argument and seek to assess it more coolly than sometimes is the case.

I have drawn attention to the argument from the hon. Member for Rhondda in support of the EU and our membership of it, but those who argue the case against it, and increasingly explicitly argue that we should leave it, tend to express the argument in terms of irreversible shifts of power and use the word “permanent”.

I again am a sceptic, however, because history teaches us that no human institution is permanent and there are no irreversible shifts of power. There is only a tide of human events, and the case for the European Union, which I am happy and, indeed, keen to make, is the pragmatic case whereby, in the world of 2010, the European Union, which is a dramatically different institution from that set up by the treaty of Rome in 1958, should be supported not because it is perfect, when it plainly is not, but because it serves a purpose. Imperfect as the EU is, it is part of the arrangements for the governance of Europe, and on balance it contributes more good than it inflicts harm. In human affairs, that seems to me justification enough for the institution to continue to exist.

It is often said of the European Union that there is no European demos. Indeed, my right hon. Friend the Foreign Secretary used to make that case when he argued for a more sceptical approach to the development of European institutions. It has become increasingly obvious that there is no such thing as a European demos, but the EU, as it has evolved since 1958 and partly because it now has so many more members, is increasingly obviously an intergovernmental organisation, which most people in the House and, indeed, among our constituents accept as a fact of life, not something that should be particularly resisted.

[Mr Jenkin]

Where is the evidence that the European Commission or the European Court of Justice accept that the EU is an increasingly intergovernmental organisation? I put it to my right hon. Friend that, actually, they insist on quite the reverse.

[Mr Dorrell]

They may have ambitions, and people within those organisations plainly do have ambitions, but that is exactly what the Bill seeks to address. It introduces not an irreversible, immovable, permanent safeguard that can never be overcome, but, as my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) said, a further inhibition on the development of competence within the European Union, which I would have thought my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) welcomed. Again, it is a modest step. My hon. Friend the Member for Stone dismissed it as a mouse of a Bill, but even if it is a mouse it can be a mouse on the right side of the scales, and that seems to be the case for it.

The Bill is right in principle and in practice. It is right in principle, because I do not agree with the arguments against referendums in principle when the question at stake is how the country is run. I agree with one of the points that my right hon. Friend the Member for Wokingham (Mr Redwood) made, when he said that part of the problem in terms of public acceptance of the European case is the perception—indeed, the reality—that competence has passed to the EU without the scrutiny that our constituents want to see. That is a correct statement of historical fact, so, in order to rebalance the argument, it is a step in the right direction and a correct principle that any further accretion of power to the European institutions should be subject to a referendum block, the terms of which are set out in the Bill. The hon. Member for Ilford South argued that a Bill introduces the opportunity for judges to interpret it—well, yes; that is the nature of an Act of Parliament. If we pass an Act of Parliament, that creates a statute, which is interpreted in the courts. There are no Acts of Parliament of which that is not true.

Against the background of what has happened in the European argument over 40 years, the Bill introduces the correct principle that further accretion of competence to the European institutions should be subject to a referendum. That is right in principle. I also think that it is right in practice, for the important reason that my right hon. Friend the Foreign Secretary set out in his speech and which was impliedly accepted in the speeches made by both the shadow Foreign Secretary and, ironically, my right hon. Friend the Member for Wokingham. What matters in the European argument now is the use of these competences and how this increasingly intergovernmental organisation reacts to the pressures of events.

My right hon. Friend the Member for Wokingham pressed the point that there are some fundamental threats to our economic development, tied up in particular in the current pressures on the euro. I entirely agree with my right hon. Friend about the dangers that arise as a result of those developments. The case that my right hon. Friend the Foreign Secretary was making for the Bill is that it is a modest step to disarm the constitutional argument about how we are run, in order to focus the debate on where it properly needs to be—on how those competences are used by the European institutions and how that impacts on our way of life.

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

As far as the term “business as usual” is concerned, I must ruefully reflect that it is business as usual in this House, as we are again discussing this interminable topic. It has occupied many thousands of hours of discussion since I was elected in 1992, and many thousands more before that. It is perhaps amusing and depressing to see how little some things change while the pace of European integration seems uninterrupted by whatever votes take place, whatever arguments occur and whatever crises erupt. The present crisis over the governance of the euro is a case in point. The architects of the Maastricht treaty, far from accepting that they have been proved wrong by events, are seizing on the chaos to strengthen the hold of the centre over the rest of Europe, accelerating the pace of integration as a result.

