European Union (Approvals) Bill [Lords]

Chris Heaton-Harris Excerpts

Monday 4th February 2013 Commons Chamber

[Chris Heaton-Harris (Daventry) (Con)]

It is a pleasure to speak on a matter European where there is general agreement across the House and no time limit on the scoreboard. I shall go on for only a couple of hours, and I have already issued my press release saying I was “speaking to a packed Chamber.” As long as the few Members here keep quiet about it, I shall be fine.

I thought it might be wise to explain why it is important to discuss these matters. As the European Union Act 2011 has brought today’s debate forward on the basis that Parliament is required to pass an Act to approve the relatively low-level EU decisions in clause 1, it might look as though those decisions are of no consequence and do not need to be talked about. As both the Minister and the shadow Minister said, however, these are quite important matters, and some other member states find them amazingly important.

The German Federal Constitutional Court talked about article 352 of the treaty on the functioning of the European Union—the flexibility clause that has caused so much excitement in the past—on which these proposed decisions are based. It considered that article as part of its 2009 judgment on the constitutionality of German basic law and the Lisbon treaty when Germany was seeking to ratify the treaty. Specifically, it considered the question of whether the article, which gives the European Union sweeping legislative power, was compatible with democracy as enshrined within German basic law.

The court had already found that, to have democratic legitimacy, the powers of the EU must be rooted in a democratic decision of Germany’s national Parliament to confer those powers to the EU. The German court said:

“Article 352 TFEU not only establishes a competence of action for the European Union but at the same time relaxes the principle of conferral.”

That is the principle that powers must be conferred on the EU by member states under article 352. The court continued:

“action by the European Union in fields set out in the Treaties is intended to be possible if the Treaties have not provided the specific competence necessary…The provision can thus serve to create a competence which makes action on the European level possible in almost the entire area of application of the primary law”

across the EU treaties.

The court ruled that

“As regards the ban on transferring blanket empowerments or transferring Kompetenz”—

the competence for the EU to decide its own powers—

“the provision”—

that is, article 352—

“meets with constitutional objections because the newly worded provision makes it possible to substantially amend Treaty foundations of the European Union without the mandatory participation of legislative”—

national—

“bodies beyond the Member States’ executive powers”.

Essentially, the court said that the German Parliament would have to examine these matters again.

It is good that we are at least mimicking the German Parliament, albeit a few years later. We are here to discuss relatively important issues, as has the German Parliament. It could perhaps be argued that the German public may be a tiny tad less Eurosceptic, because their Parliament talks about these matters sensibly and regularly, and that they therefore may understand them slightly better.

[Jacob Rees-Mogg]

Will my hon. Friend give way?

[Chris Heaton-Harris]

I knew that I was going to provoke some reaction.

[Jacob Rees-Mogg]

I am very concerned that our speaking about these matters will make the country more pro-European. I want to encourage people in their Euroscepticism, so I think that we should perhaps talk about them less.

[Chris Heaton-Harris]

I think that all scepticism should be based on reality. We should talk about things with decent facts in front of us. This is a very good forum in which to discuss the facts, so let us do that.

The Bill has been produced as a result of the requirement of the excellent European Union Act 2011 to approve the three EU decisions that have already been mentioned. Under the Act, before a United Kingdom Minister can give final agreement in the Council of the European Union or the European Council to decisions proposed on the basis of the EU treaties being used in these cases, the proposed decisions must be approved by an Act of Parliament. That is what we are doing today. Although certain proposals based on the EU flexibility clause are exempt from the requirement for an approving Act of Parliament, those exemptions do not apply in these cases. I will happily go into the details if Members want to know what they are. The hon. Member for Blaenau Gwent (Nick Smith) is obviously keen to discuss them; perhaps we will do so afterwards, over a beer.

Under the EU treaties, EU decisions of this kind require unanimity in the Council or the European Council, which means that without the UK’s support they cannot be adopted, at least to cover all member states.

Members have already listed what the proposals would achieve. There is an EU regulation enabling the electronic rather than the printed version of the Official Journal to take EU legal effect. There is an EU decision that would set out the broad areas of work of the European Union Agency for Fundamental Rights between 2013 and 2017. There is also an EU decision on the number of European commissioners.

Although the first two proposals may not seem to be hugely important, they are based on the flexibility clause, which gives the EU sweeping powers to adopt laws when the treaties have not otherwise given it the power to legislate. It has been used to adopt significant EU measures in the past, such as the creation of the EU bail-out fund for non-eurozone member states. It was therefore thought to warrant parliamentary control, and that thoroughly good idea was introduced by the European Union Act.

