European Union Bill
David Lidington Excerpts(13 years, 3 months ago)
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The Minister for Europe (Mr David Lidington)
The first set of clauses under consideration in Committee this afternoon relate to the transitional protocol on Members of the European Parliament, which is covered in clauses 15, 16 and 17, and schedule 2. In sum, the provisions allow for a technical change that permits a temporary increase in the number of MEPs, including one additional Member from the UK.
It might be helpful to give some background to the protocol before turning to the detail on the clauses, so that colleagues on both sides of the Committee understand the context of our proposals. The European Union treaties, as amended by the treaty of Lisbon, provide for the allocation of 18 additional MEPs to 12 member states, including one additional MEP for the UK. The treaties also provide that the number of MEPs from Germany should be reduced by three. However, the treaty of the European Union, as amended by Lisbon, states that the European Parliament shall not exceed 750 members in number, plus the President, which makes a total of 751, and that no single member state will be allocated more than 96 seats. Before the Lisbon treaty, Germany had 99 MEPs. Its allocation has therefore been reduced to 96 seats to fit within the maximum number permitted by the treaties.
The TEU also states that the European Council shall adopt a decision establishing the composition of the European Parliament. Article 2 of protocol 36 to the treaties—on transitional provisions—reaffirms that and states that the decision
“shall be adopted in good time before the 2009 European Parliament elections”.
However, as the Committee will be aware, given the Irish rejection of the Lisbon treaty in its first referendum on the matter and the additional guarantees sought by Ireland in 2009 in the wake of that, there was a delay in the ratification of the Lisbon treaty by all member states—personally, I wish it had been more than a delay—and therefore a delay to the treaty entering into force.
As a result, and contrary to the relevant provision in the TEU, the 2009 European elections actually took place before any European Council decision was adopted. Those elections were therefore held in accordance with the provisions of the Nice treaty, under which the European Parliament comprises 736 MEPs.
The European Council had already agreed what to do in that situation. Back in December 2008, it agreed that, should the Lisbon treaty come into force after the 2009 European parliamentary elections, a transitional protocol would be agreed to permit those member states that gained MEPs as a result of the Lisbon treaty to elect their additional MEPs during the current European parliamentary term. This would mean that they would not have to wait until the next round of European parliamentary elections in 2014, when those changes would come into force automatically, in accordance with the treaty of Lisbon.
The arrival of 18 additional MEPs during the 2009-14 parliamentary term increases the number from 736 to 754—three more than the maximum permitted by the EU treaties, and transitional arrangements are therefore needed to enable the number of MEPs to exceed temporarily the limit of 751 laid down in article 14(2) of the treaty on European Union.
Mrs Anne Main (St Albans) (Con)
I thank the Minister for giving way on the statistics about the number of MEPs. Does he have any figures showing how much these additional MEPs are costing us while we wait for the correct number to be arrived at?
Mr Lidington
I am glad to be able to tell my hon. Friend that the cost of these additional MEPs will be provided for out of the European Parliament’s budget; no additional contribution is required from the United Kingdom or any other member state. That is perfectly right, and the European Parliament will already have made provision in its budget for these additional costs.
The European Council also agreed that the transitional protocol should provide that the three German MEPs who would no longer have a seat in the European Parliament would not have to stand down in the middle of their term of office, because it is not possible under the treaties to curtail an MEP’s mandate during a parliamentary term. In order to make the required transitional changes, the member states of the EU agreed to a transitional protocol at a limited intergovernmental conference on 23 June 2010, under the ordinary revision procedure. Although the ORP was used, the European Parliament had previously agreed not to convene a convention of representatives of the EU institutions, member state Governments and national Parliaments, because the European Parliament recognised the very limited scope of the proposed treaty change.
The IGC was convened in the margin of the Conference of Permanent Representatives—known as COREPER—with the agreement of Ministers of each member state. IGCs are occasionally convened in COREPER meetings for single-issue matters, such as the approval of appointments of judges to the Court of Justice, and one was used on this occasion because the treaty change in question concerned a single, time-bound issue already agreed by the Heads of Government and Heads of State at the European Council, rather than a more substantial renegotiation or re-opening of the EU’s treaties. I then announced to the House via a written ministerial statement on 6 July last year, at column 7WS, that the transitional protocol had been agreed.
As with any treaty change, the protocol now requires that all member states ratify it before it can enter into force. As I have already made clear in our earlier debates in Committee, it is for each member state, when it comes to any treaty amendment, to determine whether and how it carries out its own national procedures for approval and ratification. In the United Kingdom at present, any amendment to the EU treaties conducted under the ordinary revision procedure—as was the case here—can be ratified by the UK only if it is approved by Act of Parliament. This is set out in section 5 of the European Union (Amendment) Act 2008.
Parliamentary approval of the transitional protocol is therefore required by Act before the protocol can be ratified in the UK. Clause 15 of the Bill therefore provides for this parliamentary approval. Subject to Parliament’s approval, the legislation will of course require that any treaty change conducted under either the ORP or the simplified revision procedure would in future need parliamentary approval by Act. Since what we are debating is a technical change to the treaty that relates merely to the number of MEPs, and does not transfer any power or competence from the UK to the EU, it does not meet the requirements to hold a referendum. However, as the provisions in the 2008 Act require approval by Act of Parliament, we have decided to use them to seek the approval of Parliament. Section 5 of the 2008 Act would subsequently be repealed, as a consequence of clause 14, and replaced by the provisions in clauses 2 and 3 in any future decisions.
It is important to note that the additional MEPs are entitled to take their seats following the next European parliamentary elections in 2014 in any case, regardless of what the Committee determines this afternoon. The transitional protocol simply means that those people will be able to do that earlier than 2014, because the treaties would have provided for their election in 2009 had the Lisbon treaty been in force then, as was anticipated by the then Heads of Government and Heads of State. At the 2014 European parliamentary elections the additional MEPs, along with every other MEP, will be elected in the usual way, according to each member state’s practice. As none of the additional MEPs could take up their places until every member state had ratified the transitional protocol, the Government have continued with our predecessor’s approach, and we now seek Parliament’s approval to ratify this treaty change.
The protocol states that it will enter into force on 1 December 2010, provided that all the instruments of ratification have been deposited. Failing that, the protocol would enter into force on the first day of the month after the last member state ratifying the protocol had done so. Clearly we have passed that somewhat ambitious deadline already, and it is for each member state to decide whether, how and when to approve ratification. However, it is our intention to ratify as soon as possible, subject to Parliament’s approval. As I have made clear, we are discussing a short-term transitional measure, until the next European parliamentary elections, which are due to take place in June 2014. It does not transfer power or competence, and so does not require the people’s consent in a referendum, but it is a treaty change. As such, it requires the approval of this Parliament through primary legislation. I hope that members of the Committee will be able to approve this temporary measure.
Emma Reynolds (Wolverhampton North East) (Lab)
Let me say at the outset what a pleasure it is again to be debating the Bill with the Minister and the select group of Members currently in the Chamber. We welcome the provisions that the Government have set out to give parliamentary approval to the allocation of the UK’s extra seat in the European Parliament. Having worked in the European Parliament for some time, I know the important role that it plays, but I would like to ask the Minister some questions of clarification.
Can the Minister clarify why the so-called Sainte-Laguë process was chosen to allocate the UK’s extra seat in the European Parliament to the west midlands region? I understand that the method was set out in the Electoral Commission report in October last year. What consultation took place between the Government and the Electoral Commission on choosing that method? Was a joint decision made, or was it the decision of the commission or the Government? Did the Government consider any other method to allocate the extra seat, and if so, which? Which methods are being used by other member states to allocate extra seats?
The explanatory note says that the west midlands had the lowest number of electors per MP according to the current electoral register, and on that basis the decision was made to allocate the extra seat. It is perhaps ironic that, although the west midlands will be given one extra MEP, owing to the Government’s plans it is set to lose several MPs. Which electoral register did the Government consider when making their decision: the one from December last year or the year before? Can the Minister tell the Committee what progress other member states are making on ratifying the protocol to increase the number of MEPs, and when he expects the UK to take up its extra seat in the European Parliament?
Mr MacShane
Might my hon. Friend possibly accept that on this occasion I really must bow to the Chair and sit down?
Mr Lidington
A number of the questions posed by the hon. Member for Wolverhampton North East (Emma Reynolds) invited me to move from clause 15 to clauses 16 and 17. If you are willing to allow me to stray on to that territory, Mr Hoyle, I shall be able to reply to her questions now and perhaps speak more formally later when we deal with those clauses; otherwise I shall have to delay my responses to her.
The right hon. Member for Rotherham (Mr MacShane) made his points very forcefully. I agree with him that there is a disconnection between decisions made by national legislatures in just about every member state and decisions made in the European Parliament—or in Europe more generally—on behalf of those countries, and I think it important for us to consider how to remedy that democratic deficit. However, I do not want to be drawn into a detailed discussion about the treaty changes which would need to be debated and negotiated to produce the outcome that the right hon. Gentleman seeks, and which would have to command unanimous agreement among all member states and, indeed, the European Parliament itself.
Let me say two things about the European Parliament. First, it does an important job. Whatever view I, or any other Member present, may take on whether or not it should have particular powers, my contacts with MEPs of all parties have given me the impression that, for the most part, they take their duties of scrutinising and seeking to amend European legislation very seriously. As a Government and as a Parliament, we need to have regard to and engage consistently with MEPs if we are to pursue successfully the national objectives of the United Kingdom through the European Union.
Secondly, I agree with the right hon. Gentleman that there is an unhealthy democratic gap between the way in which the European Parliament operates and the— in my opinion—correct belief held by most national legislatures that they are more directly accountable to the voters in their respective countries than are MEPs. That is, perhaps, particularly true in the United Kingdom, where there is a significant difference in the method of election: while MEPs are elected through a regional party list system, we in the House of Commons are elected to single-Member constituencies. The right hon. Gentleman has sketched what has the makings of a fruitful debate in the months and years to come.
Let me now deal with the various detailed points made by, in particular, the hon. Member for Wolverhampton North East. While I am tempted to deal at length on differences between the Sainte-Laguë and d’Hondt methods, that would probably reduce the number of Members attending the debate even further. I am happy to offer a seminar. [Interruption.] My hon. Friend the Member for Stone (Mr Cash) indicates that he does not wish to be drawn into a debate about the respective merits of Sainte-Laguë and d’Hondt.
Mr MacShane
Let us leave Sainte-Laguë and d’Hondt. Is the Minister in favour of the alternative vote? That is what the Committee and the nation want to know.
Mr Lidington
No.
The answer to the question asked by the hon. Member for Wolverhampton North East is that the Electoral Commission decided to use the Sainte-Laguë method following various consultations that it had carried out. There is a debate about whether we should move to that method when it comes to deciding how to elect Members of the European Parliament, but that is a matter for a future occasion.
Emma Reynolds
Will the Minister clarify whether the d’Hondt system was considered by the Electoral Commission in allocating the extra seat?
Mr Lidington
The hon. Lady knows that the Electoral Commission is completely independent of the Government, so that question should properly be addressed to the chairman and the chief executive of the commission.
The history of this process is that on 22 September 2010 the Minister with responsibility for political and constitutional reform, the Parliamentary Secretary, Cabinet Office, my hon. Friend the Member for Forest of Dean (Mr Harper), wrote on behalf of my right hon. Friend the Deputy Prime Minister to the chair of the commission formally requesting a recommendation under section 3 of the European Parliament (Representation) Act 2003 as to which of the 12 UK electoral regions, for the purposes of European parliamentary elections, should receive the UK’s additional MEP seat. UK MEPs are, of course, elected on a regional basis from 12 electoral regions—Northern Ireland, Scotland, Wales and nine regions in England. In making the recommendation for the distribution of any Member of the European Parliament, the Electoral Commission is obliged to ensure that each electoral region is allocated at least three MEPs and that the ratio of registered electors to MEPs is, as far as possible, the same in each electoral region. The Electoral Commission process is independent of Government and, importantly, the Government are bound to accept its recommendation.
In allocating the seat, the Electoral Commission applied the Sainte-Laguë method, as the hon. Lady has said, following previous consultation exercises it had undertaken on the method to be used. It has indicated that the system has the advantage of enabling it to adhere to its statutory requirement that the ratio of registered electors to MEPs is as nearly as possible the same in each electoral region. On 26 October 2010, the Electoral Commission recommended that the west midlands should be allocated the additional MEP provided for in the transitional protocol, and published a report to that effect, a copy of which was placed in the Library. My hon. Friend the Minister with responsibility for political and constitutional reform confirmed the commission’s decision to the House via a written ministerial statement on 26 October 2010—column 7WS in Hansard. Let me place on the record now, as my hon. Friend did at the time, the Government’s thanks to the commission for its work in producing that recommendation.
The hon. Lady is right that population trends and electoral numbers change over time. The answer to her direct question is that the December 2009 electoral register was used in making the calculation and the recommendation that the west midlands should receive the additional seat, but I want to make it clear to the Committee today, as the Government have stated publicly on previous occasions, that if it became likely while the Bill remained under consideration by either House that any changes to electoral registration data would result in a different UK electoral region gaining the seat, we would seek a revised recommendation from the Electoral Commission. We have acted on the basis of the December 2009 register, but if the evidence of new registers suggests that a region other than the west midlands should get the seat, we would revert to the commission for a further recommendation.
Mr Wayne David (Caerphilly) (Lab)
We are, of course, in a rather unusual situation with European Parliament elections, in that Gibraltar is included, and Gibraltar shares Members of the European Parliament with the south-west of England. What methods for determining the electors in Gibraltar have been used in the calculations?
Mr Lidington
I think that is a matter for the Electoral Commission. It advises that it has used the Sainte-Laguë method throughout, and in comparing electorates for each region it would have taken the Gibraltar electorate into account when making its calculation for the south-west. I undertake to double-check what I have just told the hon. Gentleman; if I have inadvertently led him up the garden path, I will of course correct that on the record, but I have confidence that the Electoral Commission has done its job properly.
Mrs Main
I am listening with profound interest to my hon. Friend’s remarks. Does he share my concern that, to the public outside, seemingly topping up the gravy train rather than culling it—perhaps expanding the size of the electorate for existing MEPs rather than increasing the number of MEPs—might not, in today’s environment of cuts, be met with a degree of approval?
Mr Lidington
The changes to the distribution of MEPs between member states arose from new calculations about the populations of the different member states. Just as we have boundary reviews from time to time in the United Kingdom to reflect the growth of electorates in some places and the reduction in others, it is right that such a process should take place at the European level.
My hon. Friend makes a more fundamental point in her intervention, in implicitly arguing that there should be a significant overall reduction in the number of European legislators. I understand that argument, and I am certainly very much in the camp of those who argue that the European Parliament, like every other European Union institution, should be looking to reduce its expenditure rather than expect it automatically to increase. I would say just one word of caution to my hon. Friend, though. One consequence of reducing the number of MEPs overall would be either that the representation of the smallest member states would disappear completely or, if they were allowed a guaranteed minimum number of MEPs, that they would be disproportionately over-represented compared with the larger member states. The larger member states, such as ourselves, would suffer the greatest cuts in our representation if the smallest were protected, and potentially see a reduction in our influence over the European Parliament.
Kelvin Hopkins
It has just struck me that my right hon. Friend the Member for Rotherham (Mr MacShane) suggested a two-house European Parliament. I am not an enthusiast for that, but in those circumstances could you not have an arrangement similar to that for—
The Chairman of Ways and Means (Mr Lindsay Hoyle)
Order. We have already ruled on that question.
Mr Lidington
I think the hon. Member for Luton North (Kelvin Hopkins) is demonstrating that he has political ambitions as yet unfulfilled.
I can now assure the hon. Member for Caerphilly (Mr David) that expert advice has reached me confirming that my trust in the Electoral Commission was well placed and that the electorate of Gibraltar were indeed considered in the context of the south-west region and assessed in accordance with the Sainte-Laguë system.
The hon. Member for Wolverhampton North East asked me about the different options for selecting the additional MEPs. The protocol allows member states to choose between three options. First, member states could use the 2009 European parliamentary election results and elect the additional MEPs as if the additional seats had existed at the time of those 2009 elections. That is the method that we have chosen.
The second option would be to hold a by-election. In this case, that would mean holding a by-election in the west midlands region for a single MEP at an estimated cost of perhaps £10 million. The third option would be for member states to appoint temporarily one of their national parliamentarians to become the new MEP for the remainder of the current European parliamentary term. [Interruption.] The hon. Member for Wolverhampton North East indicates that the hon. Member for Luton North or perhaps the right hon. Member for Rotherham (Mr MacShane) might be candidates in such circumstances.
The previous Government decided in February 2010 that the UK’s additional MEP would be elected by reference to the results of the most recent European parliamentary elections, as though the additional seat had existed at that time. The present Government have continued our predecessor’s chosen approach, and the clauses are framed in that way. That is also the method used by the great majority of other member states that are gaining MEPs. In fact, some member states elected additional MEPs during the 2009 elections on the basis that they could take up their seats only once the transitional protocol had come into force.
Our chosen method avoids the delay and the cost associated with a by-election and would allow us to return the additional MEP as soon as possible after the approval of the relevant provision in the Bill. It also has the merit of being exactly the same method that we use in any case to fill a vacant British seat in the European Parliament after the death or resignation of an elected MEP. Again, these clauses and schedule 2 would apply only until the additional seat had been filled and until the next European parliamentary election, which is scheduled for 2014.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16 ordered to stand part of the Bill.
Clause 17
Election of additional MEP
Question proposed, That the clause stand part of the Bill.
Mr David
May I briefly ask the Minister an additional question on the extra MEP, simply to gain some broader context? He mentions correctly that other member states have additional MEPs. Of course, as he points out, all member states must agree to adopt the necessary legislative procedures to bring about such MEPs, but what is the time scale? We are dealing with the situation now. I wonder whether other EU member states have had an opportunity to alter their legislation to bring out such MEPs. Are we waiting for them to do so? What is the time scale? That obviously has a bearing on when the MEP from the west midlands can take her seat.
