European Union Bill

Debate between Charlie Elphicke and Wayne David

Monday 11th July 2011 Commons Chamber

[Mr David]

I would like to comment briefly on Lords amendments 3 and 5 regarding the 40% threshold and on Lords amendments 6 to 13 regarding the number of referendums. I will then focus on Lords amendment 15 regarding the so-called sunset-sunrise clause.

Some people in both Houses say that a reasonable turnout in referendums is necessary to ensure a demonstrable degree of legitimacy. That argument was advanced during the alternative vote referendum debate, but it has weaknesses. We have already heard that there is a certain perverse incentive to encourage a lower turnout than might usually be the case, and that is a fair point. It is important to remember that there has been a threshold of 40% on only one occasion—the devolution referendums for Wales and Scotland in 1979. Wales rejected the then Government’s devolution proposals by a majority of four to one, while in Scotland there was a turnout of less than 40% but a narrow majority in favour of the proposals. The result in Scotland brought this question to the fore: when is a win not a win? That is a real dilemma, and it is one of the reasons that many Labour Members have reservations about the use of the 40% threshold.

Reference was made to my hon. Friend the Member for Rhondda (Chris Bryant). I should point out that Rhondda is in south Wales and Ronda, as it was pronounced by the Minister for Europe, is in Spain. My hon. Friend tells me that, although he speaks Spanish, he represents to the best of his ability the constituency in south Wales.

Amendments 6 to 13 would reduce the number of theoretically possible topics for referendums from more than 50 to three: the single currency, the creation of a single EU integrated military force, and border controls and the Schengen protocols. As Labour Members argued consistently on Second Reading and in Committee, there is an overwhelming argument for referendums to be held if ever a British Government wanted this country to join the single currency, which is extremely unlikely, and when there is a proposal for a major constitutional change. In Committee, we proposed an amendment for a Joint Committee of both Houses to examine whether a proposed treaty change was a significant constitutional change. Unfortunately, that proposal was not successful in this House, and nor did it gain sufficient support in the other place. However, that remains our position. Of course, Members in the other place are entitled to their views, but we have reservations about the proposal that referendums should be confined to these three subject areas, and it is important to put on the record that my comments set out the Labour party’s position.

That brings me to the sunset-sunrise clause. In the other place, Lord Kerr, the distinguished former head of the diplomatic service, put forward three arguments for such a clause, one of which related to foreign policy. He argued with conviction that were the provision enacted, other European Governments could freeze Britain out of the debate through enhanced co-operation or by acting outside the treaties altogether. That might happen, he said, when a British negotiator in Brussels is unable to agree to something

“because his Government back home will tell him, ‘Don’t be silly. That would trigger a referendum.’”—[Official Report, House of Lords, 15 June 2011; Vol. 728, c. 810.]

He argued that a regular assessment and decision at the start of a new Parliament on whether such a system was working would be a reasonable measure to adopt. That is worthy of consideration.

[Charlie Elphicke (Dover) (Con)]

A Government would say that only if they did not think that they could win such a referendum, so how can it be right for his lordship to put the case that the British people, if they were minded to vote against such a thing, should have their role entirely negated? That seems to be the essence of the argument, and surely that is wrong.

[Mr David]

That is not entirely fair. When Lord Kerr presented his argument, he suggested that referendums could be triggered on what are universally considered as fairly technical, minor matters. It is a hypothetical situation. Nevertheless, it is important to recognise that in the minutiae of negotiations, we negotiate effectively for the United Kingdom only when we do not have it in the back of our minds that there might be hurdles to be overcome at a later stage.

The other two arguments used in the other place were essentially constitutional. It was argued that the referendums envisaged in the Bill are essentially post-legislative. In other words, once the Government have negotiated a treaty change and Parliament has agreed to it, a referendum will be held. As the referendum is post-legislative, it is a lock. The electorate will have to decide whether to overrule the Government and Parliament of the day. Holding referendums post-legislatively in that way questions Parliament’s traditional role. Such a change should therefore be subject to constant review and reaffirmation or otherwise. That constitutional argument is worthy of consideration.