The two proposals dealt with by clause 1 are being introduced under the flexibility clause: they are article 352 decisions—flexibility decisions. As I said, the flexibility clause has been used to co-ordinate national social security systems for the benefit of all member states’ nationals when moving within the EU; to provide for measures against the counterfeiting of euro coins that apply to member states outside the euro; and for the bail-out fund. We are talking about significant measures.

The Bill deals with the EU Official Journal, which is not exactly the most exciting document in the world but, as the hon. Member for Caerphilly (Wayne David) said, it contains striking elements of importance to the functioning of the single market, and to EU business and UK business in general. I have a small problem with it, because everything has to be translated into each of the official languages of the European Union. This is not a debate for now, but that approach means that everything that is said in the Official Journal has to be translated into, for example, Gaelic, and that is perhaps not the best use of money.

[Kelvin Hopkins (Luton North) (Lab)]

I was recently at a European Union conference where the Irish did speak in Gaelic, and I applaud them for doing so. The great linguistic creations of humankind should be preserved, and I am glad that the Irish are speaking in their own language and insisting that it be translated.

[Chris Heaton-Harris]

I completely understand the cultural point that the hon. Gentleman makes, but the European Central Bank uses only a couple of languages and many international institutions manage to cut down the number of languages they use, and they do so purely to keep costs down. The European Commission, the European Parliament and other European institutions do not do that and perhaps they should examine their approach. I merely wanted to make that point in relation to how difficult it is to produce the Official Journal for the very next day in written and electronic form. The Government have given political—not legally binding—agreement to the proposed regulation, with the Council supposedly ready to adopt it and the European Parliament having given its consent.

The Bill also deals with the proposed EU decision establishing a multi-annual work programme to cover 2013 to 2017 for the European Union Agency for Fundamental Rights. Again, one can give a parting shot, at least, about the growth in the number of these EU agencies; there is a huge number now and, as with commissioners, one at least has to go to each member state. In 2007, the EU adopted a regulation, based on the flexibility clause, establishing the agency, which is based in Vienna. Its objective has been outlined by the hon. Gentleman, but according to article 2 of its founding regulations it is to provide “assistance and expertise” to support member states in fully respecting fundamental rights. Under article 4 of its founding regulations, the agency’s activities include: gathering, analysing and disseminating information; publishing reports; and developing “a communication strategy” and a

“dialogue with civil society, in order to raise public awareness of fundamental rights”.

In 2013, the agency will receive a subsidy of €21.3 million from the EU budget, about half of which will be spent on staffing. According to article 5 of the agency’s founding regulation, the Council needs to adopt five-year multi-annual frameworks that set out

“thematic areas of the Agency’s activity, which must include the fight against racism, xenophobia and related intolerance”.

In addition to the multi-annual framework, the agency can respond to requests from the Council, the European Parliament or European Commission for it to conduct studies or produce conclusions on particular topics.

The draft Council decision before Parliament is the proposed multi-annual framework for the four years between 2013 and 2017, proposed by the European Commission on the basis of the flexibility clause. Under that decision, the thematic areas of the agency’s work in that time period will be: access to justice; victims of crime, including compensation for victims of crime; the information society, particularly respect for private life and the protection of personal data; Roma integration; judicial co-operation, except in criminal matters; the rights of the child; discrimination based on sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a national minority, property, birth, disability, age or sexual orientation; immigration and the integration of migrants, visa and border control and asylum; and racism, xenophobia and related intolerance. The Government have given political but not legally binding agreement to the proposed decision. The Council is apparently ready to adopt the proposal and the European Parliament has already given its consent.

That leaves us with the final measure, which is probably more controversial than was originally said: the retention of one European commissioner per member state under clause 2. The European commission consists of one national of each member state, so there are 27 commissioners and there will soon be 28 when Croatia comes in. Following great debate in the European Parliament and many other EU institutions and in the Parliaments of many member states, the treaty of Lisbon introduced the ratio of two thirds commissioners to member states. The logic was quite sensible: it was an attempt to stop bureaucracy growing out of control and to maintain some easier management of the bureaucracy from the top. The member states whose nationals would be commissioners would be decided

“on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States”.

The system would be agreed by unanimous decision at the European Council and each commissioner’s term would be five years.

Article 17(5) of the treaty on European Union states that the European Council, acting unanimously, can vary the size of the Commission from November 2014. As the Government’s explanatory notes to the Bill state in paragraph 12:

“when the Irish people voted ‘no’ in a referendum on Lisbon Treaty ratification in June 2008 the loss of a guaranteed”

Irish commissioner in every Commission

“emerged as a key concern. Without Irish ratification the Treaty could not enter into force, and as a result EU Heads of State and Government offered concessions to Ireland”.

One of the main concessions, offered in December 2008 and reiterated in June 2009, provided that when

“the Lisbon Treaty entered into force, a decision would be taken…to the effect that the Commission shall continue to include one national of each Member State”.