Mr Lidington
I am grateful to the hon. Gentleman, and I apologise for having overlooked that question when it came from the hon. Member for Wolverhampton North East (Emma Reynolds). The most sensible thing for me to do would be to write to the hon. Gentleman with a full list and to deposit a copy of that letter in the Library for the information of all Members. However, the latest information available to me is that in respect of the other member states that are gaining MEPs—or, indeed, other member states generally, because the protocol must be ratified by all 27 of them, whether they gain or lose MEPs, or whether there is no difference in the number of MEPs from a country—something like two thirds to three quarters of member states have reached the stage of notifying their accession to the proposal, but others have not done so. Germany, for example, has debated the measure in the Bundestag, but my understanding is that Germany has not yet ratified it. We are awaiting news on where France is going. Some of the others, including Hungary, the Czech Republic, Sweden, Bulgaria, Slovakia and Malta, have gone a considerable distance towards ratification already, but we are not right at the back of the pack, by any means. My expectation is that this measure will probably be ratified by all 27 member states later this year, but it could slip into 2012, because each member state can decide how high a priority it gives to this measure. I hope that that gives the hon. Gentleman an adequate holding answer for now, but I undertake to write to him with chapter and verse as soon as possible.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Schedule 2
Election of additional MEP
Question proposed, That the schedule be the Second schedule to the Bill.
Mr Lidington
It might be helpful if I set out in a little more detail the provisions in schedule 2, because it also deals with the procedures to be followed in the admittedly unlikely event that we were unable to fill the vacancy for the additional MEP by looking at the party lists as they were constituted in 2009.
As I have explained, clause 17 provides for the method of electing and returning the UK’s additional MEP. Schedule 2 provides a series of detailed provisions to be used when undertaking the process to return that additional MEP. As a first step, the regional returning officer for the designated region—in this case, the west midlands—would be required to identify which registered party would have won the additional seat in accordance with the results of the European parliamentary elections of 4 June 2009, as though that seat had already been allocated to the west midlands at that time. Since there were no independent candidates in the west midlands at the 2009 elections, the schedule provides only for allocation to a registered party.
The regional returning officer would then be required to identify from the registered party’s list of candidates at the 2009 elections the candidate whose name appeared highest on the list. In doing so, the returning officer has to disregard those people who have already been returned as MEPs, or who have since died. For example, if the registered party had proposed six candidates in an electoral region and the first three candidates on that party’s list had been returned as MEPs, the returning officer would identify the fourth candidate on that party’s list as the next person to be returned as an MEP. That person is referred to as the first choice.
Schedule 2 provides that the returning officer then has a duty to contact the first choice to ask whether he or she will provide written confirmation of their willingness and their ability to be returned as the MEP. The returning officer would also ask the first choice to deliver a certificate signed by, or on behalf of, the nominating officer of the registered party, confirming that he or she may be elected.
Schedule 2 further sets out the process to take place if the returning officer is unable to contact the first choice candidate or if that person confirms that, for whatever reason, they are unwilling or unable to stand, or if they do not provide the certificate required by law. In order to maximise the independence of the process, and to make it clear that there is no Government gerrymandering involved, it shall be at the discretion of the regional returning officer to determine the length of the “reasonable period” involved.
If there has been no success with the first choice candidate, the returning officer should identify the next name on the registered party’s list of candidates. This candidate is referred to in the schedule as the subsequent choice, and the returning officer shall repeat the same process with that candidate. This process will continue until either the seat is filled or there are no more names on the registered party’s list of candidates.
Schedule 2 then sets out what would happen if the first choice candidate provided the required documentation after the regional returning officer had determined that it was appropriate to move on to the next individual. In that case, schedule 2 provides that the so-called prior choice would have forfeited their opportunity because they had previously been given adequate opportunity by the returning officer to provide the relevant documentation within a reasonable time. They would have to wait to see whether the process could be completed successfully with the current candidate being approached by the regional returning officer. If the returning officer had no success with that subsequent candidate, the earlier candidate could be allowed at that stage to provide documentation and stake a claim.
The schedule then sets out the process to take place when a candidate has returned the required documentation to the satisfaction of the regional returning officer. The returning officer has to declare publicly in writing that that person should be returned as an MEP, prepare a public statement containing relevant information concerning the process, and send copies of both documents to the Secretary of State.
Mr Lidington
My hon. Friend makes a valid point. It is right that in drafting legislation, particularly on a matter as important as democratic representation, we make provision even for unlikely eventualities. If my hon. Friend will bear with me for a few seconds, I shall come to precisely the point that she identified.
When the returning officer has sent copies of the documents to the Secretary of State, the candidate will be confirmed and will be free to take up their seat as soon as the transitional protocol has entered into force. That depends on ratification having taken place in every member state.
Here I come to the point raised by my hon. Friend the Member for St Albans (Mrs Main). Schedule 2 also provides that, in the event that none of the candidates on the relevant 2009 list was available or willing to be returned as an MEP, as a last resort a by-election would be held to fill the seat.
Nick Boles (Grantham and Stamford) (Con)
Will my right hon. Friend tell us whether these provisions are to apply only once, in one particular case at one particular time? Is it not the case that we know perfectly well who would be most likely to benefit from the provisions? Is it not also the case that we know that she is alive and wants to be a Member of the European Parliament? Would it not be quicker just to elect Anthea McIntyre as a Member of the European Parliament for the west midlands and move on to the next clause?
Mr Lidington
My hon. Friend, as always, reminds us of practicalities and of the real world. As I said to our hon. Friend the Member for St Albans, the legislation for democratic representation must make provision for all conceivable eventualities, even if they seem highly improbable to us.
Jacob Rees-Mogg (North East Somerset) (Con)
If the Bill were simply to say that Anthea McIntyre were elected, it might be in danger of becoming hybrid legislation.
Mr Lidington
I bow to my hon. Friend’s constitutional knowledge. I suspect that having the Bill declared hybrid is the last thing that any of us want.
If we reached circumstances in which none of the candidates from 2009 was available or willing to be returned, a by-election would be held. The returning officer would confirm to the Secretary of State that the seat could not be filled, and the Secretary of State would lay an order by statutory instrument to specify the date of a by-election. I stress that the by-election is very much a last-resort option, and that, given the short time between the 2009 elections and now, the Government are confident that the process outlined in schedule 2 is likely to identify a candidate to fill the additional seat.
Question put and agreed to.
Schedule 2 agreed to.
Clause 19
Financial provisions
Question proposed, That the clause stand part of the Bill.
Mr Lidington
Clause 19 provides for the financial provisions associated with some of the provisions of the Bill, mainly those in part 2 required for the implementation of the transitional protocol on MEPs. Any costs incurred as a result of our implementation of the protocol will be met from the Consolidated Fund.
Mr Lidington
If the hon. Gentleman will allow me to make a little progress, I will explain where potential costs might conceivably arise. Any costs would consist of the minimal costs arising from the administrative expenditure of the returning officer of the west midlands electoral region. The costs involved there will depend on what those administrative costs are, but they are costs that would have to be budgeted for in the normal way. The returning officer does not have a blank cheque that he can draw on. If the seat could not be filled in accordance with schedule 2 and a by-election had to be held, there would be costs associated with that by-election, for which clause 19 makes provision. On our best current estimate, a by-election would cost about £10 million to run.
Mr Lidington
If a by-election were to be held, my understanding is that it would be held on the basis of the first-past-the-post system, if only one candidate could be elected. Again, if I am mistaken, I will correct the record.
Mr David
May I press the Minister a little further on that? I am sure that what he is saying is correct, but would it not be strange if all the other MEPs from Britain—in fact, I would guess all the other MEPs from every other European country—were elected under a form of proportional representation, yet this one individual was the only one elected under first past the post?
Mr Lidington
The fact that this is a transitional arrangement means that it is sui generis. As the hon. Gentleman will know, normally the European Parliament has a rule that a legislator cannot have a dual mandate and be a member of both a national legislature and the European Parliament. Here we have insisted that people had to leave active membership of the House of Lords in order to take a part in the European Parliament, and Members here have had to make a choice in the past when they have held a dual mandate in the House of Commons and the European Parliament about which they wished to pursue after a particular election. Special arrangements are being made because this matter is transitional.
Tim Farron (Westmorland and Lonsdale) (LD)
Perhaps I may help the Minister: essentially, a by-election in such circumstances would be under the list system. The list would just be a list of one.
Mr Lidington
My hon. Friend has helped by indicating that we would be making a somewhat academic distinction in these circumstances. It might be important theologically, but not in terms of practical politics.
Graham Stringer (Blackley and Broughton) (Lab)
To carry on with the theological argument, is it not the case that PR systems reduce to first past the post when there is one vacancy in effect, with the exception of a dead heat? That is the real point on the ballot paper where there is a cross put against the name, which is a traditional first past the post, or whether it is one, two, three or four, depending on the number of candidates. I would be grateful if the Minister could clarify.
Mr Lidington
The hon. Gentleman invites me to speculate on what the procedure would be were there to be a tie in the event of a very unlikely by-election covering the whole of the west midlands region. I will seek advice in order to be certain of my position and write to him or respond to him later in the debate.
Chris Bryant
I am grateful to the Minister for being so generous in giving way, as he always is. He has suggested that Members of this House or the House of Lords are barred from being Members of the European Parliament, but I do not think that that is the law. I would be grateful if he could advance the Act of Parliament in which that is stated. I thought that the Rev. Dr Ian Paisley was simultaneously a Member of this House and the European Parliament for a considerable time.
Mr Lidington
That was possible for a long time, but the rules were changed and the right hon. and noble Lord Bannside, as he now is, decided to leave the European Parliament at the appropriate election because he wished to remain a Member of the House of Commons.
The other costs covered by clause 19 arise by virtue of clause 13, which provides that the Electoral Commission shall
“take whatever steps they think appropriate to promote public awareness… and… may take steps they think appropriate to promote public awareness of the subject-matter”
in connection with any referendums held, pursuant to part 1 of the Bill. Clause 19 provides for any additional costs incurred as a result of that activity.
It is also worth underlining the fact that since 14 July 2009 the salaries of Members of the European Parliament are paid from the European Parliament’s budget. The United Kingdom will make no direct payments as a result of the implementation of the transitional protocol on MEPs, so clause 19 makes no provision for any such payments.
Mr David
I would like to refer to one point relating to financial provisions. The Minister has referred to clause 13, which we debated last week, although in insufficient detail in my view. What possible costs could be incurred by provisions of the Bill relating to possible referendums, because the Electoral Commission is given tremendous scope? For example, clause 13(b) states that the Electoral Commission “may”—I stress that word—
“take whatever steps they think appropriate to promote public awareness of the subject-matter of the referendum.”
We have also discussed the fact that there could be referendums on extremely complex and almost esoteric issues, and the Government of the day would have to make an enormous effort to ensure that there was a reasonable debate among the public on the issue under consideration, rather than some other issue. Will the Minister spell out what sort of cap there could be on the Electoral Commission’s expenditure? We have also touched on the possibility that public money would be given to the campaign in favour of a change that a Government want and to the campaign against it. What sort of cap will be included for two opposing campaigns that could be initiated as a result of this legislation?
Mr Lidington
Before responding to those points, I should clarify the method of election we would use for a by-election. My hon. Friend the Member for Westmorland and Lonsdale (Tim Farron) was absolutely correct: although in theory the list system would be used, in practice it would be a list of one, so for all intents and purposes it would be a first-past-the-post election.
The hon. Member for Caerphilly (Mr David) asked about public money being available to umbrella campaign organisations arguing for either a yes or a no vote. We have always taken the view that any referendums conducted by authority of the Bill should be run along lines equivalent to those provided in other statutes, especially the AV referendum that we hope will be held this May, subject to Parliament’s approval.
Mr Lidington
No. The matter will be decided at the time. We will not operate on a hypothetical basis—that there might or might not be a referendum in any particular year. We would make provision for it as and when required.
Chris Bryant
I am not sure whether the Minister therefore means that the Foreign Office would make provision, whether the Ministry of Justice would do so under the referendums provision or whether it would come out of the contingency, but my anxiety is that one might end up with the same situation as we have in Wales for the next referendum on 3 March. Nobody has been identified as the official no side of the argument, so there will be no public money for either no or yes, because if there is not an official no campaign there cannot be an official yes campaign.
Mr Lidington
The regulations for the referendum will be those set out in the Political Parties, Elections and Referendums Act 2000. I suggest not that any changes are planned, but that, in accordance with any amendments made to that legislation between now and the date of any future referendum on a European issue under the Bill, the rules for its conduct would change. Today, we propose, however, that, as long as the 2000 Act remains in force in its current form, the rules that apply to it should apply to any referendum held under the auspices of the Bill.
Emma Reynolds
On the Minister’s previous point, may I gently suggest that the difference between the alternative vote system and first past the post is that the candidate should receive more than 50% of the vote? So, there is a difference, even if only one candidate is listed. On clause 19, what does he estimate the cost to be of a referendum on any of the Bill’s measures that would trigger a referendum? Given the Government’s slightly confusing messages—they promise not to transfer power to the European Union, as set out in the coalition document, yet they demonstrate their eagerness through the Bill to commit to a referendum when a trigger is in place—will he estimate how many referendums we will have in this Parliament and, therefore, how much of a drain they will be on the Consolidated Fund?
Mr Lidington
I really do not know how many times I have to keep repeating this before the Opposition understand: there is a clear pledge in the coalition agreement that the current Government will not, during the lifetime of this Parliament until 2015, agree to a treaty amendment—under either the ordinary or simplified revision procedures—that would transfer competences or powers, as defined in this legislation, from the United Kingdom to the European Union. Therefore, the question does not arise: as the United Kingdom will have the right of veto over any such measure, we are making it clear that we are not going to agree to it. By bringing this legislation into effect, however, we are enacting provisions, to apply during this Parliament, for enhanced parliamentary controls over treaty changes. My right hon. Friend the Prime Minister has made it clear that the proposal on the table for a narrow treaty change under the simplified revision procedure to establish a permanent crisis resolution mechanism for the eurozone countries would, under the 2008 legislation, require simply a resolution in both Houses for it to be ratified by the United Kingdom, but, once this Bill comes into force, primary legislation will be required for that ratification. So as a consequence of this Bill, irrespective of the fact that we do not anticipate agreeing to anything that would require a referendum, there will be enhanced parliamentary control over any promised or hypothetical further treaty change or invocation of one of the passerelle clauses expressly provided for in the Bill.
Mr Peter Bone (Wellingborough) (Con)
Of course, the situation is exactly as the Minister says while this coalition Government are in power. However, we are in a fixed-term Parliament and there is no guarantee that this coalition Government will still be the Government, so the additional clauses are there to protect us.
Mr Lidington
It is very important that we legislate on the basis that we want to give people the assurance that they have this protection against any future Government choosing to railroad through the transfer of new competences to the European Union institutions without the people being given the right to have their say. Any future Government of any political colour will be taking a pretty massive political risk if they try to rob people of the right to have the final say about the transfer of competences and powers from this country to Brussels. That will be a very powerful deterrent against any future Government being tempted down such a course.
Chris Bryant
The Minister said that this Government have no intention of having a referendum because they do not intend to trigger one under their own Bill, thereby proving that the whole Bill, like Z, is an unnecessary letter. Will he now get on to the point made by my hon. Friend the Member for Wolverhampton North East (Emma Reynolds) about how much a referendum is going to cost?
Mr Lidington
On current prices, a referendum, if held on its own, could cost between £80 million and £100 million. If it were combined with other elections on the same day, the figure might well be considerably less. However, these things would have to be calculated in detail at the time. It depends on factors such as whether another election is being held on the same day, so all the apparatus of paying for staff to set up polling stations and to count ballot papers is already being provided for, or it is being done as a one-off solely as a referendum on a European subject.
Mr Lidington
I was trying to respond to the hon. Member for Rhondda (Chris Bryant), but I will give way.
Mr David
These are very important issues. At a time of austerity, as the Government say, it is of great concern that there is such a lax approach to quite considerable sums. Does the figure that the Minister mentioned include merely funding for the conduct of a referendum, or does it also include the grants to organisations to enable them to put the respective arguments in a referendum?
Mr Lidington
I will come back to the hon. Gentleman having taken advice on that point. I would say gently to him, however, that giving the people their say, in the way they would expect, about the transfer of significant powers to act and make policy from this Parliament and this country to Brussels ought to be a high priority for Government expenditure. The reputation, not just of his party but of British politics in general, would have been a lot higher had the previous Government given a higher priority to spending money on the referendum that they had promised on the Lisbon treaty, rather than making a saving on that while spending billions of pounds on other objectives, many of which were of significantly less importance to the people whom we represent.
Emma Reynolds
I say gently to the Minister that if he goes back and reads our manifesto commitment, he will find that we promised a referendum on the constitutional treaty. If he asks his officials, with whom I was working at the time—
The Chairman
Order. We are getting carried away and are drifting. I am sure that the Minister wants to get back to the point.
Mr Lidington
I will leave it to the hon. Lady to try to explain that distinction on the doorstep.
The hon. Member for Caerphilly (Mr David) asked about expenditure authorised by clause 13. We have to understand the distinction between an authority to spend, which is what we are debating, and what the level of any expenditure should be. If we did not have the authorising power, as set out in clause 19, the Electoral Commission would simply not be able, without going ultra vires, to promote public awareness of a referendum or the subject matter of a referendum. The Electoral Commission, like any other Department or organisation funded by the taxpayer, has a budget that is set through negotiation with the relevant Departments and the Treasury, and it will have to make provision from within that budget. If it really feels that it needs more, it will have to come back to the Government to seek agreement for a supplementary authorisation for additional spending, in the way that such things are usually provided for. We are debating a power under the clause for the Electoral Commission lawfully to spend money on a particular set of objectives, and nothing more.
Chris Bryant
Rather unfortunately, the Minister unpicked my support for the clause in the speech that he just made. He is right that this is the only point at which Members will decide how much should be spent on referendums, should they come into play. As he said, the rules on elections and referendums are set out in the Political Parties, Elections and Referendums Act. The Government may wish to change some of those elements in the future, but Members will never consider this element of funding again. The moment that the Government want to have a referendum, they will have one and we will not have an opportunity to decide the cost of it.
The Deputy Prime Minister said that a major reason for holding a referendum on the same day as the local elections in England, the Assembly elections in Wales and Northern Ireland, and the Scottish Parliament election is the saving of some £30 million. I am not quite sure how that matches with the figures that the Minister gave for the cost of a stand-alone referendum. I wonder whether the Foreign Office is operating on slightly different figures from those of the Cabinet Office, which are being advanced by the Deputy Prime Minister.
