European Union Bill

David Lidington Excerpts

Tuesday 7th December 2010 Commons Chamber

[The Minister for Europe (Mr David Lidington)]

May I remind the hon. Gentleman that since the adoption of the proposals in the Wright report, responsibility for arranging those debates on the European Union has passed from the Government to the Backbench Business Committee? It is for that Committee to make that provision from the 31 days available to it.

[Mike Gapes]

The Government are hiding behind the words in the Wright Committee’s report. The reality is that if the Government wished to, and they thought that it was sufficiently important, we could have a debate in Government time on the Floor of the House, as we have always done, on the matters to be discussed in 10 days’ time at the European Council meeting, which comes at a crucial time for the future of this country and the EU. The issues range from the crises in Greece and Ireland, to climate change and the Cancun meeting, and what is happening with regard to China and its role in the world. Not least is what will happen over the coming decades with regard to migration policy and the impact that global changes will have on the people of north Africa and elsewhere who might wish to migrate to the EU. Those are the issues that we should be discussing.

We have had a lot of comments recently about Russia, although I will not depart from the subject of debate today. Frankly, the relationship between the EU and Russia is a complete shambles. There is no agreed approach on energy policy or on how we deal with human rights abuses and the suppression of democratic opposition in Russia. Why do we not have a debate about the role of the EU there? These are the vital questions, but instead of discussing them we are hiding behind the minutiae of a proposal, which if it is implemented will, as the hon. Member for Stone pointed out, put power not in the hands of a sovereign Parliament and Members of Parliament—elected representatives—but more and more in the hands of the judges and the judicial authorities, who will increasingly interfere in a political way. They will make the decisions about what matters are to be decided, not the elected people who represent the people of this country.

That is a fundamental matter, yet the Government are slipping this measure through, so that, with all the proposals in schedule 1, clause 18 and elsewhere, we will end up with the judicial system, not the political system, determining how this country is run. That is a fundamental decision—a fundamental matter—yet it has been slipped into the Bill as though it were a safeguard against the European Union taking away sovereignty. Actually, the proposal gives more power to the judges and to the legal system to take away parliamentary sovereignty. That is nothing to do with the European Union; Ministers themselves have determined those matters.

--- Later in debate ---

[Jacob Rees-Mogg]

rose—

[Mr Lidington]

May I make it clear that I nodded to indicate that I would respond to my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) in my concluding remarks?

[Jacob Rees-Mogg]

I would not wish to anticipate the excitement that we all hold for the Minister’s speech on that crucial point.

The Bill is important and broadly good. Let us be absolutely clear that there are many of us on the Government Benches, and on the Opposition Benches, who want powers to be brought back from the European Union. The European Union is a state in decay. It is rotten at its very core. It is corrupt. It is dishonest. It is bullying. It has a currency that is failing as I speak, a currency that is bankrupting several of its nations and putting ruinous conditions on Ireland, Portugal and Greece—and the Spanish and the Italians will follow.

The European Union has not been in British interests. It is not the common market that people expected it to be and we need root-and-branch reform. I know that we are in a coalition and that we have made concessions to our coalition partners, as they have made concessions to us. They have not yet realised how dreadful the European Union is, but as one hon. Member said to me earlier, “The more they get to know about it the worse they will know that it is.”

Let us look in detail at this Bill and at why it is welcome as far as it goes. The element on the referendum is very important and I was delighted that Vernon Bogdanor, the extremely distinguished constitutional historian, quoted John Locke in his evidence to the European Scrutiny Committee. My delight is all the greater because John Locke grew up in Belluton, which, as right hon. and hon. Members know, is a village in North East Somerset. John Locke said in his “Second Treatise of Government”:

“The Legislative cannot transfer the power of making laws to any other hands. For it being but a delegated power from the People, they who have it cannot pass it to others”.

That is the essence of our constitution.

People talk learnedly about the sovereignty of Parliament, but what do they really mean and where does it come from? I think this was all settled in the 17th century. There were two choices: one was that sovereignty came from God and was given to the King, and the other was that it came from the people and moved upwards and that it was borrowed by Parliament for a period. The sovereignty of Parliament is a great thing. We should bear in mind that the Supreme Court is established by Parliament, as are the very monarchy and the laws of succession. That precious sovereignty is ours not because we are the great and good of the land, or because we sit on green Benches in a fine Palace, but because the British people have given it to us for a period, and we may not bind it or give it away. We may not give it to Europe or the United Nations; only the British people can do that, and they must have a referendum lock on it.

We heard a characteristically well-phrased speech from the hon. Member for Rhondda (Chris Bryant). He was concerned that the Bill would not provide a lock because it could be repealed by subsequent Parliaments. That is true, of course, but a lock can be unlocked if one has the right key, and the key will be the considerable political capital that would be expended by any Government who wished to remove, dilute or give away the power of the sovereign British people. So, the lock is worth while. There has been an interesting development in law about constitutional Acts having a higher standing than ordinary Acts, and the European Communities Act 1972 is considered to be such an Act, as Lord Laws mentioned in the Thoburn case. If that is right, I hope we will get some guidance from Her Majesty’s Government on whether the Bill would be a constitutional Act that could not be subject simply to implied repeal but would have to be repealed directly. The referendum lock is important and beneficial even though it is not enough in terms of our relationship with the EU.