By far the most important and powerful argument concerns the principle that a Parliament cannot bind its successor. That is a vital principle of our parliamentary democracy. In the evidence taken by the European Scrutiny Committee, which is ably chaired by the hon. Member for Stone (Mr Cash), a number of expert witnesses explained the importance of that principle. Michael Dougan, the dean of the Liverpool law school and a professor of European law at the university of Liverpool, concluded his evidence by saying:

“If there is a real concern about the doctrine of Parliamentary sovereignty that needs to be addressed during the passage of this Bill, it surely consists in an attempt by the Government to persuade the current Parliament to bind its successors in a manner which runs counter to accepted understandings of our constitutional order.”

That is a pretty powerful statement.

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[Mr David]

Like the Minister, I do not want to stray into that debate. One thing that has been clear from this whole debate, including on Second and Third Reading, is the real threat to this institution comes from judicial activism. That threat does not come so much from the European Union as from our own judiciary. We must be mindful of that.

Another expert witness who gave evidence to the hon. Gentleman’s Committee was Vernon Bogdanor, a research professor at King’s college London and a former tutor of the Prime Minister. He said that

“the purpose of the bill must be to prevent a future government from supporting such an amendment or transfer without a referendum. The bill seeks, in other words, to bind a future government. That seems to me inconsistent with the declaratory proposition that Parliament is sovereign.”

That is an extremely powerful statement. We must consider the full impact of this legislation.

[Charlie Elphicke]

The hon. Gentleman is making a powerful case for Parliaments not binding their successors. The logic of his argument is surely that at the start of each Parliament, this country’s membership of the European Union and the legislation on the European Union should be reconfirmed.

[Mr David]

No, I do not think that that is the case. One thing that has come across clearly in the debates in this House is the sovereignty of Parliament. We are talking about the sovereignty of Parliament in a dualist system, but Parliament nevertheless has the right to determine what legislation has primacy over the people of this country. The ultimate decision rests with this country.

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[Mr David]

I will restrain myself, Madam Deputy Speaker, and follow your strictures.

I shall refocus on the idea of a sunset-sunrise clause. It is all the more important that these sensible proposals from the other place be given due consideration because, as has been said, never before has a Bill been deliberately designed to influence future Parliaments. I am sure that good parliamentarians would not want to undermine or even question the doctrine of free-standing Parliaments, which is why I hope the House will support Lords amendment 15. An affirmative resolution at the start of each Parliament would both ensure the legitimacy of this Parliament in making a decision and reaffirm the doctrine that one Parliament cannot bind its successor.

[Charlie Elphicke]

I take the hon. Gentleman’s point about an affirmative resolution, but nevertheless, that resolution would depend upon the action of the Executive. Proposed subsection (2) in the Lords amendment states that

“the Secretary of State may by order provide”

that the provision continues, so it would be entirely up to the Government. I put it to him that his point is therefore not a good one.

[Mr David]

With due respect, I think it is a good one. Purely in terms of procedure, as the Government have conceded, there needs to be an assessment of how this innovative constitutional legislation works in practice. That is a good idea, and I welcome the Minister’s concession on it. However, the logical extension of that is an affirmative resolution at the start of the next Parliament. If the Bill is working well, that resolution should be agreed to. If it is not, there should be an opportunity to reconsider. I therefore hope that the House will look favourably upon Lords amendment 15. It is modest, sensible and pragmatic, and above all else it reflects the principles of parliamentary sovereignty to which we all adhere.

European Union Bill

Debate between Charlie Elphicke and Wayne David

Monday 24th January 2011 Commons Chamber

[Mr David]

With all due respect to the hon. Lady, it was her party that reneged on the commitment to have a referendum on the Lisbon treaty. Government Members could have had a referendum had the Government kept their promise, but it was they who decided not to have one despite their commitment to do so.

[Charlie Elphicke (Dover) (Con)]

The hon. Gentleman will forgive me, but my recollection of the history is that the treaty was ratified and then it became impossible to have a referendum on it. Would new clause 9 not enable a Government to make a promise at election time to hold a referendum and then wriggle out of it under the cover of some committee, as the previous Labour Government did?