I say to the Minister that to propose a Bill that provides no assurance that the financial sense of holding a referendum will be considered, and that provides only for the ideological sense of having a referendum to be considered, is a failing. As an example, I will give a failing of the previous Labour Government. There will be a referendum on new powers for the Welsh Assembly on 3 March. I have knocked on a lot of doors in the Rhondda recently, and I have been hard-pressed to find a single person who knows that the referendum is taking place. I suspect that very few people will take part in it. I know what machinations led to the provision in the Government of Wales Act 2006 that has put us in that situation, but I am unsure whether it is a good use of public money constantly to go to voters in referendums. I would have thought that a Government who wanted to get the best value for money, especially in a time of austerity, would want to have a value-for-money test as part of the decision about whether there should be a referendum. My anxiety is that there will be referendums on piddling matters, because lawyers will force them to happen. That will cause significant cost to the Government and no actual benefit to voters, who will effectively vote by not voting.
Chris Bryant
My hon. Friend has essentially made my point for me again. As you are looking quizzical, Mr Hoyle, there is no need for me to detain the House longer. [Interruption.] No, it is quizzical, honestly. Well, it certainly is now, even if it was not a few seconds ago. I look forward to hearing the Minister explain why there is no provision in the Bill for a value-for-money test before there is a referendum.
Mr Lidington
First, to make the record absolutely clear, I say to the hon. Members for Wolverhampton North East (Emma Reynolds) and for Blackley and Broughton (Graham Stringer) that the former was right to correct me about the way in which votes would be counted in the somewhat unlikely event of a by-election. In effect, it would be an alternative vote election but with just one candidate from each party. The candidates would be numbered, so the question of a tie, to which the hon. Gentleman drew my attention, would not arise. I am grateful to both hon. Members for their interventions, which have made it certain that we have got the correct facts on the record. I am sure that in the hypothetical case of a by-election being called, they will find the Hansard record of these exchanges very helpful.
To respond to the point that the hon. Member for Rhondda (Chris Bryant) made about finance, the detailed financial provision for any referendum would be made in the Bill authorising that referendum. When we debated earlier clauses, I explained that there would need to be primary legislation for that purpose—I think it would almost certainly be part of the Act of Parliament to ratify a treaty change.
I believe that there is simply disagreement between the hon. Gentleman and me about that matter. I take the view that we should have a referendum when the question to be determined is significant enough in principle to require it. We have laid out in detail in the Bill the changes to European treaties, and the transfers of decisions from unanimity to qualified majority voting, that we think are of such constitutional or political importance that a referendum of the British people should be required before any Government could decide to accept them not just for their own term of office but permanently and, in the eyes of many in the EU, irrevocably.
The problem with introducing a measure such as a value-for-money test is that it opens up a wide area of discretion for the Government of the day, who could say, “Well, this decision might be of legal and constitutional importance, but frankly, the costs involved do not justify all the trouble of asking people to come out and vote and they aren’t really interested anyway.” That way of thinking is part of what got Europe into the democratic deficit in which it is now trapped. There is a gulf of mistrust between voters and the political elites who govern them in far too many European countries, each of which has proud democratic traditions. We see that in this country in how Parliament is regarded—it is not just down to the EU; it is down to all sorts of other things as well. Such a measure would be another element in that deficit.
Allowing people to have the final say over decisions that are important to the future of their country is one way to remedy that deficit. I think it better to define the circumstances in which that will happen in legislation, as we have done with the Bill, than to leave it to the discretion and judgment of Ministers, who might decide on the ground of public interest or of value for money. For that reason, I prefer our approach.
Chris Bryant
The fact that the Minister and I disagree on this matter or on the Bill is no great revelation. Even his private office might have worked that out. He gave the game away a bit when he said that the matter of principle is that one must give the people the right to decide when the transfer of power is sufficiently significant, but significance is not an absolute but a comparator. That is my problem.
The Bill provides for the addition of a new MEP. Will he assure the House that there is no need to provide for a situation in which that MEP, having been appointed, decides to leave or unfortunately dies? Will that seat simply be gathered up in the normal process of by-elections?
Mr Lidington
The answer to the hon. Gentleman’s question is yes. The normal processes for filling a vacancy in the European Parliament would apply in those circumstances too.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Extent
Question proposed, That the clause stand part of the Bill.
Mr Lidington
The clause provides that the Bill extends to the whole United Kingdom. The subject matter of the Bill is reserved to the Westminster Parliament and it contains no provisions that fall within the terms of the Sewel convention, or that would require any legislative consent motions in respect of the devolved legislatures. In any case, I can confirm to the Committee that the devolved Administrations were consulted on the Bill prior to its introduction, and are content with its provisions.
Part 2 of the Bill, which provides for the implementation of the transitional protocol on MEPs, also extends to Gibraltar, because the people of Gibraltar, as has already been mentioned, participate in UK elections to the European Parliament. Where clauses 20, 21 and 22 touch on part 2, they also extend to Gibraltar.
As I made clear early in Committee, and as you would certainly expect of me, Mr Hoyle, I have discussed the approach taken in the Bill with the Chief Minister of Gibraltar. He has made it clear that he approves of our approach, in terms of both the application of part 2 to Gibraltar, and the provisions in part 1 that ensure that the people of Gibraltar can participate in any referendum that is held when a treaty change affects them by virtue of our membership of the EU and the UK’s Act of Accession.
Mr David
I am pleased that the Minister has gone out of his way to emphasise that there has been consultation and agreement with Gibraltar—I am sure that you, Mr Hoyle, will be especially pleased about that. However, will the Minister clarify further what consultation there has been with the devolved Administrations? I am thinking of the Scottish Parliament and Executive in particular, because I noted in evidence submitted to the European Scrutiny Committee that concern was expressed that elements of the Bill might impinge upon devolved areas. Certainly, when the evidence was submitted, those concerned were not entirely satisfied that the Government had taken that fully into account. Will he give a cast-iron commitment—if I can use that phrase—that there has been consultation, and that all parties are happy?
Mr Lidington
Yes, we consulted the devolved Administrations in 2010, at the same time as final policy approval was sought from Departments. The text of the Bill was circulated to the devolved Administrations as soon as it had been drafted and was available for circulation in Whitehall. We have tried to keep them as much in the picture as possible and as soon as was practical. As the hon. Gentleman will understand, the Government took office in May last year, and arranging policy clearance and then the drafting of the Bill has been an intensive piece of work. However, I do not think that the devolved Administrations have been treated in any way unfairly. I have assured them that the Government remain completely committed to what the Prime Minister has termed the “respect agenda”, and that we are committed to honouring in full the various memorandums of understanding between the Government of the United Kingdom and the devolved Administrations. I am happy to make clear that commitment once again.
Chris Bryant
I am afraid that it was the words “the respect agenda” that turned my stomach and made me get to my feet suddenly. My experience of the Government thus far, in relation to other constitutional developments, has been that the respect agenda has been more honoured in its breach. To be fair, however, the Foreign Office has discussed the matter openly and fairly with the Governments in Scotland, Wales and Northern Ireland to ensure that the legislation might suit their needs. However, there might be some areas—particularly in relation to the different legal system in Scotland—where, although it might not feel like the UK Government have surrendered a power in negotiations in Brussels, it might feel more like they have in Scotland. At those moments, the people of Scotland might say, “We want a referendum, because we do not like what you are doing”, while the Government and Parliament might not think that there is any need to do so.
I want to make a second point about Gibraltar. We have all referred, Mr Hoyle, to your personal interest in Gibraltar, and I bow at that altar as well. The Minister used a particular phrase that seemed like it had been crafted very carefully through the decades by Foreign Office mandarins. Having used such phrases before myself, I wonder whether it might not help were the Minister to unpack it. I think he said that the people of Gibraltar would be allowed to vote in a referendum where they are affected by a measure. I do not know how one would determine whether Gibraltar has been affected. I am not sure whether the Minister is being too clever by half, or whether I am being too foolish by half, but I am sure that he will enlighten us.
Mr Lidington
Let me deal with Gibraltar first. As I am sure the hon. Gentleman will recall from when he had responsibility for such matters, Gibraltar is part of the European Union, but it is not subject to all of the acquis. Therefore, the referendum will extend to Gibraltar where the treaty amendment, passerelle clause or article 48(6) decision concerned affects an area of European Union competence that covers it. If the proposed treaty change dealt with an area of competence from which Gibraltar was completely excluded, it would not take part in the referendum.
Chris Bryant
I can feel a peroration coming on, so I just want to check something to do with Gibraltar. Notwithstanding the remarks that the Minister has made, clause 11(1)(c) refers to who gets to vote
“if the referendum is also held in Gibraltar,”
but who decides whether the referendum is held there? Would that have to be laid out in the Bill that was implementing the individual referendum in question?
Mr Lidington
No, it would be a matter of treaty and law. I refer the hon. Gentleman to clauses 2(2)(a) and 3(2)(a). They provide for the circumstances relating to whether a referendum on whether a treaty should be ratified should be held throughout the UK—“or”, and this is the important provision,
“where the treaty affects Gibraltar, throughout the United Kingdom and Gibraltar”.
The referendum will extend to Gibraltar where the treaty matter that is subject to the referendum is a matter that includes Gibraltar. If it is a treaty matter from which Gibraltar is excepted, the referendum will not include the people of Gibraltar.
Chris Bryant
So why does clause 20 not say that the Act extends to the whole of the United Kingdom and Gibraltar?
Mr Lidington
Because the provisions for Gibraltar are laid out in clauses 2 and 3, as I have explained.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clause 21
Commencement
Mr James Clappison (Hertsmere) (Con)
I beg to move amendment 15, page 12, line 12, leave out subsection (3) and insert—
‘(3) The day appointed under subsection (2) shall be within one month of the day on which this Act is passed.’.
Under clause 21, certain provisions will come into force quickly, while others will do so at a later date. Clause 15 will come in straight away, as will part 3, which includes clause 18, the sovereignty clause. The amendment would bring in the whole Bill all at once within one month of its passing through all relevant stages. I know that my right hon. Friend the Minister has said elsewhere that it is the Government’s intention for the entire Bill to come into force within two months of Royal Assent. I am giving my right hon. Friend an opportunity to say a few more words about the clause, and I am sure that he will be able to deal with it as comprehensively as he has just dealt with the many points put to him by the hon. Member for Rhondda (Chris Bryant). All those points were put to bed and I am sure that he will put this point to bed in the same way.
Mr Lidington
The Bill radically changes how the UK approaches the consideration of future key decisions on the European Union. It is therefore right that the provisions of this legislation should be applied as soon as possible after Royal Assent. It is also right that any treaty change currently being considered should be examined through the prism of this legislation. The Prime Minister, the Foreign Secretary and I have all made it clear that the Government’s firm intention is that the provisions will apply to the eurozone treaty change, which is expected to be agreed at EU level at the spring European Council.
Under the usual arrangements, the provisions of Acts of Parliament enter into force, unless otherwise stated, two months after Royal Assent. This Bill, however, has a slightly different set of provisions when it comes to commencement. Clause 21 makes provision for the Bill’s entry into force; subsection (1) provides for clause 15 and part 3 to come into force on the day of Royal Assent.
Clause 15 allows our country to be able to ratify the transitional protocol on MEPs as soon as possible, and two months earlier than we would otherwise have been able to. Article 2 of the MEP protocol stated that it should be in place, if possible, on 1 December 2010. At the moment, it looks unlikely that we will be the last member state to ratify that transitional protocol, but I would want us to be in a position where, if it turned out that we were bringing up the rear, there would be no delay and we would be able to bring our ratification into effect and allow the provisions of the protocol to take effect immediately after Royal Assent. We thus consider early commencement of that part of the Bill to be appropriate in order to reduce the delay and ensure that early commencement of the provision would not have any undue or adverse effects.
Clause 21(2) enables the Bill’s other provisions to be brought into force by one or more commencement orders made by the Secretary of State, and subsection 3 allows different days to be appointed for different purposes. The subsections were intended to give the Government the flexibility to bring the remaining provisions into force earlier—I emphasise the word “earlier”—than might otherwise have been the case, but we did not fix back in November, when we introduced the Bill, the date on which the provisions would enter into force. We allowed for flexibility so that individual parts could be brought into force at times that would maximise the Bill’s effectiveness.
Amendment 15 aims to ensure that all parts of the Bill are in force within one month of Royal Assent. I entirely understand the wish of my hon. Friend the Member for Hertsmere (Mr Clappison) to ensure that the Bill is in force as soon as possible, and I share his enthusiasm, but I hope I can persuade him that his amendment is not necessary. As we have already made clear, the Government have a firm commitment to use the Bill’s provisions for any future treaty change, not least the forthcoming eurozone treaty change. Because of the timing of that change, Parliament will have two bites at the cherry. Under the 2008 Act introduced by our predecessors, it will have a vote before the March European Council; it will then have to consider a Bill under the provisions in this Bill. We introduced Government amendment 56 precisely to ensure that this Bill could apply to the eurozone treaty change.
Mr Clappison
My hon. Friend is giving a very helpful explanation, but can he tell me which parts of the Bill will cover the proposed eurozone treaty change, whether or not the Bill is in force? As he has said, it does not matter whether it is in force or not, because the Government will abide by its terms regardless of whether it has been commenced.
Mr Lidington
All relevant parts of the Bill would apply to the treaty change. The Minister responsible would have to make a formal statement setting out whether the change transferred competences or powers—as defined in the legislation—to the European Union and therefore triggered a referendum, or whether it fell into one of the exempt categories.
As my hon. Friend knows, the Government believe that the treaty amendment that is now being considered applies only to the eurozone. It does not transfer any competences or powers from the United Kingdom to Brussels, and therefore, although primary legislation would be required for its ratification, a referendum would not be required. However, under this Bill we will require the Minister to set out his argument in the detail that we would expect to be demanded in relation to any other treaty change proposal.
There would then need to be primary legislation for the United Kingdom to ratify the treaty change. Although it does not affect the United Kingdom directly, it must be ratified by all 27 member states in order to take effect. It is therefore important for Parliament to have the right to examine the implications of the change in detail. We consider that primary legislation represents a better, more democratic approach than the simple debate on a resolution which is all that is provided for the ratification of such a change under the 2008 Act.
Clause 21 allows for flexibility to introduce provisions in the Bill at different times if required. I can assure my hon. Friend, on behalf of the Government, that we will lay an order to ensure the commencement of all the provisions that are not already in force by then one month after Royal Assent. We want to ensure that Parliament and the public are able to exercise the new rights that the Bill gives over EU decision-making as soon as possible. I hope that that gives my hon. Friend the assurances that he seeks, and that I can therefore persuade him to withdraw his amendment.
Mr David
I should like to say a few words about the clause. The whole issue of when the Bill comes into effect causes us some concern, because it has been our contention from the start of our deliberations that the Bill is essentially window dressing. It is not an attempt to introduce genuine participation and accountability, but is instead, as a Minister has said, a rather crude attempt to tie future Governments.
Certainly, in terms of parliamentary scrutiny, I welcome what the Minister has said today and previously. Logically, many of things that the Government have announced in the Bill and in recent written statements are to be welcomed. We are firmly in favour of as much parliamentary accountability and involvement as practicable. Indeed, that was the whole tenor of the Opposition’s amendment at the start of our Committee deliberations. However, it worries me that we still have the important issue of the justice and home affairs opt-ins, particularly the European Court of Justice provisions, which will have to be considered during this Parliament. The Minister has been absolutely firm in his determination to ensure that although we will have additional scrutiny considerations regarding whatever a Government may decide to do, there will not be a referendum on this extremely important issue. These matters worry us greatly, because we contend that there is a certain amount of illogicality in the Bill. It is contradictory, it does not hold together and there is not a great deal of intellectual sense behind it. That is clearly illustrated by the whole issue of the ECJ opt-in provisions.
If the Government were true to their rhetoric, they would insist that the legislation would be introduced and that a referendum would be held during this Parliament if they decided to opt into those provisions, as some suggest they would like. That is why the whole issue of when different parts of the Bill commence and have legal effect is of tremendous importance. I want to register and reinforce the Opposition’s concern that the Government are approaching this matter in what we consider to be a totally ham-fisted way.
Mr Lidington
I shall be brief. I think the hon. Gentleman has a bit of a nerve. It was actually the Government whom he supported and served who agreed to the treaty that collapsed the third pillar, which communitised justice and home affairs, bringing those areas of policy under European Court of Justice jurisdiction when previously they had been intergovernmental. As we debated last week, we have as a Government announced that we shall be discussing with the scrutiny Committees and others the ways in which we can strengthen parliamentary scrutiny over justice and home affairs and give greater accountability of the Government to Parliament for those decisions.
We have said publicly, on the record, that the decision that must be made by 2014 on whether to opt out of or remain party to the pre-Lisbon corpus of justice and home affairs measures will be subject to a debate and to a vote in each House of Parliament. The previous Government made no provision for such an arrangement. They were content for the 2014 decision, which the hon. Gentleman now describes as of great magnitude, to be subject simply to the normal scrutiny provisions and for the Committee to determine whether to call it in for debate. I note that, despite all the hon. Gentleman’s strictures about there being no need for this Bill, he did not suggest that a hypothetical future Labour Government would seek to repeal the legislation. He knows the penalty that would accrue to any political party that tried to deny the people the democratic rights that they are being given under the Bill.
Priti Patel
I thank the hon. Lady for her contribution. I entirely agree. The air needs to be cleared, and the British public naturally feel upset and uneasy about that. The issue is a sensitive one, hence the need for greater openness and transparency.
I ask the Minister to consider the points that I have made—fundamentally, the issue of openness and transparency. We have handed away far too many powers. The Bill is about the future, and I would welcome the Minister’s views.
Mr Lidington
The new clause moved by my hon. Friend the Member for Witham (Priti Patel) raises important issues, and it is right that we should devote some time and attention to her arguments today. I share a large number of the concerns that she expressed, and I welcome her wish to see much more transparency and clarity in the way in which the European Union operates. Having said that, I shall argue that the method proposed by my hon. Friend in her probing amendment is not necessarily the best one to secure those objectives. I shall deal with the main components of the new clause in turn and explain why, although I share many of her concerns, I do not think that the proposal as drafted is the best vehicle to deliver those goals.