Those concessions seemed enough for the Irish people, who voted in the second referendum in October 2009 and approved that treaty.

The draft European Council decision based on article 17(5) has now been introduced and provides that from November 2014 onwards that the number of commissioners will continue to equal the number of member states. The draft decision states that it will be reviewed in advance of the appointment of the Commission due to take office in 2019, but for the decision to be altered there will need to be unanimity in the European Council, meaning that any member state can veto such a change. Having a European commissioner is a big deal for many, if not all, of the countries of the European Union, so it is highly unlikely that the change will ever be made. We will therefore continue to build on the number of European Commissioners.

[Bob Stewart]

Does that mean that every European Commissioner will need a department to be built to support them or will there be commissioners without portfolio?

[Chris Heaton-Harris]

I shall address that point in a moment, but yes, no commissioner is merely in charge of paper clips. Every commissioner needs a cabinet—a group of people around them from the top of the civil service—and normally brings an extra language with them, so a huge amount of cost and bureaucracy is associated with it.

The Government have given political but not legally binding agreement to the proposed decision, which is scheduled to be formally adopted by the European Council some time this year. Agreeing with the decision sits slightly oddly with something that the Prime Minister said in his speech on EU policy last week under the theme of competitiveness:

“Can we justify a Commission that gets ever larger?”

That is a fair question, considering that many other European bodies—the European Court of Auditors, for example—have an appointee from each member state, and work by having so many cooks making this particular broth. Appointments to EU agencies, as I have said, seem to be farmed out nearly one per member state, and it has almost got to the point where we need to have a serious discussion about how, if the European Commission is to work effectively, that can be done.

It is a particularly thorny issue, and warrants much more discussion. It is amazingly political. As I have said, it was one of the more important assurances gained by the Irish to secure a yes vote in their referendum. Everyone in Parliament will remember that the UK, along with four other large countries, had two commissioners, but we gave up our second commissioner with the enlargement of the EU in 2004. It is de rigueur in the EU for each country that comes into the club to get a commissioner—a seat at the main decision-making table in Europe. While that is a fine principle, it brings with it, as my hon. Friend the Member for Beckenham (Bob Stewart) suggested, some powers to guide and oversee, but also a mass of bureaucracy. I believe that that is one reason why my right hon. Friend the Prime Minister raised that question in his excellent speech at Bloomberg the other week.

One does not have to be pro-European or Eurosceptic to see that the European Commission has become unwieldy in size, and while this might not be the time to sort out the issue for good, it would be a good opportunity to raise this thorny issue for discussion with our European counterparts. With many new accessions down the line, it seems that this is an opportunity missed. Certainly, it would be an interesting discussion to have at roughly the same time that the multi-annual financial framework is decided. I wonder, if we had a reasonable debate on the subject, whether proposals at least to trim the Commission’s total budget for the next seven years could be achieved, even if it is not possible to trim or cap the number of commissioners.

I conclude where I began. It is really good to see some proper scrutiny as a result of the European Union Act 2011. I thank the Government for introducing that excellent piece of legislation and for sticking to both the letter and the spirit of it.

--- Later in debate ---

[Mr Cash]

I did not say that. What I said was that the referendum that the Prime Minister has announced goes outside the provisions of the 2011 Act, and I am glad to say that that demonstrates that, where there is fundamental change, he recognises—with some help from his friends— that a referendum is a requirement, even though it is not taking place as early as some of us would like.

[Chris Heaton-Harris]

I thank my right hon. Friend—

[Mr Cash]

Not yet.

[Chris Heaton-Harris]

He is not yet a right hon. Gentleman, but he might be soon. I thank him for giving way. Does he recognise that, while the 2011 Act was designed to stop powers being sucked away from the UK at the request of the European Union but without much say from this place, the Prime Minister’s referendum is about a new settlement that may require powers to be returned from the EU, so they are slightly different things?

[Mr Cash]

That is true, but I maintain that the key question is whether the requirements contained in the five principles, which include repatriation and the primacy of national Parliaments—on which the European Scrutiny Committee has insisted on a three-hour debate on the Floor of the House because of the implications for economic governance—are all part and parcel of what has been going wrong in the European Union. I welcome the idea of the referendum, but with the caveat that I do not think the timing is right, although that is a separate question.

Turning to article 352 of the treaty for the functioning of the European Union, my hon. Friend made an excellent speech, as did my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) and the hon. Member for Luton North (Kelvin Hopkins). They are all on the European Scrutiny Committee and very familiar with the intricacies of the arguments, although they are not that intricate. In fact, the provisions of article 352 derive, in effect, from article 308. I have now served on the ESC for 27 years, and those who have been around for as long as I have—