[Mr David]

This party does not make promises which it breaks. [Laughter.] I would point out to Government Members that, as I recall, there was a clear commitment on the Lisbon treaty. The hon. Member for Devizes (Claire Perry) cannot get out of that by saying, “Well, it was already endorsed. It was ratified. We couldn’t do anything about it,” because they could have done. If the Conservatives had wanted a referendum on a treaty change, they could have had one. It is political will that this Government lacked.

Although I am not suggesting that a future Labour Government would want to change the Lisbon treaty, are this Government serious about introducing some of the changes that they claim they want to introduce? Are they seriously suggesting that we should have a referendum on the voting system for introducing a European patent, for example? Are they seriously suggesting that we would have a referendum on how judges are appointed to the European Court? [Hon. Members: “Yes.”] It seems that some Members are quite happy to have referendums, even on the proverbial paper clips. But seriously, the place to make a decision on the merits of any potential changes that are not of constitutional significance is in Parliament.

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[Mr David]

I am aware of all Professor Hix’s comments, and I was careful to say earlier that I did not agree with all his remarks. The point remains, however, that he is fundamentally opposed to the idea of having a multiplicity of referendums, for the reasons that he outlined to the Committee.

[Charlie Elphicke]

The hon. Gentleman will correct me if I am wrong, but I believe that Professor Hix also went on to say:

“I think there should have been a referendum on Maastricht, on Amsterdam, on Nice…on the Lisbon treaty”.

That is surely significant. The Bill is all about ensuring that, having been cheated of referendums on those treaties in the past, we can now have referendums on other matters, enabling the House to give greater consideration to them before passing away powers to Europe. The committee proposed in the hon. Gentleman’s new clause 9 would not achieve that.

[Mr David]

With all due respect, I must point out that the hon. Gentleman has made exactly the same point that the hon. Member for Stone (Mr Cash) has just made. I therefore give him the same answer: I was careful to say earlier that I did not agree with all of Professor Hix’s comments, but the central thesis that he presented to the European Scrutiny Committee was that there should be referendums on major constitutional issues, not on the minutiae of legislation as is proposed in the Bill, and this Bill is what we are now debating.

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[Mr David]

I was talking about judicial reviews. I cannot see how that fits into judicial reviews. With all due respect, I know the hon. Gentleman is a new Member, but he should follow the debate.

[Charlie Elphicke]

Will the hon. Gentleman give way?

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[Charlie Elphicke]

I see the Bill as a ground-breaking and essential force for good. It is important to understand that the context of the Bill is the reaction of many people throughout the land against the denial of a referendum on an EU constitution renamed and rebadged as the Lisbon treaty, but not changed.

It is a pleasure to follow the hon. Member for Llanelli (Nia Griffith), and a privilege to hear from a Member of Parliament who has not had the ire of constituents come down upon her head for not standing up for a referendum on Europe. I congratulate her on having a constituency which is clearly full of people who are delighted with the European Union and delighted never to be consulted by means of a referendum. It is a fine constituency that she has. No doubt she has the odd housing claim—

[Mr David]

Surely the hon. Gentleman recognises that people are not concerned about constitutional abstractions. They are concerned about their jobs, their children’s education and their health. Those are the issues that matter to people. If he does not realise that, he is not in this world.

[Charlie Elphicke]

The shadow Minister for Europe makes a fair point. In my constituency, yes, people’s prime concern is that Labour all but closed the hospital down and that we will be getting a new hospital. They are concerned that they lost jobs and money. They worry about how they will get by, and about the massive amount of borrowing and taxation. I entirely agree with the hon. Gentleman. My right hon. and hon. Friends in the Government are trying hard to sort out that difficult problem. That will take time.

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[Mr David]

Does the hon. Gentleman accept that precedent and the vagueness of the Bill tend to indicate that it is likely that there would be no judicial review, because the issue would be defined as a political decision?

[Charlie Elphicke]

With respect to the hon. Gentleman, I think that that is increasingly less likely to be the case.

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[Charlie Elphicke]

Perish the thought. Were such a Minister to make such a decision, my constituent would be able to challenge it and ensure that there was a more objective assessment.

[Mr David]

I hope that the hon. Member is not suggesting that the Bill might in some way bind future Parliaments.