Let us look first at how to police the boundaries of European competence. I share the anxiety expressed by my hon. Friend, and I believe that this is the mischief that subsection (2)(b) of new clause 7 is intended to address. That subsection requires that a list of any powers or competences transferred from the UK to the EU under the terms of the treaties in the previous 12 months, which have or have not received specific authorisation under any provisions of part 1 of the Bill, be included in the annual report.
The treaty position is clear. A competence should be transferred from the UK to the EU only if there is a treaty or treaty amendment unanimously agreed by all member states using the ordinary revision procedure, whereby we have a continuing power of veto. Power, as defined in the Bill, is changing the treaty to give an EU institution or body the power to impose a requirement or obligation on the UK, to impose sanctions on the UK, or to abolish what are defined in the Bill as significant vetoes.
Given that those changes to competence or power are covered by the referendum lock as set out in the Bill, there ought to be no possibility of the need for any entries at all in the report under subsection (2)(b) because competence cannot lawfully be transferred by any other means. What lies behind my hon. Friend’s argument, I think, is a concern that competence may be extended in ways other than formal treaty change.
It is important to try to distinguish the issues. There are cases where the EU has competence—we may argue about whether it ought to have such competence, but that competence has been granted by one or other of the previous treaties—but where the UK has particular views about how the European Union should legislate on the basis of that competence. We may believe that a particular measure is unjustified on grounds of subsidiarity, or that the costs of a particular measure are disproportionate to the benefits being claimed.
I offer the Committee an example. We do not dispute that the EU has competence to legislate on the terms and conditions for pregnant workers, but we have very strong views about the content of the particular proposal that is on the table, and we successfully built firm opposition in the Council to the European Parliament’s approach, which has effectively brought those negotiations to a standstill. At heart, that is not a matter of competence; it is a matter of policy. Those matters are debated carefully in the discussions about negotiating strategies that take place in the European Affairs Committee of the Cabinet, and they are also covered in the explanatory memorandums that we as a Government submit to Parliament.
There are other areas where there are concerns about whether a Commission proposal for new EU legislation or action oversteps the boundaries of existing EU competence. Again, the Government rigorously assess every proposal coming out of Brussels to ensure that it falls within the scope of competence and that the treaty base put forward by the Commission is justified. To give another example, we have been rigorous in asserting our position with regard to matters to do with the EU’s external competence.
Let us look at the External Action Service and consular work. We have firmly restated the treaty position that the EAS has no formal role in consular work, and should support it only by facilitating co-operation and the co-ordination of member states’ actions. The competence for consular functions remains with member states. We have made it clear to Baroness Ashton and to the Commission that we would oppose Commission proposals for the EAS to have a direct role in providing consular assistance or in any other way seek to expand the institutions’ role beyond the competences set out in the treaty.
As a further example, at the Cancun UN conference on climate change, we insisted on prior agreement on when the presidency and the Commission would be authorised to represent the position of the member states, and the forms of words that they would use when doing so. We did that in order to safeguard the position that competence remained with the member states and had not been given exclusively to the institutions of the European Union. In the last resort, if we considered that a proposal went beyond the competence of the EU, we would challenge it during the legislative process and, if necessary, at the European Court of Justice.
One of the reasons I hesitate to endorse an annual report is that I think what the Government should be doing is to make clear their views on competence as they affect particular measures whenever those measures are brought forward. If we adopted the proposed annual report, there would be a risk of Whitehall saying, “Let’s wait for the 12 months to elapse for the annual report.” My hon. Friend will probably have received some parliamentary answers; when I was a free spirit, I used to get parliamentary answers saying that the information would not be made available now, but if I wanted to hang on for six months, it would be made available in that Department’s annual report, or when a promised review was published. I would not like us to get into that situation with regard to these matters.
I have asked that every explanatory memorandum sent to Parliament should not simply state what legal base the Commission has given to it, but give some assessment of the suitability of that legal base.
We need to be much more forward-looking and smarter. Right across Whitehall, we must pay more attention to the Commission’s forward work programme, so that we can identify up front any potential issues of concern over competence creep at an early stage, preferably even before the publication of a proposed directive or other measure. That is the way forward for continuing work in government to scrutinise every proposal on competence grounds, and much more openness and activity in Parliament as well.
Emma Reynolds
In the interests of transparency and openness, which the hon. Member for Witham (Priti Patel) spoke so eloquently about, why do the Government not consider reintroducing the pre-European Council debates that used to take place in the House?
Mr Lidington
Because those debates were explicitly transferred from the Government to the Backbench Business Committee when it was established, along with responsibility for a number of other debates which had previously been held in Government time. The report that recommended that transfer was adopted unanimously in the House, with the support of the Labour party as well as that of Conservative Members.
Mr Bone
The Minister is exactly right on that point. I have the privilege of sitting on the Backbench Business Committee, and we always look forward to representations on the European issue. The Committee can bring a motion to the House, rather than just a general debate, and force the Government to do something.
Mr Lidington
Indeed. My hon. Friend is not exactly averse to opportunities to debate the EU. For hon. Members on both sides of the House who feel that there needs to be a debate on the Commission’s work programme or any aspect of that, the way forward is to ask the Backbench Business Committee to use the time allotted to them for consideration of those matters.
Mr Philip Hollobone (Kettering) (Con)
The Minister mentioned competence about a hundred times in his remarks, quite rightly, but subsection (3)(b) of the new clause mentions a cost-benefit analysis of the impact of any decisions made. Will the Minister address that point? Will Her Majesty’s Government at any point undertake a comprehensive cost-benefit analysis of our membership of the EU?
Mr Lidington
My hon. Friend pre-empts me, because I am about to come on to the question of cost-benefit analysis. I very much agree with my hon. Friend the Member for Witham that the EU has to provide much better value for money. The Government are clear that the EU needs to change and can do things a lot better than it does at present. My right hon. Friend the Prime Minister has argued in the House and elsewhere that the EU cannot be immune to the budgetary realities that every member state Government in the EU and every family in the EU has to face. That is why it was the Prime Minister and this country that led the process to ensure that the 2011 EU budget did not grow in line with the unacceptable demands of the Commission and the European Parliament, and why at the end of last year the Prime Minister secured the important principle that over the next financial perspective the EU budget should reflect the consolidation efforts being made by Governments right across the EU.
James Wharton (Stockton South) (Con)
Does the Minister agree that this is not just about value for money within the EU as a body and the way it functions, but about the impact on value for money across all that Government do and across our society as a whole of the measures implemented by the EU? We talk about what appears to be mission creep from the EU, which we often see when competences are used in an elastic manner to drive forward new centralised European policies. Will the Minister please make a statement on ensuring that we look for value for money in how they are implemented as well?
Mr Lidington
My hon. Friend makes an important point. The Government seek to ensure that there is much better value for money and a more rigorous cost-benefit analysis of measures at the EU level, and to apply those same principles to the transposition of European legislation into our own domestic arrangements. I suspect that hon. Members on both sides of the House will have been familiar in the past with European legislation that has all sorts of gold-plated extras that add to the cost and complexity that businesses or voluntary organisations face when the legislation reaches its final form here, usually by way of statutory instrument.
My hon. Friend the Member for Witham rightly says that we must ensure that the EU too addresses this challenge, and we are going about that in a number of ways. First, we are working with like-minded European partners to encourage smarter regulation by applying more rigorous use of evidence in the EU. We welcome the Commission’s smart regulation communication, published in October 2010, which set out a four-year strategy to reduce the regulatory burden of EU legislation on business. That communication reflected a number of this country’s priorities, including further strengthening of the impact assessment process and post-evaluation adjustment of laws.
We need to see much more progress on impact assessment. The Commission has a commitment to produce impact assessments for all its proposals, but, to be honest, the quality is variable and we continue to press for improvements. The Parliament and the Council do not have a routine commitment even to produce impact assessments as a matter of course, and we believe that those two institutions should be doing that as well. It is now a fact of life that most areas of European law-making involve the European Parliament as a more or less equal partner with the Council of Ministers. That means that on a number of important measures, for example on employment matters and other pieces of social regulation, the Council might agree a position and then the Parliament can choose to vote through measures that introduce greater costs that industry has to bear.
Mr John Redwood (Wokingham) (Con)
Does not the Minister understand that we do not want better impact assessments, but less regulation? How will the Government deliver their very good one-in, one-out policy on regulation if they cannot stop the torrent of regulation that is still pouring out of Brussels now that it is occupying the whole of the financial services field, for example?
Mr Lidington
We have to do both. The two are not alternatives. Impact assessments are valuable, and they focus the minds of other European Governments, and of the groups representing industry in those member states, to become more active in pressing home their interests than is sometimes the case at the moment. The more transparency that we get in the European legislative process, the more likely it is that we will move towards the objective that both my right hon. Friend and I seek.
I would share with my right hon. Friend a wish to see the EU legislate less. There is too often a culture in the Commission that identifies a problem and then seeks a remedy in the form of new law. Non-legislative measures can often be more effective, and certainly less burdensome and complex, than legislative measures. That is something that my colleagues across Government are pursuing with colleagues from other countries who share our views on this matter, and we seek to encourage other countries to work with us to look for non-legislative ways of addressing problems and challenges, rather than looking for a new directive as the first resort every time.
Mr Lidington
That has certainly been a genuine problem, and it is a priority for the Reducing Regulation Committee, chaired by the Secretary of State for Business, Innovation and Skills, to address. The Government now have an established policy not to gold-plate. When we implement European legislation, we will be certain to do no more than is required of us by the words of the legislation. Ministers are now under an agreed political obligation to resist any attempt from within their Departments to add extra bells and whistles to what is required of us by a directive. We should do what our competitors and partners in Europe are doing and no more.
Mr Shepherd
I applaud the Minister’s aspirational words, but those of us who have been here as long as he has have heard them said so many times. It is an old song, and yet nothing is ever resolved on the issue. Why is he confident that action will now follow those same old words?
Mr Lidington
I am confident because of what I see and hear when dealing with Ministers from other European Governments who have woken up to the scale of the competitive challenge that Europe faces from other regions of the world. When one talks with Ministers from Germany, Scandinavia, much of central and eastern Europe and even France, which has historically had a different approach to business and trade than we have had, one realises that there is a real fear that we are facing not only a difficult economic downturn and an ongoing economic crisis, with high unemployment across our continent, but a profound, long-term challenge to the competitiveness, and therefore prosperity, of our societies. I find Ministers from other countries alive to that challenge and so have greater hope that we can make progress than does my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd).
Mr Douglas Carswell (Clacton) (Con)
Will the Minister not find that that is precisely the sort of lip service that was paid to reform at the time of the Lisbon agenda more than a decade ago, when Ministers throughout Europe said that they would achieve reform and precisely nothing happened? Have we not been here before and heard that song sung too often?
Mr Lidington
The Lisbon agenda was certainly a grievous disappointment, and our chief concern about the Europe 2020 programme is that it will go the same way by being much too concerned with targets and inputs and not looking at competitiveness. However, if we look at the history of this country’s relationship with the EU, we can see how the UK has at key moments helped lead a movement that has changed Europe for the better.
I was teased earlier by Opposition Front Benchers about the impact of the Single European Act, but the creation of the European single market gave opportunities to business and individual workers in this country and in every other member state, and that has helped us to become more competitive and prosperous now than we would have been had Margaret Thatcher and Lord Cockfield not had the vigour and commitment to see it through.
Emma Reynolds
I agree with much of what the Minister has just said, including his comments on the Single European Act and the benefits of the single market, so there is an agreement between the two Front Benches on that. Does he agree with the argument that when European legislation is drafted properly and replaces 27 sets of legislation, for those businesses trading across borders it can actually be a deregulatory measure?
Mr Lidington
It is possible for that to happen, but it depends crucially on the content and complexity of the measure. Regulation is not desirable simply because it takes place at a European level and replaced national regulations. It is especially undesirable from the UK’s point of view if a familiar system of regulation that reflects the way we do business is replaced by something modelled on completely different practices from a different member state.
Mr Carswell
The Minister sings the virtues of the single market, so will he explain to the Committee why we have had a trade deficit with Europe every year since we joined the single market, whereas before we had a trade surplus? Will he also explain why non-EU states such as China seem to have no difficulty in gaining market access without having signed up to many of the regulations he supports?
Mr Lidington
I am sorry that my hon. Friend seems to regard Margaret Thatcher as having sold out to Europe when she agreed to the single market. I ask him to talk to UK businesses, as he will find that they regard the single European market as a great boon. It was the combination of the UK being in the single European market and at the same time offering the best deal, with regard to regulation and low taxes, that led the UK, under the Conservative Government that he and I supported, to attract the lion’s share of foreign direct inward investment into the entire EU.
Mr Lidington
I will give way, but I am conscious that we have another important new clause to debate and do not want to get drawn too far away from this new clauses’s content.
Mr Hollobone
We will have plenty of time to enjoy ourselves with that this evening. The Minister is stressing the benefits, as he sees them, of our membership of the EU, so I will return to the point I made some moment ago: why will Her Majesty’s Government not undertake a comprehensive audit of the costs and benefits of our EU membership?
Mr Lidington
There are some elements of EU membership that could be put into such a calculus, but we cannot measure, in the way my hon. Friend wishes, things such as the diplomatic leverage that we obtain by being able to work in partnership with other European countries. [Hon. Members: “No!”] Some will differ from me in that analysis, but the fact that we were active members of the European Union helped us to achieve a package of sanctions against the Iranian nuclear programme last year that was tougher and more effective than either the United States or the Government of Iran believed possible. We were there at the table, so we were able to exert a powerful influence, in partnership with others, in the defence and enhancement of our national interest in securing sanctions against that programme, and we were able to overcome opposition from a number of other member states that weighed in the balance some very big commercial interests in Iran. That sort of advantage does not lend itself easily to the calculation that my hon. Friend invites me to make.
There are all sorts of things wrong with the EU as well, and we can find other occasions to debate its flaws, but the Government’s position is that membership of the European Union is one of the key ways in which we seek to advance the United Kingdom’s influence in the world.
Mr Lidington
I do not regard as insignificant or risible giving the people of the United Kingdom a final say over treaty changes that transfer new powers and competences from this Parliament to Brussels. We would have much more public confidence in politics, and a much better chance of positively putting the case for British membership of the European Union, if the public did not feel so betrayed by the absence of any endorsement, by means of a referendum, of past treaty changes.
On new clause 7, which my hon. Friend the Member for Witham moved, my response to our hon. Friend the Member for Kettering (Mr Hollobone) indicates why some of what it seeks is not suitable. Subsection (2)(a), for example, would require a report on
“any statements in the previous 12 months under section 5”—
both the statement about whether such a treaty or decision transfers power or competence, and the statement on whether any transfer under Clause 4(1)(i) or (j) is significant.
It would not be onerous to include that requirement in an annual report, but there are unlikely to be so many treaties or decisions in any one year, so there would not be any real value in that information being collected and set out in an annual report. Under the Bill, there will be a minimum requirement for a written ministerial statement and an Act of Parliament before any such measures can be agreed, and that seems to represent sufficient transparency.
On repatriation, I listened to my hon. Friend the Member for Witham, who put her argument very powerfully and cogently. She knows that, under the coalition agreement, the Government are committed to examining the existing balance of competences and what they mean for Britain, and we continue to look at that issue.
The new clause raises some very important issues, and I welcome my hon. Friend’s aims of seeking much better value for money, more transparency and vigilance against competence creep within the European Union. Those matters are not for the Bill, however, which deals with treaty changes and ratchet clauses transferring powers or competences to the EU. We need to focus immediately on the individual issues to which she refers, measure by measure, as they arise in the Commission or as individual items of legislation, rather than taking up time preparing retrospective reports that I fear would be of largely historical interest.
What is relevant and important to the work of Ministers throughout Whitehall is for the Government to pursue with Parliament ways in which we can improve the scrutiny of EU issues and the opportunities for Parliament to hold Ministers to account for their stewardship of the United Kingdom’s interests in European discussions. I therefore urge my hon. Friend to withdraw her new clause.
Priti Patel
I thank the Minister for his response to my new clause. I shall say a few words, because a number of issues arose in his reply.
There is a range of issues that clearly must be aired and discussed—that was the purpose of my new clause—in relation to competence creep and the ever-increasing powers that have been sucked away to Europe over the years. The Minister has a valid point about the proposed report being more retrospective, and if nothing else his assurances about the role of this House and Parliament in the scrutiny not just of legislation but items as they arise, and about the forward-look in terms of the Commission’s work programme, are absolutely vital. As we heard in the earlier debate, a number of assiduous Members will continue to bring those issues to the Floor of the House, to pursue them and to persist with them.
I intend to withdraw my new clause, but my final point to the Minister is about cost-benefit analysis, which is fundamental. The Government could still do a lot more to assure the British public that their hard-earned money was being spent more effectively when it comes to EU matters. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 11
Provision for further referendum
‘In order to meet the referendum condition referred to in section 2, section 3 and section 6 of this Act, the Act providing for the approval of—
(a) a treaty under the terms of section 2; or
(b) a decision under the terms of section 3; or
(c) a decision or draft decision under section 6
shall also provide for a further binding referendum to be held on continuing United Kingdom membership of the European Union, if the majority of those voting in a referendum held under the terms of the relevant section are opposed to the ratification of the treaty, decision or draft decision, as the case may be.’.—(Mr Bone.)
Brought up, and read the First time.
Mr Lidington
This has been a passionate debate. Although I am unable to accept new clause 11 on behalf of the Government, I admire the integrity, commitment and, as others have said, the parliamentary ingenuity, of my hon. Friend the Member for Wellingborough (Mr Bone). As befits somebody who is assiduous in his attendance and fierce in his affection for, and loyalty to, the House of Commons as an institution, he has gone through the rule book and explored parliamentary procedure to ensure that an issue about which he cares so strongly has ample time for debate on the Floor of the Committee.
I want to do my hon. Friend justice by responding in detail on his proposal on its merits. The difficulty is not simply that new clause 11 seeks to do something that is not within the scope of the Bill as the Government have framed it, but that it raises a number of important political questions.
The Second Deputy Chairman of Ways and Means (Dawn Primarolo)
You are correct, Mr Bone, that for a new clause to be selected, it must be in order. The Minister probably did not quite mean what he said.