I am bound to ask, as should we all, whether the scene that we observe in the Chamber today was really what my right hon. Friend the Foreign Secretary envisaged when he came up with the brilliant idea of a referendum lock at the Conservative conference in 2009. At that time, I think what he saw looming was the imminence of the ratification of the Lisbon treaty, and the difficulty of holding a referendum on a treaty that had already been ratified. He was looking for something to throw to the crowd, and his idea got a wonderful round of applause at the conference. Little can he have imagined, however, that that simple promise would give rise to a Bill of such byzantine complexity. It has not been universally welcomed in the Chamber, although, knowing the way in which this place works, I suspect that it will find its way into Committee. No one, with the exception of a few aficionados, can have imagined what a mess the future Government were getting themselves into by making such an apparently simple pledge. As recently as 1 November, the Prime Minister told the House:

“I would grant a referendum if there were any proposed transfer of powers from Westminster to Brussels.”—[Official Report, 1 November 2010; Vol. 517, c. 625.]

My hon. Friend the Member for Hertsmere (Mr Clappison) made an illuminating speech, pointing out that certain transfers of power are not included in the Bill. The reason why they are not included is either that the Government have already made those transfers and do not want to admit that they should have been made more accountable to this House, or that they intend to make further transfers and do not want to get caught up in the potential for litigation. I would be grateful if my hon. Friend the Minister for Europe made it clear in his summing-up speech when he expects the provisions to come into force. My understanding is that whatever is in this Bill is not intended to apply to this Parliament, but to the next one. I see the Minister nodding. It would be a bit embarrassing to legislate for the next Parliament and create a trap for a future Government that the current Government would not accept for their own behaviour. I guess that that is why these lacunas exist.

The crunch is that it all depends on what is meant by power. A child can have power over its parent, even though it does not have any sovereign or legislative authority. Power has a fluid quality to it: it cannot be held; it travels to people with influence. Power is clearly leeching away from our kingdom and this House, even though I believe that this House remains absolutely sovereign. The fact of power, where it is exercised, and the constraints that it makes people feel when it is exercised, is clearly having an effect.

Two simple tests can be applied to the Bill. The Foreign Secretary himself says that the Lisbon settlement lacks democratic legitimacy, so we should ask ourselves whether this Bill adds to the democratic legitimacy of the settlement between the United Kingdom and the European Union. The answer is that it does not affect it. It affects what might happen in future—we can argue about that, and some argue that it might have a greater effect than expected and that the courts might have to decide how much effect it will have—but it does not constitute a lock, as my hon. Friend the Member for Clacton (Mr Carswell) pointed out, because no Parliament can bind its successor. Whatever is in the Bill can be amended or repealed by a future Parliament. It is not really a lock, but it does not affect anything that has gone before.

The sovereignty clause provides another case in point. In fact, despite the Government’s repeated reference to it as such, it is not a sovereignty cause. It does not contain the word “sovereignty” or “sovereign” and it does not use the words “supremacy” or “primacy”. It merely provides an historical account of what happened—that there was an Act of Parliament, which is how the European Union’s laws apply in this kingdom. It has no effect whatever.

Let me cite the evidence given to the European Scrutiny Committee. Professor Adam Tomkins gave advice that was accepted by the all-party Select Committee. He said:

“Neither clause 18 nor any other provision in the Bill safeguards the United Kingdom from the further development of EU law by the ECJ.”

Now the ECJ, that really is power! How is this House going to regulate the power of the European Court to expand competence and reinterpret the competences of the European Union as it has done down the ages? Well, of course, it cannot. I was touched by the faith in the Bill expressed by my right hon. Friend the Member for Charnwood (Mr Dorrell), but as Professor Tomkins also said on the limitations of clause 18:

“If this is the attempt by the UK Parliament to reassert or reclaim some kind of sovereignty in the face of the European competence creep, it ‘don’t do what it says on the tin.’”

I am afraid that the Minister has to face that.