[Charlie Elphicke]

The shadow Minister knows from our discussions on clause 18 that it is not possible to do that. Nevertheless, were he to become Minister in future and find the Act tiresome in holding back the floodgates of his Euro-enthusiasm and desire to embrace the greater Europe, he could dispense with the Bill by repealing it. However, he would take a political hit in doing so, because he would be taking away from the British people their right to have a say on the treaties that would follow. Therefore, he would have to be pretty forthright with the electorate in an election manifesto. If he was not, he would be open to the questions and ire of a large section of the British public who would regard that as an issue of concern.

Without further ado, it is right that I discuss new clause 9, which was tabled by the Leader of the Opposition, the shadow Foreign Secretary and the shadow Europe Minister. As far as I can see, it proposes a total watering down of everything in the Bill. I have been told by the Clerks that I am not allowed to describe it as a wrecking amendment, but I believe that I am allowed to say that it would, in my humble opinion, wreck the Bill, as far as its purpose and intent are concerned.

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[Charlie Elphicke]

I entirely agree. My hon. Friend makes a strong and forceful point.

I have another concern about new clause 9. My hon. Friend the Member for Harwich and North Essex, as I have said, fought valiantly for the people to have a say on the Maastricht treaty. If Maastricht were refought and the matter reconsidered, is it likely that out of the Opposition’s proposed committee a referendum would come forth? Many of us have some doubts about that. My right hon. Friend the Foreign Secretary in former times made the case that the Amsterdam and Nice treaties should also have been subject to a referendum. If we had had such a committee system, would there have been a referendum? Can the shadow Europe Minister, the hon. Member for Caerphilly (Mr David), tell us whether there would have been a referendum if his committee system had been operational?

[Mr David]

I do not have a retrospective crystal ball. We are looking to the future.

[Charlie Elphicke]

We come to the vexed question of Lisbon, when the push for a referendum reached its apogee and the people felt that they were outrageously cheated. If there were a Lisbon question once again, and if the facts were the same or similar, could the new clause 9 committee be relied upon to sit and, in making a determination, to ensure that we had a referendum? If a Government had said in their election manifesto, “We will have a referendum on this matter, the committee will sit, and we will make sure that it recommends a referendum,” would the committee then do so? Some people have grave doubts, because of the Whips’ system, and that is why the new clause should not be the preferred way.

The Bill’s measures on a referendum lock are the way forward. The amendments are all about breaking up that lock, and they would take us back to where we were with the Lisbon treaty, which was rammed through both Houses. The new clause is a concern for that reason. It would water down the referendum lock and leave us with significance tests writ large. Do we want that, or do we want to ensure that the British people have a referendum guarantee? That is very important.

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[Charlie Elphicke]

My hon. Friend makes a fair point.

[Mr David]

What has that got to do with the Bill?

[Charlie Elphicke]

That is a very important question. It shows the respect that the new Government have for our democratic process, for consulting the people and for taking bold steps in the national interest—not just bringing Britain back from the brink of bankruptcy, but ensuring that the British people have a say in referendums.

European Union Bill

Debate between Charlie Elphicke and Wayne David

Tuesday 11th January 2011 Commons Chamber

[Charlie Elphicke]

My hon. Friend is right. However, that is not a debate about the sovereignty of the UK Parliament. It is a concern that the EU has grown too much, extended too far, cost too much and intruded too much into our national life. It should cost less, intrude less and our relations with it should be reworked.

I underline again that I believe that clause 18 is a fair reflection and codification of the current legal position. I do not think that we need it, but I will wear it and live with it. I do not believe that we need to include extra stuff about sovereignty, which is not defined, and has not been defined in the amendments. The best thing we can do is be more straightforward about the need for fewer laws and less interference from the EU.

[Mr Wayne David (Caerphilly) (Lab)]

This Bill, and more particularly this clause, have had a long gestation. In November 2009, the then Leader of the Opposition promised that if his party won power there would be a United Kingdom sovereignty Act

“to make clear that ultimate authority stays in this country, in our Parliament.”

He told his party that this was

“not about Westminster striking down individual items of EU legislation”,

but that its intention would be to

“put Britain on a par with Germany.”

He said that the German constitutional court had consistently

“upheld that ultimate authority lies with the bodies established by the German constitution”.

No doubt some Conservative party activists had some reservations about the idea of Great Britain being the same as Germany; nevertheless his proposal was warmly received.