Mr Lidington
I qualified my statement, Ms Primarolo, by saying, “as the Government have framed the Bill”. The intended purpose of the Bill is to provide both additional parliamentary scrutiny and the ultimate sanction of a public referendum on decisions that would transfer powers and competences from this country to the EU. The Government’s purpose was not to provide for the sort of additional referendum that my hon. Friend the Member for Wellingborough seeks. It is indeed a tribute to his parliamentary skill that he has found a way, within order, to seek to address that issue.
The Second Deputy Chairman
Good say, Minister. The proposed new clause is in order. Whether the Government actually like it or think that it should be in the Bill is the purpose of this debate. I think we have clarified that now.
Mr David
I do not wish to intrude upon private grief among Conservative Members, but I agree with you absolutely, Ms Primarolo, and you are absolutely correct that there is no question of the proposal being out of order.
The Minister gave a very interesting summation of the Bill, but he did not mention one crucial aspect of it. He did not say that referendums will not apply in this Parliament.
Mr Lidington
Assuming that the Bill gains parliamentary approval and Royal Assent in the normal way, it will apply during this Parliament from the time when it comes into effect. As I said earlier today, one illustration of that is that the treaty change proposed by Germany and being taken through EU institutions at the moment will have to be ratified by primary legislation rather than simply by a resolution of both Houses, as would be the case under the current legislation, which was introduced by the previous Government in 2008. What distinguishes this Parliament is that the Government have said, as part of their coalition agreement, that we do not intend to agree at European level to any proposal to amend the treaties or invoke passarelle clauses that would require a referendum under the terms of the legislation that we have been debating for a numbers of days now.
The referendums authorised under the Bill are intended to be final decisions. They will give people the opportunity to judge whether a particular proposal to give new powers to the European Union is in the national interest. One of the things that is troubling about the new clause is that it implicitly assumes that those who vote no to a particular proposition also want to challenge the UK’s membership of the EU, but I do not think that that can be taken for granted. As other hon. Members have said, there is a risk that some people could be influenced in how they vote on the substance of a proposal by a calculation of whether it would be likely to produce the end result of an in/out referendum. Such electors might take into account his or her views on the in/out proposal and not just the pros and cons of the measure on which they are being invited to cast a vote.
I think that my hon. Friend the Member for Wellingborough overlooks the problem of a possible succession of referendums on Britain’s membership of the EU. It is possible to imagine that under a future Government—not this one—referendums on moving to qualified majority voting for common foreign and security policy and on joining the euro might be scheduled for two successive years. The new clause would leave open the possibility of an in/out referendum after one—or, indeed, both—of those referendums, because under his new clause a rejection of the first proposition would trigger an in/out referendum, which might result in the public deciding to stay in the EU. A second referendum on a treaty change might come forward 12 months later and also be rejected, and then, in the course of less than a year, we would find ourselves with two successive referendums on the UK’s membership of the EU. That is not a sensible way in which to conduct our relationship with the countries of the EU.
Nor does the new clause address what would happen if there were two questions on a ballot paper in one day, which we debated earlier. Why should a positive vote for one treaty change proposition and a negative vote for a second trigger a referendum? One cannot read into how people cast their votes on treaty change proposals what their view would be of the desirability of a referendum on membership. More fundamentally, however, the new clause does not capture the range of opinions held by the British people. The hon. Member for Vauxhall (Kate Hoey), whom I completely respect on these matters, said that she wanted people to be able to express a view on the direction that the EU was taking. However, that is not what people are being offered through the new clause, of course. They are being offered the opportunity not to express their view on the direction of the EU, but to say whether the UK should remain a member.
Mr Lidington
Withdrawing from the European Union is not the only choice for people who are dissatisfied with the current arrangements. There are plenty of people around who want Britain to remain a member of the European Union, but to have certain powers currently exercised in Brussels repatriated to this country. After all, that was the combination of views expressed at the last general election in the Conservative party manifesto, which sought the repatriation of certain powers, but said:
“A Conservative government will play an active and energetic role in the European Union”.
General Affairs Council/Foreign Affairs Council
David Lidington Excerpts(13 years, 3 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Europe (Mr David Lidington)
The Foreign Affairs Council and General Affairs Council will meet in Brussels on 31 January. My Right hon. Friend the Foreign Secretary will attend the Foreign Affairs Council. I will attend the General Affairs Council.
general affairs council (gac)
Hungarian Presidency
The Hungarian Foreign Minister will formally introduce Hungary’s presidency priorities (see link below). Hungary intends to focus on three economic issues: the need to conclude discussions regarding the design of the new “European Stability Mechanism”; the need to reach a general approach on the economic governance package; and to reach final agreement on EU 2020. Other topics expected to be highlighted include pushing for a Commission strategy on Roma; beginning discussions on the Danube strategy; working towards entry into Schengen by Bulgaria and Romania; enlargement; and creating concrete projects to promote the eastern partnership.
http://www.eu2011.hu/priorities-hungarian-presidency
Follow-up to the December European Council and preparations for the February European Council
The presidency has invited the President of the Council, Herman Van Rompuy, to discuss preparations for the European Council of 4 February. The February European Council agenda covers energy and innovation. Discussions should focus on the “Energy 2020” strategy (further detail below) and how to increase levels of innovation in the private sector. There may also be some discussion of economic governance and the European stabilisation mechanism, although they are not officially on the February European Council agenda.
More information on this meeting, and other EU meetings this month, can be found at:
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/fc/118910.pdf
Details about the “Energy 2020” strategy can be found at:
http://ec.europa.eu/energy/publications/doc/2011_energy2020_en.pdf
European Semester: Annual Growth Survey
Ministers will consider the European semester. The European semester will put EU and member state discussions of economic priorities and structural reforms on a common timetable. There will also be a presentation by the presidency of the Annual Growth Survey (AGS) which covers key economic themes for the EU and national action over 2011, and identifies priorities to tackle. There will not be conclusions on the AGS, as the main work will be carried out by other Council formations: namely ECOFIN and EPSCO. We broadly support the focus on growth. Alongside fiscal consolidation and a more competitive financial sector, a comprehensive structural reform programme will be essential to improving competitiveness.
Roma
The presidency is expected to initiate a procedural discussion on future work on the Roma ahead of an April Commission presentation of a framework strategy on Roma inclusion. The Government support this discussion and work in the EU to share best practice and assist member states in promoting Roma inclusion. However, we are also clear that primary responsibility for the Roma lies with member states and that there cannot be a one-size-fits-all approach.
Danube Region Strategy
The Danube region strategy is a complex sustainable development strategy for the regions in the catchment area of the Danube river. It covers: transport/economic/industrial issues; environmental/food supply; and cultural/heritage/education. The UK broadly welcomes the strategy, although a full evaluation of the projects is needed.
foreign affairs council (fac)
Sudan
We expect conclusions welcoming the timely, credible and peaceful conduct of the southern Sudan referendum as a crucial step in implementing the Comprehensive Peace Agreement (CPA). The conclusions should also look forward to the publication of the results of the referendum, and emphasise the need for resolution of the remaining CPA issues.
On Darfur. we believe that the conclusions should express concern about the increasing violence and poor security situation in Darfur, and the need for genuine engagement by all parties in the peace process. We support proposals for a Darfur-based political process when the conditions are right, and which complement the ongoing Doha process.
Lebanon
Ministers will discuss latest developments in Lebanon following the collapse of the Lebanese Government. The EU’s support for the special tribunal in Lebanon was most recently expressed in the November 2010 conclusions (see link below). At this stage, new conclusions are not expected, though the position could change depending on events on the ground.
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/117948.pdf
Côte d’Ivoire
We expect conclusions expressing concern over the situation in Côte d’Ivoire. We would like the conclusions to call for the peaceful and swift transfer of power from the former President Gbagbo to the elected President Ouattara and to reiterate our support for the robust stance taken by ECOWAS (the Economic Community of West African States) and the African Union in upholding democracy in the region and throughout the continent. Ministers may also discuss EU support to UNOCI (United Nations Operation in Côte d’Ivoire) and African initiatives to facilitate reconciliation.
Sahel
The EU Sahel strategy is currently being developed by the European External Action Service in conjunction with the EU Commission. We are supportive of this strategy in principle; a comprehensive EU approach on security and development strands in the Sahel is worthwhile, as underlined by the kidnap and murder of two French nationals in Niamey on 7/8 January. However, any UK final support would depend on a detailed analysis of the strategy—which we have not yet seen in full—and its resource implications.
Freedom of Religion
In response to the recent attacks against religious communities in a number of countries, we expect conclusions to be adopted on the issue of “Intolerance, discrimination and violence on the basis of religion or belief”. We believe these conclusions should send a strong statement of the Council’s condemnation of these events and its commitment to upholding the right to freedom of religion or belief. We also believe that the conclusions should signal the European Union’s determination to promote freedom of religious belief through a clear commitment to undertake further practical measures in this area.
Belarus
We expect conclusions to: reiterate EU statements to date on the flawed December elections; to announce the FAC’s decision to impose travel restrictions and asset freezes on those responsible for the fraudulent elections and for the subsequent violent crackdown on the opposition, civil society and representatives of the independent media; and to set out the EU’s intention to support the Belarusian people and civil society. The Government’s aim is to focus the discussion on the need to develop a coherent, long-term strategy for Belarus. Baroness Ashton made a statement on Belarus to the European Parliament on 19 January:
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/11/34&format=HTML&aged=0&language=en&guiLanguage=en
Strategic Partners
Baroness Ashton is expected to provide a short debrief on her presentation to the December European Council on the EU’s relations with its strategic partners, setting out next steps in this work programme.
Russia
We expect Ministers to discuss the formation of a more balanced partnership between the EU and Russia; one which promotes and strengthens mutual prosperity and is underpinned by a legally-binding, ambitious new EU-Russia agreement. It is likely that frozen conflicts in the former Soviet Union will be discussed, including the need for pressure on Russia to deliver on Transnistria. Climate change and energy, and rule of law and modernisation in Russia are also likely to be raised. Ministers will address the human rights situation in Russia, following a number of recent, well-publicised cases of concern. There will also be discussion of how to deliver progress on the EU-Russia agreement, improve the architecture of EU-Russia co-operation, and improve internal EU working methods on Russia policies.
Additionally, Ministers may reflect on the shocking act of terrorism at Moscow’s Domodedovo airport on 24 January. The Foreign Secretary’s statement on this can be seen at the link below.
http://www.fco.gov.uk/en/news/latest-news/?view=News&id=539155782
Iran
Baroness Ashton is likely to provide an update on the E3 plus 3 talks with Iran in Istanbul on 21-22 January. Due to Iran’s insistence on unacceptable pre-conditions, no further talks are scheduled. Following the talks in Istanbul, Baroness Ashton released a statement on behalf of the E3 plus 3 on 21 January:
http://www.consilium.europa.eu./uedocs/cms_Data/docs/pressdata/EN/foraff/118915.pdf
We are also hope there will be a discussion of proposed EU measures to tackle Iran’s poor human rights record.
Tunisia
Ministers will discuss EU support for Tunisia following recent events. We expect conclusions to be adopted which call for a stable and inclusive transition to elections as soon as practicable, and restate the EU’s support for political and economic reform in Tunisia. The Government consider that free and fair elections, as promised by Tunisia’s interim Government, are essential for Tunisia’s stability; and we firmly support EU assistance in this area.
Middle East Peace Process
Baroness Ashton will report back from her recent trip to the middle east (see link), and outline preparations for the 5 February Quartet meeting in Munich. We also expect her to update Ministers on progress for proposals to improve the humanitarian situation in Gaza that were agreed at the FAC in December 2010.
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/118717.pdf
European Union Bill
David Lidington Excerpts(13 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Europe (Mr David Lidington)
Amendments 24 and 25 would require that before the EU can accede to the European convention on human rights, Parliament would need to approve the EU’s accession by Act of Parliament. At present, the EU and its institutions cannot be held to account for the fulfilment of its existing international legal obligations by the ECHR in the same way as the EU member states all can. Accession by the EU to the convention would close this gap.
EU accession to the ECHR is, as I think my hon. Friend the Member for Daventry (Chris Heaton-Harris) acknowledged, already expressly provided for in the EU treaties, as amended by the treaty of Lisbon. Article 6(2) of the treaty on the EU provides that
“the Union shall accede to the ECHR”.
Mr James Clappison (Hertsmere) (Con)
I am sure that in his usual persuasive way my right hon. Friend will give us a very good account of the legal case for the EU acceding to the ECHR. I hope that as he does so he will dispel the suspicion that is forming in many people’s minds that the real reason, never mind the complicated legal rationale that he has given, is to put the EU on the same footing as the other signatories to the convention, which are all member states, and to give the EU the character of a member state. It is only member states that have acceded to the ECHR, and all the members of the EU have done so. I am sure that my right hon. Friend will give us a very thorough explanation, which will also serve to dispel that suspicion that is forming in many people’s minds.
Mr Lidington
Certainly I agree that it is important to keep in our minds the distinction between the member states and the EU as an entity. It is therefore important that the treaties set out plainly that accession to the convention would not affect the EU’s competences in any way, and that any extension or enlargement of EU competence would therefore have to be obtained by the normal process of treaty amendment, which is subject to the various checks that we are laying out in this legislation. Under protocol 8 to the treaties, it is also made clear that the Union’s accession to the ECHR will in no way affect the situation of the individual member states as parties to that convention. So the accession by the EU to the convention cannot give further powers or competences to the EU; nor will it affect member states’ own standing with respect to the ECHR.
In dealing with Council of Europe matters, the Government are always on the alert to avoid creating either the impression or the reality that EU member states, which are all individually parties to the ECHR, are acting as a bloc. The situation is unusual, because the Council of Europe is an institution in which EU member states have a majority over other state parties. Therefore, it is important that that distinction of principle to which my hon. Friend alluded is maintained.
Mr Clappison
May I say—I hope the Minister will appreciate this—that he has been extremely assiduous in attending to Council of Europe matters and exemplary in discharging his ministerial responsibility in respect of them? He made an extremely important point about the Council of Europe, which is that it includes many other nations that are not EU member states. It is a good thing for countries that are members of the Council of Europe to be dealt with individually, including those that also happen to be EU member states, so as not to create in any sense the impression that there is an EU bloc, because that has a bad impact on human rights in Europe, extending more widely than just the EU.
Mr Lidington
I agree. Quite apart from any constitutional or legal significance, it would be politically and diplomatically counter-productive to go down the route that my hon. Friend has rightly warned against. Whether the UK as state party should continue to have the relationship with the European convention on human rights that we currently have is a matter of intense in the debate in the House, and Members on both sides of the Committee have their views on that.
The point for the purposes of this afternoon’s considerations is that the accession of the EU to the ECHR would make no practical difference to the UK’s position. The Government see some advantages in EU accession, because the European Court of Human Rights in Strasbourg could act as a direct check on how EU institutions exercise their powers, in exactly the same way it acts as a check on the actions of all other signatories to the convention. I know that some of my hon. Friends will say that they believe that the European Court of Human Rights should not have that type of authority over this country, but I say to them that it is my belief that the EU and its institutions should be held to the same standards on human rights as we expect of member states.
Jacob Rees-Mogg (North East Somerset) (Con)
I thank the Minister for giving way and for his patient responses to so many questions. I wonder whether it is necessary for the EU to sign up to the ECHR, because we have already debated the question of how EU law comes into effect in this country, which is by Act of Parliament. Therefore, any decision made by the EU can come into effect here only under our own laws, which are of course already justiciable under the European Court of Human Rights. This is not so much an added safeguard as a symbolic step towards creating the European Union as a state.
Mr Lidington
We certainly need to guard against that. The Government have accepted, as did the Conservative party before the general election, that the ratification of the Lisbon treaty is a political and legal reality and that we will work within that context. The treaty states that the EU shall accede to the ECHR, and it also provides that the judgments of the European Court of Human Rights should be considered, once accession has taken place, as general principles of EU law. In those circumstances, one would expect that those in the Commission who are responsible for drafting European directives and other legislative initiatives would have regard to the judgments of the Court and would frame draft European legislation in order to meet the standards of that jurisprudence.
Jacob Rees-Mogg
Will the Minister clarify Her Majesty’s Government’s view of the Lisbon treaty, because it seems to me that they are in quite a strong position to say that things that have not already been done, which are subject to unanimity before they can be implemented, need not be implemented by the Government?
Mr Lidington
There is a clear statement on the face of the treaty that the EU shall accede to the European convention on human rights, and the Government’s position is that we accepted that statement and that commitment as part of the Lisbon treaty. As I hope to explain shortly, the law and our procedures in this House provide a number of safeguards that, I believe, will enable the House of Commons and the other place to scrutinise in detail any proposal for accession when it comes forward.
Mr Lidington
I will give way, but a large group of amendments is listed on the Order Paper for consideration later today, and those amendments stand in the names of many hon. and right hon. Members. I want to try to limit my comments on the early group so that we have time for a thorough debate on those amendments on justice and home affairs, which I think the Committee would expect.
Mr Cash
I have already been helpful to the Minister in limiting my earlier remarks. Having said that, I would point out to him that this afternoon the European Scrutiny Committee has considered the document, “EU Accession to the European Convention on Human Rights”, and set out in full, for the purposes of ensuring that the House is properly informed about what all the arguments amount to, both the questions and answers that he has given to that Committee. In particular, we include his letter of 30 June, our letter of 8 September and his letter of 21 September, and the detailed matters that arose on that, which take up two pages. We include our letter of 27 October and the explanatory memorandum of 15 November. The idea that the Minister can slide past this—
Mr Lidington
I look forward with relish to studying the European Scrutiny Committee’s conclusions.
There are already a number of ways for the Government and Parliament to exercise control over the precise terms of the EU’s accession agreement. Article 218(8) of the TFEU makes it clear that accession would be subject to unanimous agreement by the Council and that the Council’s decisions to conclude the agreement cannot enter into force until it has been approved by all member states individually and in accordance with their respective constitutional requirements, which are entirely a matter for each member state.