In my last minute or two, let me move on to the second test of the Bill. Is it really in the national interest; does it address the national interest? I would regard the Bill as almost wholly irrelevant to the national interest. The hon. Member for Ilford South (Mike Gapes) pointed out that we should be talking about the rise of China and how we are going to do business with India. We really are contemplating our navels as we discuss this Bill. As the recent Public Administration Committee report says, what we need is a reassessment of our national interest with regard to our membership of the European Union. I do not advocate an “in or out” referendum, but I think that we need to start reassessing whether our current terms of membership are in our national interest and then to start working out how we should alter them to reflect our national interest.

The problem with this Bill is that it neither addresses the democratic legitimacy—or the lack of it—in the current settlement, nor stops the flow of power to the European Union. As we are talking about democratic legitimacy, I should say that that flow takes power away from democracies and gives it to something else, because whatever the European Union is, it ain’t a democracy. The Bill fails to address our national interests and it reflects the muddle that the Government have got themselves into because, as we have heard, the prime purpose of this Bill is political; it was designed to appease sentiment in the absence of a referendum on all the treaties where we should have had referendums: the Maastricht, Nice and Amsterdam treaties, as well as the Lisbon treaty. The Bill will fail to reassure people and will fail to address the increasing disconnect that people feel, not from the European Union, but from the governance of their own country by their own democratically elected representatives. Dealing with that is the real challenge that we face, because that is about despair about us in this place.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Before I call the next speaker, may I say that I am trying to get 11 Members in and I presume that the Front-Bench spokespeople will want 15 minutes each? We can work the sums out for ourselves, but I ask for a little haste and for hon. Members not to take as much time.

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[Mr Jenkin]

The Minister nodded at that point in my speech, and I accepted that as an indication of assent.

[Jacob Rees-Mogg]

rose—

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[Mr Lidington]

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

[Mr Jenkin]

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

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

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

[Mr Lidington]

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

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

Afghanistan

Bernard Jenkin Excerpts

Wednesday 27th October 2010 Commons Chamber

[Mr Hague]

The right hon. Gentleman makes a good point and we will of course be very conscious of that over the coming months and years. There are now 48 troop-contributing nations and at the Lisbon summit we hope to agree the process of transition to Afghan security control in selected districts and provinces. It is important that allies deployed in provinces where Afghan forces are able to take over do not then just say, “We are able to leave Afghanistan altogether.” There will be a continuing role in other parts of Afghanistan for those forces. Therefore, that is one message in response to his question.

The other message is that the right hon. Gentleman can see from my statement that the Afghan forces are beginning to take on some very difficult tasks in difficult areas. He would not expect the ratio to be 2:1 in their favour in Helmand, where we have so many enormous challenges, because they are still in the fairly early stages of building the ability to sustain and lead their own operations, but they are beginning to show that ability and the increase in training is now a prime requirement. That is why my right hon. Friend the Defence Secretary has shifted several hundred forces into a training role and why other countries are doing the same. The number of non-commissioned officers trained by the Afghan national army over the past year has gone up by 700% and the number of officers by 175%, so the right hon. Gentleman can see that the training of those forces is beginning to grow exponentially.

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

May I thank my right hon. Friend for his statement and for his determination to keep the House regularly updated? As Chair of the Public Administration Committee, I welcome that evidence of better governance of our effort in this conflict, but what exactly is the role of the National Security Council in the governance of the conflict? Why did the Government drop the proposal that I suggested to my right hon. Friend, then Leader of the Opposition and now the Prime Minister, that there should be a war cabinet—a smaller group of Ministers meeting more regularly on a cross-departmental basis—to ensure daily supervision of the conflict?

[Mr Hague]

I thank my hon. Friend for his welcome. I have made it clear that we intend to make these regular and frank assessments of the situation throughout this Parliament and throughout this conflict—for however long is necessary—so I am glad of his welcome for that. The National Security Council has spent an enormous amount of its time, in the first five and a half months of this Government, on Afghanistan. Our first meeting, on our first day in office on 12 May, was about Afghanistan. For the British Government, that is the decision-making body on these matters. Since it combines all the relevant Departments and Ministers, that is the forum in which we are able to bring our efforts together. He can see that we work together in other ways. The Defence Secretary, the International Development Secretary and I went to Afghanistan together to assess the situation for ourselves in May and we have continued to work together in that spirit, so my hon. Friend can be assured that the National Security Council functions as our war cabinet and that Ministers are working together on a daily if not hourly basis very successfully on these issues.