Clause 18 affirms the sovereignty of Parliament and provides that we allow European law to take effect only because of the 1972 European Communities Act. I welcome the clause, but it was a matter of great dispute among much more learned people than me during the European Scrutiny Committee’s deliberations. I welcome it because of the nature of our constitution, which evolves without things necessarily being written down. We discussed this issue during Committee deliberations on the Fixed-Term Parliaments Bill. There are things that the sovereign could do by royal prerogative that are so unlikely and improbable, because they have not been done for so long, that they have fallen into disuse and effective decay. My worry is that without this clause, the 1972 Act might be viewed as one that cannot be amended or repealed and that we might get to a stage, perhaps in 50 years’ time, when the courts hold that it is so important that it is of a different order of magnitude than any other statute.

Clause 18 turns the clock back, which is rather gratifying because we are told that the Tories never turn the clock back. Evelyn Waugh said that he voted Tory all his life expecting them to turn the clock back but that they did not put it back 10 minutes. On this occasion, we are putting it back by 38 years; we are resetting the constitutional position to where everyone would have known it was in 1972. I think that is important, even though I thoroughly accept the point made by many right hon. and hon. Members that it is not a complete statement of the whole theory of the sovereignty of Parliament. I hope that would be unnecessary because the sovereignty of Parliament comes from the British people and cannot be taken away, however much one says so.

--- Later in debate ---

[The Minister for Europe (Mr David Lidington)]

I think that the brevity of the speech by the Labour spokesman, the hon. Member for Caerphilly (Mr David), is indicative of the absence of content in the Opposition’s case today. We have heard from no less than the Leader of the Opposition that he regards his policies as a blank sheet of paper, and that is what we have heard from the hon. Gentleman this evening.

Like the hon. Gentleman, I want to pay tribute to every right hon. and hon. Member who has taken part in the debate, and I am glad that so many Members, on both sides of the House, have managed to participate. I want to respond briefly to a number of specific issues, and then move on to the questions about clause 18 and the referendum lock, which have occupied most of the debate. I might be unable to cover all the ground today, but I will look forward with relish to the five days of debate on the Bill on the Floor of the House—in Committee of the whole House and on Third Reading—in the new year.

My hon. Friends the Members for Harwich and North Essex (Mr Jenkin) and for Daventry (Chris Heaton-Harris) asked about the commencement of the Bill and whether it would take effect in the lifetime of this Parliament. As they know, the Government have made it clear, as a policy commitment, that we are not going to agree to any treaty change or new treaty that transfers additional powers or competences to the European Union for the duration of this Parliament. That is a policy commitment. Clause 21 provides for the commencement of the whole of part 3, including clause 18, on Royal Assent. The rest of the Bill comes

“into force on such day as the Secretary of State may…appoint.”

To avoid any misunderstanding, however, I want to make it clear that the Government intend to use the provisions of the Bill for any future treaty change. The House will know that one such change is being contemplated now. We also expect to use the provisions on increased parliamentary control during the lifetime of the Parliament, because we expect that there will be some proposals, possibly including an agreement on a new multi-annual financial framework, that will trigger the need for an Act of Parliament under the terms of the Bill.

My hon. Friend the Member for Daventry also asked me whether it would be possible for a European prosecutor to be built up bit by bit, thereby avoiding a referendum. The Bill is very clear on that. The United Kingdom could not take part in either a European public prosecutor established under article 86.1 of the treaty or the extension of the powers of such a prosecutor, if set up, under article 86.4 without a referendum. As the treaty provides a specific treaty base for the establishment of a European public prosecutor, that action could not be taken on a different treaty base.

My hon. Friend the Member for Witham (Priti Patel) asked whether there would be any way for the European Union to prevent us from holding a referendum in this country. The answer to that question is no. There is nothing in the treaties that puts any constraints on the way in which the United Kingdom or any other member state decides how to cast its vote on a treaty amendment or a treaty change. The Bill sets out more stringent requirements before a British Minister can assent to something on behalf of this country at the European level. That is a matter for national law, not for European law.

Let me turn to the points made in particular by my hon. Friend the Member for Stone (Mr Cash), but also by a number of other hon. Ladies and Gentlemen, about clause 18. I want to be absolutely plain that the Government are not attempting through clause 18 to address the wider constitutional issue of the sovereignty of Parliament in the way alluded to by my hon. Friend the Member for Esher and Walton (Mr Raab) when he referred to the European convention on human rights and the Human Rights Act 1998, for example—or the sovereignty of Parliament and what that means in the context of the devolution settlements for Scotland, Wales and Northern Ireland.