In addition, all EU member states are also parties to the European convention on human rights in their own right and will also be parties to the accession instrument. As with any other treaty to which the UK is party, the final accession agreement will be subject to the procedures under part 2 of the Constitutional Reform and Governance Act 2010—the codification of the Ponsonby procedures. That requires the agreement to be laid before Parliament for 21 sitting days, during which time either House may resolve that it should not be ratified. On top of those two levels of control, clause 10 of the Bill will add an additional layer of accountability by requiring a positive vote in favour of the agreement in each House before the UK could approve the EU’s decision to conclude such an agreement.
Chris Heaton-Harris
I do not want at all to talk about the detail of the European convention on human rights, but I make the point that we will probably need an Act of Parliament, or a resolution as it stands. I do not intend to press the amendment, but I wanted to ensure that the Minister completely understood my reasons for tabling and for wanting appropriate scrutiny of the points that it raises.
Mr Lidington
I completely understand my hon. Friend’s motives, and if I may say so without bringing him into complete disrepute with a number of other hon. Members on the Back Benches, he has played an extremely active and constructive part in our debates in Committee and has adeptly and correctly spotted some loopholes in the Bill that have led the Government to bring forward amendments to respond to the them.
Given that a number of control mechanisms already exist, that the accession agreement does no more than spell out the detail of something already provided for in the treaties and, most importantly, that there is no practical effect of EU accession to the ECHR on the position of member states, there is no necessity for the additional requirement of an Act of Parliament. I therefore welcome my hon. Friend’s intervention and hope that he will not press the amendment to a vote.
Chris Heaton-Harris
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn
Mr David
I thank the hon. Member for Stone (Mr Cash) for providing an indication of what his Committee’s recent report says. We have heard over the last few days how important his reports have been in the consideration of this Bill. I also thank him for providing a useful context to the developing relationship between British law and European law.
During the last couple of days, we have heard a great deal from the Government about so-called direct democracy—enabling the people to make decisions themselves. However, it is worth remembering that the Conservative party has never been the party of devolution in Britain and it has always had a very limited definition of the European concept of subsidiarity. During the last few days, we have also discussed the exemption clause and the significance test—ways in which the Govt are substantially qualifying their apparent commitment to referendums. This afternoon, we go on to discuss the Government’s proposals for those issues that they deem, to quote the Minister for Europe, are “not of sufficient significance” to require a referendum.
Clause 7 sets out where primary legislation is required in such areas. It is interesting that the Government see Parliament playing a key role, but only on what it considers to be second tier issues—issues that do not require, to quote the Minister again, a “full-blown referendum”. Leaving aside the difference between a full-blown and a half-blown referendum, this differentiation between what is deemed appropriate for direct democratic decision making and for parliamentary decision-making well illustrates the incoherence and contradictions at the heart of this Bill.
For example, yesterday we heard from the Minister how under schedule 1 to the Bill any change to the appointment procedure of the advocates-general of the ECJ would attract a referendum. However, according to the letter that the Minister sent to his Back Benchers in November, a move from unanimity to qualified majority voting for decisions concerning the number of advocates-general would not attract a referendum, but would be covered by clause 7. Perhaps he will be kind enough to explain to the Committee why there are to be different procedures on those two related issues. It would be difficult in the extreme for any Government to explain why a referendum would be held on the one issue, but not the other.
It should be stressed that clause 7 is not about stopping changes at either the Council of Ministers or the European Council, because any member state can block a change to an internal passerelle clause. Clause 7 is only about providing parliamentary approval if the Government have already agreed to use one of the decisions set out in the clause. As my hon. Friend the Member for Wolverhampton North East (Emma Reynolds) pointed out yesterday, it would be extremely difficult for a Council decision to abolish unanimity in respect of the adoption of any future acts. Indeed, Sir John Grant, the former United Kingdom permanent representative to the European Union put the matter extremely well in his evidence to the European Scrutiny Committee when he said that
“everybody’s got to agree that some of them are going to be outvoted.”
It is extremely unlikely that such a scenario would arise, so in reality the impact of clause 7 will be very small indeed.
After clause 7 we have clause 8, which would give Parliament a greater role over the so-called flexibility clause in the Lisbon treaty, and after that there is clause 9, which deals with justice and home affairs issues. Yesterday we discussed how some justice and home affairs issues would be covered by a referendum; today we discuss some justice and home affairs issues that will not. In particular, I want to refer to opt-ins to measures
“under the area of freedom, security and justice”.
Interestingly, the Bill does not really deal with one extremely important area. Britain has a temporary opt-out in the Lisbon treaty with regard to certain justice and home affairs measures. Under that protocol there are transitional provisions that provide for the United Kingdom to participate—or not—in certain European Union justice and home affairs measures. For example, the Government decided not to opt in to the draft EU directive on human trafficking. They decided not to opt in to that directive at the start of the legislative process, making the same decision during that process and at its conclusion, although I understand that they are to review the position when it comes to the adoption of the directive.
We believe that this is an important issue—an issue that clearly has to be addressed on an international and a European basis. I understand that the Government have decided to opt in to the sexual abuse, sexual exploitation of children and child pornography directive—and quite right too—but what about the issue of international human trafficking? Our view is clear: it is an important issue that Britain should be tackling in co-operation with our European partners. However, the issue before us today is whether it is sensible, according to the Government’s own logic, to agree to their proposal that such opt-in provisions should be subject to parliamentary scrutiny, but not a referendum. We fully believe that there should be more parliamentary scrutiny. That is why we agreed to an enhanced role for national Parliaments in the Lisbon treaty. However, given that the Government have been arguing for referendums on important issues, why are they not proposing a referendum on such an important issue?
According to the protocol to the Lisbon treaty, the United Kingdom has an opt-in provision that will last for four and a half years. After that, Britain will be fully part of the justice and home affairs decision-making process. Last night we heard that the Government had absolutely no intention whatever of allowing referendums to take place before 2015 at the earliest. The question that I ask is: why? According to the Government’s own logic, if there are to be referendums on important changes that affect the United Kingdom, there should surely be a referendum on this justice and home affairs opt-in during the course of this Parliament. Nothing better shows the inconsistency and incoherence of the Bill than this. It is a muddled clause in a very muddled Bill.
So much for clause 9. Next is clause 10. If what we have been discussing does not make things complicated enough, clause 10 sets out a further six decisions that require parliamentary approval. It is as though the Government have gone out of their way to create a piece of legislation that is deliberately confusing, obsessively complex and designed to confound every constitutional expert in the land.
Let me be clear: we strongly support greater parliamentary involvement and greater parliamentary scrutiny. That is why Baroness Ashton, when she was Leader of the House of Lords under the previous Government, made a statement setting out commitments by the then Government for more parliamentary scrutiny on actions arising from the justice and home affairs protocols. Last week, this Government made a statement that reaffirmed those commitments, and I welcome that. However, we are genuinely concerned about the lack of clarity. This is an obtuse and even eccentric way of addressing serious constitutional issues. They are issues that affect the people of this country on a day-to-day basis, and the country and the House deserve better than the Bill before us today.
Mr Lidington
May I first respond to my hon. Friend the Member for Stone (Mr Cash)? He spoke with his characteristic dignity, courtesy and thoroughness about the issue of EU accession. I am sure that he will understand that I want to look carefully at the report from his Committee, rather than responding on the hoof this afternoon. As he would expect, a subject of this significance needs to be discussed by Ministers collectively in order for the Government to come up with the thorough and considered response that every member of his Committee deserves.
Clause 7 fulfils the pledge made in the coalition programme for government that
“the use of any passerelle”—
or ratchet clause—
“would require primary legislation.”
It sets out that the Government may not agree to the use of a number of passerelles, or ratchet clauses, in the EU treaties unless the approval from this House is specified in an Act of Parliament.
As the Foreign Secretary and I have made clear in the past, there is no straightforward legal or treaty definition of a ratchet clause. The European Union (Amendment) Act 2008 listed 10 such clauses and limited the definition to use of the simplified revision procedure and to nine articles that allow for the giving up of the British veto in specific areas. When we considered that commitment in the coalition programme, we decided that that definition was insufficient. So for a start, we have put a referendum lock on many of the passerelles listed in the 2008 Act. We debated those matters earlier in our Committee proceedings. Others we have subjected to a primary legislation lock under clause 7. So the use of article 48(7) to give up the UK veto in an area that we did not include in schedule 1 to the Bill would, none the less, still require full parliamentary approval in an Act of Parliament. The same principle applies to any proposal to move to qualified majority voting in an area of enhanced co-operation in which the UK is a participant.
Ms Gisela Stuart
I apologise if I have missed something that the Minister has already said, but are the lists setting out what requires a referendum and what requires other procedures indicative or exhaustive?
Mr Lidington
What is clear in the Bill is that anything under article 48(7) relating to the giving up of a UK veto or a move to qualified majority voting would require primary legislation here. My hon. Friend the Member for Daventry questioned me on those areas of policy, defined in various parts of the treaty, where article 48(7) could be applied to move from the special to the ordinary legislative procedure, but where QMV still applies now and would apply in the new circumstances. If it would help the hon. Lady, I will happily copy the letter I write to my hon. Friend the Member for Daventry to her as well.
We took the opportunity in working on this Bill to take a fresh look at this issue. We concluded that a general principle could be applied—that articles already in the treaties that provided a “one-way” option should also be considered to be passerelle clauses. These one-way options add to or reduce what could be done within existing areas of EU competence, but without changes to either voting rules or legislative procedures. We felt that they should be subject to primary legislation.
We also looked hard at articles that modify the composition or rules of procedure of existing EU institutions and bodies. We will come on to most of those when we debate clause 10. However, we felt that the article allowing for the amendment of the number of Commissioners was a highly significant article as it could be used to negotiate a reduction in the current requirement that every member state should nominate one Commissioner. We therefore proposed, because of the importance of that matter, that any such decision should require approval by primary legislation.
Chris Bryant (Rhondda) (Lab)
Is it not ludicrous that there are so many Commissioners? There are far too many of them to give them all proper jobs. Half of them do not have a proper job now. We have ended up with a system under which each country gets one Commissioner, but they are not meant to be there as “the British Commissioner”. They should work together as a commission. When it comes to state aid, it is particularly important that they act independently, not as a national representative.
Mr Lidington
The hon. Gentleman, my predecessor in office, puts a strongly held view with characteristic cogency. Whatever the merits of his argument, it seems to me that departing from the principle that each country should be entitled to nominate a Commissioner would be a change of major significance to the way in which the European Union is organised and run. As such, it would seem appropriate, whatever the merits or demerits of the proposal, that this should be subject to primary legislation rather than any less demanding form of parliamentary scrutiny.
Mr Lidington
I am conscious of the pressure on time and I am going to try to make some progress.
Let me respond to the challenge from the hon. Member for Caerphilly (Mr David) about the numbers of advocates-general. There are not 27 advocates-general, so we are not in the position of having one for every member state, but it is important that we retain the veto on this, and we have no intention of giving it up.
It is important for the United Kingdom to be able to approve the appointments of judges and advocates-general, and we felt that it was sufficiently important to be included in schedule 1.
Mr Lidington
There will be other opportunities for us to debate the number of advocates-general, and I am sure that the hon. Gentleman is ingenious enough to identify them. He and his hon. Friends have managed to weave the issue into every speech they have made so far at every stage of the Bill’s progress.
Mr Lidington
I am afraid that I am going to deny myself the pleasure of hearing a further explanation from the hon. Gentleman.
The other articles listed in clause 7—covering decisions on provisions for elections to the European Parliament, on the system of own resources of the EU, and on the adoption of provisions to replace the excessive deficit procedure—already require primary legislation before this country can agree to them, and clause 7 replicates those earlier requirements. Decisions under the articles listed in clause 7(2) would require approval in accordance with the constitutional requirements of the member state before the member state confirmed its approval of a decision. The four articles that I mentioned are also subject to enhanced parliamentary control in Germany following the judgment of the Federal Constitutional Court on the Lisbon treaty.
For the other decisions listed in subsection (4), primary legislation will be needed before this country votes in the Council of Ministers or the European Council. In other words, the Act will be needed before the United Kingdom can cast its vote. We intend that to happen before the final political decision to use the ratchet clause is made at European Union level but after official-level negotiations have been completed, so that it is clear to Parliament that that is the final text and it can make a decision on what is proposed without the risk of further changes.
Unlike the 2008 Act, the Bill does not contain a disapplication provision giving Ministers discretion to approve a decision that has been amended since being approved by Parliament. That is deliberate. We want Parliament to approve the final version, although it will of course be examining the proposals from an early stage under the existing arrangements for parliamentary scrutiny of European legislation.
I should emphasise that these provisions will apply only when the Government intend to agree to a measure. If the Government of the day did not support the exercise of any of the ratchet clauses, they would simply block their adoption. However, the pledge in the coalition agreement and the commitment in the Bill provide that when the Government would be in favour of such a decision, Parliament must approve it first.
Chris Bryant
I did not intend to speak, but as the Minister refused to give way—it was the first time I had ever seen a Minister do that in Committee—I wanted to make one very brief point. [Interruption.] I see that the Whip is fulminating. He can go and fulminate on his own.
The problem with the Bill, and with clause 7 in particular, is that it will make it more difficult for us to negotiate with other countries to achieve the outcomes that we want for the British people. Let us suppose, for example, that France introduced a law similar to this and we tried to negotiate a proposal that is in the coalition agreement, namely that we should end the ludicrous caravanserai between Brussels and Strasbourg. It is laid down in the treaties that the European Parliament shall have two places in which to sit, which is ludicrous given the vast amount of money that is spent on the two buildings, the vast inconvenience caused to people, and the creation of a monopoly air service which is also ludicrously expensive. Moreover, I do not think that all that has resulted in a better policy and decision-making process. However, if the French Government had a law such as this, they would simply block every treaty change that might be in our interests.
Chris Heaton-Harris
I will be brief, Mr Evans. I had quite a decent speech written on these amendments, but I want to move on to the meat of the justice and home affairs matters that we will discuss shortly. With regard to clause 8, the Bill is a definite improvement on the current situation, and I am pleased that the presumption is that an Act is required. My concern is about the get-out clause, in clause 8, that my hon. Friend the Member for Stone (Mr Cash) has just mentioned, according to which the Minister can table a statement that certain matters are exempt.
Amendment 26 is not a blanket amendment that would require everything to have an Act, as would my hon. Friend’s amendment, because I understand that some things might need a lesser level of scrutiny in this place, but I am concerned about proposals that would prolong the existing flexibility clause or extend it to another country. Those are the two areas that should be approved by an Act. I am happy to see other areas approved by resolution in each House. The example that my hon. Friend might have been searching for is that relating to balance of payments loaned to non-eurozone member states in 2002 that came through such a flexibility clause, similar to the article 122 measures that we have just seen. That is the explanation for my amendment, and I will be interested to hear the Minister’s response.
Mr Lidington
I am grateful to my hon. Friends the Members for Stone (Mr Cash) and for Daventry (Chris Heaton-Harris) for the courteous and logical way in which they have set out their views and spoken to the amendments.
Clause 8 provides for the prior parliamentary approval of a decision by the Government to support future uses of article 352 of the treaty on the functioning of the European Union through an Act of Parliament, subject to certain defined exceptions. Article 352 can be used to adopt measures in order to attain one of the EU’s objectives where the existing treaties have not provided the specific legal base on which to do so.
The measures concerned are, as my hon. Friend the Member for Stone acknowledged fairly, subject to the British veto, require unanimity among all member states and must remain within the confines of the EU’s objectives. Nevertheless, because of its enabling nature, the use of article 352 of TFEU has led in the past—quite understandably, I happily concede—to concerns that it can be used to facilitate competence creep. It is an article in whose use the scrutiny Committees in both Houses have taken a great interest, and I am sure that that interest will continue.
In responding to my hon. Friends, I will start by saying that the use of article 352 is now subject to much greater constraints than it was prior to the entry into force of the Lisbon treaty. In particular, it must be read in conjunction with declarations 41 and 42, annexed to that treaty. They set out four criteria that govern the application of the article. First, article 352
“cannot serve as a basis for widening the scope of Union powers beyond the general framework created by the provisions of the Treaties as a whole and, in particular, by those that define the tasks and activities of the Union”.
It is also important to make the point that a fair number of those policy areas that in the past involved the use of article 352 have now, in the Lisbon treaty, specific treaty bases of their own. That means that in future it will not be possible to bring forward measures on the basis of article 352, because an alternative, defined and specific legal base will exist.
Let me illustrate that point to the Committee. Sanctions have been the subject of article 352 measures in the past, but we now have article 215(2) of the Lisbon treaty, which deals with measures to apply sanctions against natural or legal persons and groups of non-state entities. Similarly, articles 212 and 213 of the treaty on the functioning of the European Union make provision for measures of macro-economic assistance to third countries—again a policy area for which, before Lisbon, article 352 was used as the legal base.
Secondly, article 352 cannot be used as a basis for the adoption of provisions whose effect would in substance be to amend the treaties without following the procedure that they provide for that purpose. Thirdly, the article cannot be used to harmonise natural laws in cases where the treaties exclude such harmonisation. Fourthly, the article cannot be used to obtain objectives pertaining to the common foreign and security policy.
Mr Cash
I understand exactly what the Minister says, but I am sure he will concede that that is all without prejudice to the fact that the measure is an expansion of what is a very wide provision in itself. For example, on the point that he has just made, there is a self-amendment provision in the treaty. It is difficult in such debates to get right down to the nuts and bolts, but basically this is a problem of an expanding treaty provision that was widely construed and widely drafted in the first place.
Mr Lidington
Given the history of the article’s use, I do not blame my hon. Friend for being properly sceptical and inquiring about how it might be used in future, but the Lisbon treaty now sets out explicit and specific treaty bases to govern policy areas and legislative measures that were previously the subject of article 352 authority, so it rules out the article’s future use to authorise measures in those categories.
Despite the greater restrictions on the use of article 352, and although it is not a ratchet clause under the definition that the Government have tried to apply consistently, given its significance we have decided that its use should be subject to greater parliamentary control. At the moment, as my hon. Friend acknowledges, its use is subject to the same parliamentary scrutiny as any other proposal for EU legislation, and the Bill makes it clear that this Government do not believe that that is sufficient, hence the inclusion of clause 9. The provisions will apply to proposals for which article 352 forms one part of the legal base and to proposals based on article 352 exclusively.
The article has been used in the past to authorise a range of important measures: to set up EU agencies such as the European Union Agency for Fundamental Rights; to set up things such as a community civil protection mechanism; and to enable member states to work together to mitigate damage from natural or man-made disasters. They were important decisions, and they exemplify exactly the sort of legislation that will require an Act of Parliament under this Bill before the United Kingdom is able to sign up to it.
I turn, however, to the exemptions. Where legislation based on article 352 is equivalent to a previous measure, prolongs or renews an existing measure or extends a previous measure in terms of its geographical scope, we do not think it right to require an Act of Parliament in order to agree to it—if the substance of the measure is identical to a previously agreed measure. If it is not identical, the measure should none the less be subjected to parliamentary approval by Act of Parliament. Similarly, we do not judge that an Act of Parliament is an appropriate requirement if the legislation simply repeals existing measures or consolidates, without adding to, existing measures made under that article. Any proposal for legislation based on that article, even if the Government consider that it is covered by one of the exemptions, would of course remain subject to the normal arrangements for the scrutiny of EU legislation and the powers of the two scrutiny Committees.
Mr Lidington
I am grateful to all hon. Members who have taken part in the debate, and in particular to my hon. Friends the Members for Daventry (Chris Heaton-Harris) and for Hertsmere (Mr Clappison) for their explanations of the contents of and the motives behind the amendments, and for their offer not to press them to the vote.
I say to the hon. Member for Birmingham, Edgbaston (Ms Stuart) that I will hold back my innate wish to be aggressive to the point of rudeness towards her, and that I am happy to find an occasion to discuss with her and interested Opposition Members the content of last Thursday’s written ministerial statement and how we can take matters forward. It will be better for the reputation of the House, of governance in this country and of how we as a Government and a Parliament handle justice and home affairs coming from the EU if there is the maximum possible agreement across the political parties on a structure that we hope will then endure.
Before I move on to the amendments, I should like to respond briefly to some of the points that have been made that are more appropriate to a stand part debate. I turn first to the hon. Member for Caerphilly (Mr David). I will not go on at him incessantly about this, but I found it strange that in a debate on so many amendments, covering such a wide range of justice and home affairs issues, he focused almost entirely on the contents of the next group of amendments that we are due to debate and on the parliamentary lock that would be imposed on the number of advocates-general. I shall try to satisfy him on that point.
We have included in schedule 1 any move to change the basis of decision making under article 19(2) of the treaty on European union from unanimity to qualified majority voting, so that it would be caught by the referendum lock. That article guarantees that there will be one judge from each member state in both the general court and the Court of Justice of the European Union. It is important that we ensure that we continue to have a veto, so that we can insist that there is a UK judge there.
That is important not just for the national interest but for the reason given by my hon. Friend the Member for Esher and Walton (Mr Raab) and others this evening. Four EU member states have common-law jurisdictions, although our Scottish colleagues in the House might argue that the UK is by no means entirely a common-law jurisdiction. Those states are ourselves, Ireland, Cyprus and Malta. For that reason, it is important to have a suitable arrangement for taking decisions about the number of judges, and a requirement for each member state to nominate a judge, so that we can effectively protect the representation of those four jurisdictions in the highest judicial councils of the EU.
The hon. Member for Caerphilly will also find in article 19(2) a requirement for both judges and advocates-general to be
“persons whose independence is beyond doubt”.
Again, that requirement deserves to be protected. I have no reason to believe that the other member states would vote to dilute it, but the importance of the article justifies the referendum lock.
In contrast, article 252 of the TFEU requires there to be eight advocates-general to advise the court. There is not the same idea that there should be one from each member state. The article states that unanimity is needed in order to increase the number of advocates-general beyond eight, and a change to that article would be required for a switch to qualified majority voting. However, I say to the hon. Gentleman that I believe the people whom we represent would find it slightly odd if we invited them to participate in a national referendum on whether to raise the number of advocates-general or on whether to change the method by which that decision is taken. That is the reason for the distinction that we draw in the Bill.
My hon. Friend the Member for Daventry asked about moves towards a common EU asylum system. The British Government strongly believe in the importance of practical co-operation on asylum policy within the EU. Equally, we do not judge that a common EU asylum policy is right for Britain. We believe that on many issues, EU member states have much to gain by working together, but we have made it clear that the emphasis of the EU’s agenda on asylum should not always be on legislation, but on helping member states to improve the quality of their individual asylum systems. As I am sure my hon. Friend knows, the UK has not opted into the reception conditions directive, the qualifications directive or the asylum procedures directive.
My hon. Friend the Member for Stone (Mr Cash) asked about the European investigation order. My right hon. Friend the Home Secretary has set out very plainly on more than one occasion her reasons for recommending that the Government opt in to that measure.
Charlie Elphicke
May I just say how much I welcome the strong policy on asylum? Asylum has been a substantial problem in my constituency of Dover, with masses of would-be asylum seekers and economic migrants at Calais wanting to break into the country. Will the Minister tell the Committee more about how we will ensure our strength and independence on border security?
Mr Lidington
I do not want to be distracted from the subject matter of the debate—clause 9 and the amendments—so the best thing is for me to tell my hon. Friend that I will either write to him or ask my hon. Friend the Minister for Immigration to do so in response to the point that he raises.
May I summarise the Government’s case in response to my hon. Friend the Member for Stone? There have been many criticisms of the current criminal mutual legal assistance system; it is said that it is fragmented, confusing and subject to delays. In some cases, it takes many months to obtain vital evidence, and when the UK has been the requesting state, that has had a detrimental effect on UK investigations and trials. The EIO seeks to address those problems by simplifying the MLA system among EU member states and introducing strict deadlines for the execution of requests.
It is true that had we not opted into the EIO, we would still have been able to operate MLA with other EU countries, but we would have been in a tiny minority of EU countries not using the EIO. Owing to that, and because deadlines would not apply to UK MLA requests, it is likely that those requests would be given a lower priority than those of other states, and that our prosecutors would have experienced longer delays. Given that 75% of the UK’s MLA traffic is with other EU countries, the practical impact on UK cases would have been significant.
If my hon. Friend wishes to pursue the matter further, I suggest that he first looks at the letter which the Home Secretary wrote to the hon. Member for Nottingham East (Chris Leslie) on 3 August 2010, and which she has deposited in the Library. The letter details a number of specific cases in which the current arrangements were proven to be inadequate. In one case, evidence that was not returned prior to the conclusion of the trial may have led to the suspect being exonerated. Her judgment and the Government’s judgment is that had we not opted in, it is likely that there would be more such cases.
Nick de Bois
My right hon. Friend is well aware of my long-term interest in matters pertaining to the European arrest warrant and the EIO. By that explanation, he has demonstrated the importance of, and the need for, the EAW and the EIO. I hope he will reassure us that the Bill gives the House the chance to debate and pass judgment such things, and to facilitate decisions on opting in or out.
Mr Lidington
My answer to that is on two fronts. The EAW is, of course, a pre-Lisbon, pillar three arrangement. It was not subject to post-Lisbon scrutiny, let alone to the detailed scrutiny and discussions with Committees and other representatives of Parliament that the Government are proposing. On the European investigation order, I can give comfort to my hon. Friend. It is the Government’s view that the decision to opt in to the order is one of the matters that would not only have attracted significant parliamentary interest, but which would also have raised questions of political and legal importance that would fully justify a full debate in Government time. With that debate would obviously come the opportunity of a parliamentary vote.
Mr David
I have some sympathy in policy terms with the Government on the issue of the European investigation order, but would it not have been possible to have had informal consultation with, let us say, the outgoing Chair of the European Scrutiny Committee, rather than having no consultation with Parliament at all?
Mr Lidington
I cannot recall without advice whether the Committee had just been appointed but had not met, or whether it had not yet been constituted, but the lesson that I draw from that episode—and the Government were far from happy with the fact that we had to take a decision at the end of the three-month period without a formal scrutiny process—is that we have, in the forthcoming discussions, to find a way to address the real difficulty that arises during a Dissolution of Parliament and the period after that before the scrutiny Committees are fully reconstituted. What the new Government found on coming into office was that the EU’s legislative timetable on justice and home affairs had not stopped and there was an accumulation of measures, each with a non-extendable three-month timetable, at the end of which we had to decide whether to make the initial opt-in. A large chunk of that time had already been devoured by the period of Dissolution, and there were no scrutiny Committees in place to do the job that we would want and expect Parliament to do.
Mr Clappison
Can I take it from what my right hon. Friend has just said about the European investigation order that although it may be an issue that he would consider as of particular interest and therefore deserving a debate under the scrutiny process, it would not have been caught by clause 9 as it stands? He is therefore conceding that this is an extra stage of scrutiny that has been brought about by the diligent and commendable efforts of my hon. Friend the Member for Stone, who has done a service to the House in ensuring additional scrutiny.
Mr Lidington
My hon. Friend is right. I signed off a letter to my hon. Friend the Member for Stone (Mr Cash) earlier today responding to these points, which he put to me in writing, although I expect that he has not yet received it. We draw a distinction between the justice and home affairs matters on which it is already within the competence of the EU to act, but where the UK has an opt-in, and matters that are without the existing competence of the European Union. We have tried to maintain that distinction in each aspect of the Bill, and that is a point that has informed the Government’s collective view on this legislation.
Mr Clappison
My right hon. Friend said “where the UK has an opt-in,” but if I may correct him, I think that he meant where we have the right to opt in. There is a substantial body of such matters and, of course, in each case they would be subject to the jurisdiction of the ECJ, should we decide to opt in.
Mr Lidington
My hon. Friend is right to make that correction. He is also right when he refers to the importance of the jurisdiction of the ECJ as a relevant new feature of any justice and home affairs measure that is brought forward subsequent to the Lisbon treaty. That is the thing that makes such a profound difference between third-pillar arrangements and the current treaty arrangements. That is why when Ministers—usually the Justice Secretary or Home Secretary—come to the European Affairs Committee of the Cabinet with a proposed decision on a justice and home affairs measure, they are required, as a standard part of Government policy, to produce an analysis of the likely impact of ECJ jurisdiction on our law if the United Kingdom participated in the measure, and also to assess the risks that this would lead to competence creep. My hon. Friend is right that that is an important consideration that we need to take into account when judging the balance of national interests that determines whether we choose to opt in to, or stay out of, a particular decision.
My hon. Friend the Member for Dover (Charlie Elphicke), along with a number of other hon. Members, asked why we needed to opt in at all, because if we have not gone through the whole scrutiny process, we should just leave it and opt out. The treaty gives us a three-month period within which we have to decide whether we want to make an initial opt-in. We can, if we choose, opt out at that stage, let the negotiations take place on the final version of the measure, and then opt in to the final text, as agreed by the others taking part. The problem with what he suggested is that it is not a reliable method of ensuring that our national interests are properly represented, for a number of reasons.
First, if we wait until the final stage, we have to ask the Commission if we may participate. The Council is then able to specify conditions under which United Kingdom can do so. If we judge that the balance of advantage points towards our opting in, there is a further advantage in getting in first. Secondly, if we participate on the first occasion on which we can opt in, we will then be at the table with a vote, helping to shape the final status of the text. We will not be in anything like as influential a position if we make a decision first to stay out. Thirdly, if we are not taking part, we have no vote on the final text. There are sometimes occasions—perhaps on a counter-terrorism measure—where we might decide that, on balance, it will be in our national interest to opt in, but where we dislike one particular element of the draft text. Perhaps we also know that two or three other key member states have similar reservations. In those circumstances, it is possible that the Government’s decision would be to opt in by the end of the three-month period, with the aim of putting together an alliance with those other member states so as to secure through negotiation a final text that meets our interests and means that we are completely content with the outcome.
Mr Clappison
My right hon. Friend is being most courteous in giving way. On the question of where the national interest lies, I understand and accept the reasons why the Government, as a coalition, are having to go through the complicated process that he has described. However, in the Conservative manifesto it was conceived as being in the national interest that we should not opt in to any such matters, because we were clear that there should be no further extension of the EU’s power over the UK and we promised to work to return key powers over legal rights, criminal justice, and social and employment legislation to the UK. However, we cannot have envisaged seeking to return those powers while at the same time handing over completely new powers to the European Union, by choosing to opt in. That was the national interest as we saw it, and it remains the national interest.
Mr Lidington
My hon. Friend puts his point trenchantly. I am not going to make any secret of the fact that the handling of European policy, and in particular on justice and home affairs, has been one of the most delicate issues for the coalition. There have had to be compromises on both sides to get the package of measures that we are including in the Bill and to shape the general policy that we are pursuing in respect of the European Union.
Mr Lidington
If my hon. Friend will forgive me, I would like to answer one hon. Friend before I give way to another one.
If my hon. Friend the Member for Hertsmere looks back to the debates on the Lisbon treaty, he will remember that he and I walked through the same Lobby, day after day, in opposition to that treaty. My recollection is that we had at least one day when we talked entirely about justice and home affairs matters. He knows the view that I took as a Front Bencher in a Conservative Opposition. I would much rather be either a member of or supporting a Conservative-Liberal Democrat coalition than spend another Parliament sitting fruitlessly in opposition, seeing measures being taken through the House to which I was vehemently opposed but which I was powerless to stop.
Mr Cash
My right hon. Friend is getting on to a very sensitive point, and I quite understand the sensitivities involved. When I wrote to my right hon. Friend the Prime Minister on 10 May last year about the coalition agreement, I specifically stated that, if there were to be a coalition—I had made it clear that I would have preferred a minority Government—it was essential that the Liberal Democrats should at least be required to abstain on matters relating to the European Union, for all the reasons that my hon. Friend the Member for Hertsmere (Mr Clappison) has just given. That is the problem, and we are now finding ourselves in an impossible dilemma. In fact, I would say that the situation is untenable.
Mr Lidington
I disagree with my hon. Friend’s statement either that we face an impossible dilemma or that the situation is untenable. We have a situation in which two political parties with differences of perspective and tradition on a number of issues are finding a way in which to work together in the interests of the nation as a whole. I think that the coalition is providing stable government. It is new in recent British political experience, but I find that it is hugely welcomed by many people of all political persuasions and no strong political persuasion.
Mr David
When the Minister says “people of all political persuasions”, he certainly should not include those on the Opposition Benches. I found his recent comment very interesting indeed. We understand how keen and enthusiastic he was to become a Minister, and this is the first time that he has revealed why he really, really wanted to be one. Also, this is the first time that he—or any other Minister—has acknowledged that the Bill is basically a compromise. It is the result of negotiations between the Liberal Democrats and the Conservatives. It is important that that point is now firmly on record. This is the first time in this whole debate that it has been said. In the interests of transparency and openness, will he elaborate, so that we can find out the exact nature of the negotiating process that led to this rag-bag of a Bill?
Mr Lidington
It is a bit rich for the hon. Gentleman to intervene in that fashion. He and I know that, in regard to policy on Europe or on any other matter, Governments of a single party in recent history—Conservative and Labour—have had to compromise a great deal, given the different points of view in the broad churches that those parties represent.
Mr Lidington
The hon. Lady says that the Labour Government never sought to compromise. That might explain their result at the last general election.
The answer to the hon. Member for Caerphilly is that there is a collective discussion, and it is a matter of public record that every decision about European policy is routed through the European Affairs Committee of the Cabinet. The membership of that Cabinet Committee is published: it comprises two thirds Conservative Ministers and one third Liberal Democrat Ministers. That is the balance of all the Cabinet Committees. There are discussions and exchanges of points of view, and there is an outcome to which everyone collectively is willing to sign up and support. That seems to be a sensible, constructive way in which to do the business of government.
Jacob Rees-Mogg
I thank the Minister for giving way once more. Would he be kind enough to clarify this point about the coalition? Can we take it that the Conservatives do not wish to opt in wherever an opt-in is available, so that whenever we do so, it is because we have been bullied into it by the Lib Dems?
Mr Lidington
No, I do not think that my hon. Friend should jump to that conclusion. In yesterday’s debate, I cited some counter-terrorist measures such as the European initiatives on passenger name records or on the tracking of terrorist finance, and it is very much in the interests of the United Kingdom for us to take part in them. The US Government, who have a strong interest in these areas of policy, very much want a transatlantic agreement on such counter-measures and look to us to try to persuade other European Union member states to support a vigorous counter-terrorist policy and effective measures that will satisfy Washington as well as London.
Henry Smith (Crawley) (Con)
Would my right hon. Friend not consider including that in the Bill?
Mr Lidington
We are due to debate the measures later.
The Government will have three options. They can decide to opt in to all the measures en bloc, or they can decide to opt out of them en bloc. The judgment that Ministers will have to make—I emphasise that no decision has yet been made, and that we are nowhere near making one or making a recommendation—is that these are measures in which the United Kingdom freely decided that it wanted to participate, because it served our national interest to do so, during the “third pillar” process that existed before the Lisbon treaty.
The Government of the time—Labour or Conservative—decided that each measure was right and that it was in the British national interest to participate; but, of course, that decision was made on the basis that those were intergovernmental matters which did not fall within the jurisdiction of the European Court of Justice. That is a material difference. If we opt in to all these measures in 2014, we must accept that we are opting in to matters all of which will, from that point, be subject to ECJ jurisdiction.
Mr Lidington
Yes, the default position is that we stay opted in. We have to take a decision one way or the other, and the Government are not going to hide in the corner and hope that nobody notices a decision to opt in. We are going to make a public announcement at the due time and have the debate in Parliament.
The third option for the Government would be to opt out of the measures en bloc and then seek to opt back in where we continue to believe that the balance of advantage to our national interest lies in participation. A complicated analysis is involved and we are talking about 90 such measures coming up for determination in or before 2014. As this is, again, a matter within existing competence, it is best dealt with through the enhanced scrutiny arrangements that I am proposing and it should certainly require a vote in the House. The Government have explicitly committed themselves to that and it will, of course, happen before the end of this Parliament in 2015.