What clause 18 does is more specific than that—this point was referred to by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). Clause 18 deals with the way in which European law, including judgments of the European Court of Justice, is given effect in this country. The clause asserts, for the first time in statutory form, what is already the position in common law as a consequence of decisions by various judges in leading cases: that there is only one reason why European law has effect in this country, and one reason too why, where the two clash, European law is given primacy over United Kingdom law, and that is because Acts of Parliament—notably, but not exclusively, the European Communities Act 1972—provide for such effect to be given to European law.

[Mr Cash]

Does my hon. Friend agree that the very fact that this provision is being included in statute inevitably means that the courts will have the opportunity to apply the common law principle and that therefore he cannot, by a speech in the House of Commons, restrict the manner in which the courts subsequently interpret the provision?

[Mr Lidington]

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

[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.

[Mr Redwood]

Will the Minister tell us whether he can conceive of any circumstances in which this Government would offer a referendum on any aspect of Europe?

[Mr Lidington]

I thought I had made that clear—[Interruption.] The Government—[Interruption.]

[Mr Speaker]

Order. There is far too much noise from the Opposition Benches. I have heard the question; I want to hear the Minister’s answer.

[Mr Lidington]

The Government have made it clear that we would not assent to a transfer of competence or powers during the lifetime of this Parliament. It follows, therefore, that we do not expect a referendum in the lifetime of this Parliament, but unforeseen events might arise. The Bill, once it becomes law, will be binding on this Government as well as on any future Administration, whatever circumstances might arise.

[Mr David]

Will the Minister give way?

[Mr Lidington]

No, I want to deal with the objections and criticisms that have been made to and of the referendum lock. Serious questions have been asked on both sides during the debate and I want to respond to them. One set of objections came from the hon. Member for Rhondda (Chris Bryant), who made it clear that he objected to all referendums as a matter of principle—

[Chris Bryant]

No, I did not.

[Mr Lidington]

He is now saying that he does not, and I am happy to hear him qualify his earlier remarks. The problem with such an argument is that it ignores two things. First, it underestimates the depth of the mistrust and disaffection that people in this country now feel towards the way in which powers have been transferred from the United Kingdom to the European Union without the people ever being asked for their agreement. It ill becomes the Labour party in particular to offer criticism on this score when the prime reason for such disaffection over the last few years has been that party’s refusal, when in government and with a majority in this House, to agree to the people having a referendum, which had been promised at the general election. This was a promise on which Labour was happy to renege when it came into office.

The argument against referendums on principle ignores the fact that the practice has grown up in the last 13 years of holding referendums on major constitutional changes. We have had them in Scotland, Wales, Northern Ireland, Greater London and even in the north-east of England, and I think that people now have a reasonable expectation that they will be invited to have their say if their basic constitutional rights are being affected by legislation proposed by Ministers.

[Mr David]

rose—

[Mr Lidington]

The second line of criticism was rather more subtle than that presented by the hon. Member for Rhondda. It was articulated by a number of colleagues, including my hon. Friend the Member for Richmond Park (Zac Goldsmith), who argued that the Bill left too much discretion to Ministers. My hon. Friends the Members for North West Leicestershire (Andrew Bridgen) and for Witham echoed that argument.

My response is that a number of options were available to us. One was to draft a test phrased in fairly general terms, saying that an important measure would require a referendum, but leaving it to the Government of the day to determine whether that test had been met. We took the view that that would have left far too much discretionary power in the hands of Ministers. What we have done instead is to introduce a Bill that quite deliberately limits ministerial discretion by specifying those changes that would trigger a referendum and also those limited categories of treaty change that would be exempt from the referendum requirement.

Several hon. Friends talked about the significance test, which applies only to a change brought forward under the simplified revision procedure. Within that category of treaty change, it applies only if the sole reason for its falling within the referendum lock is that it falls under clause 4(1)(i) or (j). Any proposal that is covered by clause 4(1)(a) to (h) or clause 4(1)(k) to (m) automatically attracts a referendum. In reply to a direct question put to me, yes, if this Bill had been law at the time, the Lisbon treaty negotiated under the ordinary rules of procedure would have required a referendum before it had been ratified. I only wish we had had such a provision on the statute book when the Labour party betrayed this country’s interests and reneged on the promises it had given.

My hon. Friend the Member for Hertsmere (Mr Clappison) argued that the significance was subject only to judicial review and not to Parliament. Of course it is true that any Executive decision by any Minister is liable to judicial review. I dispute his argument, however. Irrespective of whether the significance test applies and whether a referendum is required, any treaty change, however minor, will require an Act of Parliament for its ratification. Such an Act will be subject to full debate and scrutiny and will be capable of amendment in whatever way Parliament wishes.

[Mr David]

rose—

[Mr Lidington]

Through this Bill we are making the Government more accountable to the British people for what they do in Europe. We are ensuring that any new proposal to take powers from this place to Brussels will involve the people in having the final say. I commend the Bill to the House.

Question put, That the amendment be made.