The two amendments standing in the name of my hon. Friend the Member for Hertsmere and others tabled by my hon. Friend the Member for Daventry propose to subject all opt-in decisions to a requirement for an approval motion in both Houses, not simply those on which there is a significant level of parliamentary interest. Because of the practicalities of such a move on all opt-in decisions, that requirement would risk preventing the Government from being able to secure Parliament’s approval in time to opt in to any new JHA proposal within the three-month time limit set down in article 3 of protocol 21 in order to enable us to participate in negotiations at EU level. That would have a knock-on effect on our ability to help shape the proposal effectively in negotiation, and sometimes that is of great importance. Our votes made it possible to clinch an agreement on the EU-US terrorist finance tracking measure that suited our national interest and ensured that the Americans were content too. That deal became available during a parliamentary recess, when it would not have been possible to go through the formal procedures that the amendments seek to apply to each and every opt-in. That is one reason why in the discussions about enhancing scrutiny we have to find a way to handle the real difficulties that can sometimes arise, both during recesses and in periods of and following parliamentary Dissolution.
May I say in passing to my hon. Friend the Member for Daventry that, although the detail will be the subject of discussions with the relevant Committees and business managers, the possibility of a parliamentary vote would apply to any opt-in decision under the proposals that I made in my written statement. Included in that would be measures following the adoption of a measure by other member states and decisions not to opt out of Schengen measures where there is strong parliamentary interest in the measure or where the measure is of the importance that I have indicated in my written statement. The process proposed in the amendments does not lend itself to timely decision making when a rapid decision needs to be taken. I have outlined the practical reasons why this approach would not be proportionate and I hope that my hon. Friends will therefore be prepared not to press their amendments to a Division.
Amendment 47 would require parliamentary approval before we could opt in to a measure brought forward under article 83(2) of TFEU, which allows for the establishment of minimum rules regarding the definition of criminal offences and sanctions if such approximation of member state criminal laws and regulations is judged to be essential to ensure effective implementation of policy areas in which the EU has already harmonised standards. For example, if the EU set rules about environmental protection and a criminal sanction proved essential to make those rules effective, the EU could consequently set a minimum standard for a criminal offence in that area.
I listened carefully to what my hon. Friend the Member for Stone said, but I do not believe that article 83(2) is a ratchet clause in the way that articles 81(3), 82(2)(d) or 81(1) are so considered. Article 83(2) makes provision for Europe to be able to act under its existing competence without the need to be able to expand EU action in the same way, for example, as article 83(1) provides for the ability to expand the list of areas of serious cross-border crime in which the EU can act. I do not therefore think that it should be subject to the enhanced level of parliamentary control set out in the Bill to which the ratchet clauses are to be subject, given the relative differences in effect.
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.
Chris Heaton-Harris
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 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).’.—(Mr Jenkin.)
Question put, That the amendment be made.
European Union Bill
David Lidington Excerpts(13 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Europe (Mr David Lidington)
I beg to move amendment 57, page 4, line 36, at end insert—
‘(2A) A Minister of the Crown may not give a notification, under Article 4 of Protocol (No. 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to TEU and TFEU, which relates to participation by the United Kingdom in a European Public Prosecutor’s Office or an extension of the powers of that Office unless—
(a) the notification has been approved by Act of Parliament, and
(b) the referendum condition is met.’.
The Second Deputy Chairman of Ways and Means (Dawn Primarolo)
With this it will be convenient to discuss the following:
Amendment 54, page 4, line 36, at end insert—
‘(2A) A Minister of the Crown may not confirm the approval by the United Kingdom of a decision under the provision of Article 25 of TFEU that permits the adoption of provisions to strengthen or add to the rights listed in Article 20(2) of that Treaty (Rights of citizens of the European Union) unless—
(a) the decision is approved by Act of Parliament, and
(b) the referendum condition is met.’.
Government amendment 58.
Amendment 81, page 4, line 42, at end insert—
‘(aa) a decision under Article 43 of TFEU which would result in the removal of the existing powers of the United Kingdom in relation to nautical limits;’.
Amendment 36, page 5, line 5, at end insert—
‘(ba) a decision under the provision of Article 81(3) of TFEU (family law) that permits the application of the ordinary legislative procedure in place of a special legislative procedure;’.
Amendment 37, page 5, line 5, at end insert—
‘(bb) a decision under the provision of Article 82(2)(d) of TFEU (minimum rules on criminal procedure) that permits the identification of further specific aspects of criminal procedure to which directives adopted under the ordinary legislative procedure may relate;’.
Amendment 38, page 5, line 5, at end insert—
‘(bc) a decision under the provision of Article 83(1) of TFEU that permits the identification of further areas of crime to which directives adopted under the ordinary legislative procedure may relate;’.
Amendment 100, page 5, line 27, after ‘(enhanced co-operation)’, insert ‘except in the field of EU patents’.
Amendment 13, page 5, line 33, at end insert—
‘(ja) a decision which results in the participation of the United Kingdom in any enhanced co-operation procedure.’.
Amendment 8, page 5, line 35, at end insert—
‘(l) a decision to extend the use of the European Financial Stability Mechanism to member states other than the Republic of Ireland.’.
Amendment 79, page 5, line 35, at end insert—
‘(4A) In subsection (1) “decision” includes a further implementation of the decision under Article 122 of TFEU to extend the use of the European Financial Stability Mechanism to any member state other than the Republic of Ireland.’.
Amendment 40, page 14, line 9 [Schedule 1], at end insert— ‘Article 81(3) (family law).’.
Amendment 55, in clause 7, page 5, leave out lines 44 to 46.
Mr Lidington
We turn now to decisions on which a referendum would always be required. Decisions taken in accordance with the treaty provisions listed in clause 6 would always require approval by Act of Parliament and a referendum. One group of decisions covered by clause 6 are the one-way, irreversible decisions that would transfer competence from the United Kingdom to the European Union, including a decision that the UK would participate in a European public prosecutor’s office, which can be set up to combat crimes affecting the EU’s financial interests. Should the UK ever take part in the European public prosecutor following such a referendum, the decision that this country should take part in any expansion of the powers of that prosecutor is also listed in clause 6 and would therefore also be subject to primary legislation and a referendum.
Emma Reynolds (Wolverhampton North East) (Lab)
With regard to Government amendment 57, will the Minister make it clear to the Committee why the Government have singled out the European public prosecutor’s office in their opt-in to justice and home affairs and why they are not including other measures in that area on which they have a decision to opt in? The amendment is slightly untidy, so will he clarify that it will amend clause 6(2), as the European public prosecutor’s office is mentioned in clause 6(4)(c)?
Mr Lidington
The wider issue of justice and home affairs opt-ins is the subject of a number of amendments and new clauses that have been selected for debate tomorrow. If the hon. Lady will forgive me, I think that that will be the appropriate time to deal with it. We have decided to single out the European public prosecutor because that was a clear and explicit commitment in the coalition agreement and the coalition programme. The agreement stated:
“Britain will not participate in the establishment of any European Public Prosecutor.”
In accordance with that policy, we are putting a referendum lock on a decision by any future British Government to join the European public prosecutor and a further lock on the UK taking part in any expansion of that prosecutor’s powers.
I am grateful to my hon. Friends the Members for Daventry (Chris Heaton-Harris), for Wycombe (Steve Baker), for Cleethorpes (Martin Vickers), for Bury North (Mr Nuttall) and for Crawley (Henry Smith) for noticing a potential gap in the drafting of the Bill. As drafted, clause 6(4)(c) and (d) might not automatically trigger a referendum in the event that the UK chose to participate in the European public prosecutor after it had already been established. That is because the measure under the United Kingdom’s protocol on the area of freedom, security and justice, which would be used to allow us to take part in the European public prosecutor’s office or in an expansion of the office’s powers in those circumstances, does not have to cite the legal base of article 86 of the treaty on the functioning of the European Union.
Government amendments 57 and 58 respond to the concerns identified and expressed by my hon. Friends in their amendment in order to close that potential loophole. We did not intend to leave any doubt about the matter and, being keen to make that correction, I therefore urge the Committee to approve those Government amendments. These would ensure that a referendum would be required in all cases before the United Kingdom could join the European public prosecutor’s office or an extension of its powers, whether the decision was taken before or after the prosecutor had been set up, or before or after the powers had been extended.
Mr John Redwood (Wokingham) (Con)
I am very grateful for that concession, which improves the Bill. Now that the Minister is in this spirit of concession, does he not understand that most people think that criminal justice is central to their sovereignty in Parliament, and that the same provision should apply to all opt-ins under the criminal justice provisions? Why will he not concede that?
Mr Lidington
My right hon. Friend makes his point firmly, as I expect him to, but as I said earlier we will have the opportunity to debate justice and home affairs opt-ins in more detail during debates on the clauses that are set down for tomorrow. I look forward to hearing the concerns that he and other Members express on that occasion.
A number of amendments in the name of my hon. Friend the Member for Daventry seek to add a limited number of further JHA articles to either clause 6 or schedule 1, and I say to him and my right hon. Friend the Member for Wokingham (Mr Redwood) that I am well aware of and understand the Committee’s concerns about justice and home affairs matters. I share their view that they are matters of political, often of legal and sometimes of constitutional, significance, so I look forward with interest to the arguments that my hon. Friend might put forward later today.
On those amendments, which will be the subject of debate later today, I signal now that I am confident that I can make a compelling case why those particular articles should not be listed in clause 6 but be left, where they are appropriately dealt with, in clause 9. I shall explain briefly today and, I expect, at greater length tomorrow how that fits into wider JHA issues, as I set out in my written ministerial statement last week.
Mr David Nuttall (Bury North) (Con)
I thank the Minister for the courteous and generous way he is piloting the Bill through the House and through its long period in Committee. He will be well aware that I warmly welcome the general principle of the Bill and, indeed, supported it on Second Reading. He will also be aware, however, that I have to be honest and say that it is not the Bill I would have preferred to discuss today. I make no secret of the fact that I think we should be discussing a Bill to give the people of the United Kingdom a referendum on our continued membership of the European Union, but we are where we are.
I supported the Bill on Second Reading on the basis that I would use every opportunity to try to strengthen and improve it as it progressed through its remaining stages, and I am heartened by the announcements that the Minister has already made this afternoon. He has demonstrated that he feels the Bill is capable of improvement by virtue of his bringing forward the Government’s own amendments to it.
My amendment 54 and consequential amendment 55, as with so many amendments tabled for discussion in Committee, seek to strengthen the Bill by improving the scrutiny that would have to take place should any future transfer of competence occur.
Under clause 7(2)(a), a Minister may not confirm the approval by the United Kingdom of
“a decision under the provision of Article 25 of TFEU that permits the adoption of provisions to strengthen or add to the rights listed in Article 20(2) of that Treaty”
unless
“the decision is approved by Act of Parliament.”
Amendment 54 would require such a decision to be approved not only by an Act of Parliament, but by the people of the United Kingdom in a referendum. It proposes a new subsection (2A) to clause 6, rather than including the decision in the list of decisions in clause 6(4), because the procedure for the ratification of decisions under article 25 of the treaty on the functioning of the European Union is essentially the same as that for decisions under article 42 of the treaty on the European Union, which relates to a common European Union defence policy.
Under the European Union treaties, all citizens of member states are also citizens of the European Union. As the Committee will be aware, the list in article 20(2) of the treaty on the functioning of the European Union is separate from and additional to the list of rights in the European Union’s charter of fundamental rights, which was given the status of treaty law by the Lisbon treaty. I will list briefly the European Union citizenship rights set out in article 20(2). The first is the freedom of movement and residence within the European Union. The second is
“the right to vote and to stand as candidates in elections to the European Parliament”
and in local government elections in the member state of residence
“under the same conditions as nationals of that State”.
The third is the right to
“the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State”
when the EU citizen’s member state is not represented in a non-EU country. The fourth is
“the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.”
A decision to strengthen or add to the rights set out in article 20(2) could be of great importance, and could be wide-ranging. Article 25 of the same treaty appears to place no limit on the sort of rights that may be added. For example, there appears to be nothing to prevent the adoption of provisions that give European Union citizens the right to vote in national elections in member states other than the state of which they are a citizen. Such a new basic right would constitute such a major transfer of power that such moves should be approved by all the people of the United Kingdom in a referendum. By definition, new or extended rights for European Union citizens transfer power from the United Kingdom—the power over whether it accords such rights to the citizens of other European Union member states. The UK would be required to respect those rights for all EU citizens as a matter of treaty obligation, and they would ultimately be enforced by the European Court of Justice, whose rulings are binding and are backed by its power to levy unlimited fines on member states. The new or augmented rights would be enshrined in the EU treaties and could be reversed only by a new, full-blown amending treaty. That would be, for all practical purposes, an irreversible transfer of power of constitutional magnitude, as it would deal with our citizens’ rights.
Emma Reynolds
I certainly agree with the hon. Gentleman, who makes the point well. There are elements of agreement regarding last week’s written ministerial statement with which we can work. The Opposition favour any greater parliamentary scrutiny of the opt-in decisions that the Government make in this area. So, yes, there is quite a lot of agreement between us.
The Conservative party has come on a long, tortuous and at times destructive journey regarding the European Union. A Conservative Prime Minister took us into the then European Community and subsequent Conservative Prime Ministers signed up to the Single European Act and the Maastricht treaty—the biggest transfers of power from Westminster to Brussels in our history. There were no referendums on those issues. The Foreign Secretary has been part of that long and tortuous journey. He was not so keen on referendums in the early 1990s, when he and the hon. Member for Stone were on different sides of the argument during the long and heated debate on the Maastricht treaty that went through the night. The Foreign Secretary opposed a referendum on the treaty and the hon. Member for Stone consistently argued for one.
Mr Lidington
Does the hon. Lady acknowledge that there is an important distinction to be made here? With the UK’s accession under Edward Heath and with the treaties she has mentioned that were agreed to by Conservative Governments, those policies were made clear in the Conservatives’ manifesto when they sought the people’s confidence at a general election. The difference with the Lisbon treaty is that, for the first time, referendums had been promised but were not given by the party that won office at the general election.
Ben Gummer
I am sorry, but if the hon. Lady does not mind, I am going to wrap up now.
What the Opposition do not understand—and what I think many on the Government Benches do—is the entirely radical nature of this Bill. It will fundamentally change the relationship between the people of this country—our constituents—and the European Union, and in so doing will change the functioning of the European Union. It is without doubt one of the more exciting Bills to be put before the House by the coalition Government, and I support it wholeheartedly.
Mr Lidington
Clause 6 lists those decisions that would always require approval by an Act of Parliament and a referendum. Most of the amendments that we have been considering today seek to add new provisions to clause 6. I want to try to do justice to each amendment and to the various topics that hon. Members on both sides of the Committee have raised in this debate.
Let me turn first to the issue of citizenship, which is the subject of amendment 54, as well as the consequential amendment 55, both tabled by my hon. Friend the Member for Bury North (Mr Nuttall). The amendments would mean that if a decision under article 25 of the TFEU were to add to or strengthen the list of rights for citizens of member states in the European Union contained in article 20(2) of that treaty, there would have to be a referendum before the United Kingdom could agree to it. I understand my hon. Friend’s concerns, and he is right to say that the question of citizenship is important and sensitive. However, where I took issue with him was when he suggested that there was no limit to the ability of the European Union to confer new rights upon European citizens. There are a number of such limits specified in the treaties. Article 20(1) of the treaty on the functioning of the European Union states:
“Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”
Article 20 also states that “rights”—that is, rights that people possess in their capacity as European Union citizens—shall be
“exercised in accordance with the conditions and limits defined by the Treaties”.
Article 25 is not a new article, but it does concern a sensitive issue, and that is why the Bill proposes to strengthen parliamentary scrutiny of this important ratchet clause and to require that an Act of Parliament be passed before a Minister could notify approval by this country of a Council decision extending the rights attaching to EU citizenship.
That is also the reason—I hope that this will give my hon. Friend some assurance—why the Bill puts a referendum lock on any proposal that the United Kingdom give up its veto over article 25. We have also put a referendum lock on any proposal that the UK should give up other vetoes in the treaty chapter on citizenship of the Union, such as its veto over the arrangements for allowing EU citizens to vote in local elections or the arrangements for allowing people to stand and vote in European parliamentary elections. However, we do not believe that we need a referendum before agreeing to legislation to strengthen or to add to the rights of citizens of member states under article 25, because such legislation can be made only within existing competence. If there were any proposal to change the treaty to extend those areas of competence on which the rights of EU citizens could be based, such a treaty change proposal would be caught automatically by clause 4 and its requirement for a referendum before any extension of or addition to European Union competence.
Mr Lidington
If the hon. Gentleman will forgive me, given the time allowed, I must first try to do justice to the points raised in the debate.
What we are pressing for will mean member states taking more responsibility for management decisions, and working together regionally to agree appropriate measures. It will also mean giving member states the tools to apply conservation measures, and holding them to account for implementing these, regardless of which nations fish in their waters. A draft proposal for reform of the CFP is due to be published in May or June this year, but so far there is no indication, in any of the many discussions that have taken place on the subject, that the Commission will propose changes to the powers of member states in relation to nautical limits. I can assure my hon. Friends and the hon. Member for Great Grimsby that the Government would vigorously oppose any such move on the part of the Commission.
However, in respect of amendment 81, I should say to my hon. Friend the Member for Witham that, for better or worse, the European Union has had competence over fisheries matters for more than 30 years, so there is no transfer of competence from the UK to the EU involved here. Changes to the CFP are agreed by qualified majority voting and co-decision with the European Parliament. Amendment 81 could therefore result in a referendum being held on a decision that this country could not subsequently block.
Gavin Williamson (South Staffordshire) (Con)
Does my right hon. Friend feel that if amendment 81 were accepted and there were a vote, and if nothing could then be done as a result of such a referendum, it would undermine the confidence of the British people in a fantastic Bill?
Mr Lidington
My hon. Friend is absolutely right. It is therefore important that we focus the referendum lock on those decisions that are of real significance to the people we represent. I understand why my hon. Friend the Member for Witham has tabled amendment 81, which has provided us with a good opportunity to debate a subject about which she cares passionately, but it would not achieve the objective that she and other Members who want reform of the CFP are seeking.
Amendments 36, 37 and 38 would add any decision by the United Kingdom to vote in favour of, or otherwise support, measures brought forward under the justice and home affairs ratchet clauses contained in articles 81(3), 82(2)(d) and 83(1) of the TFEU to the list of measures subject to the safeguard requirements contained in clause 6 of the Bill. Amendment 40 would have a similar effect to amendment 36, but seeks to achieve it by adding article 81(3) to the list of treaty provisions in schedule 1. What those amendments seek is a referendum, rather than such provisions being made under the Bill.
My hon. Friend the Member for Hertsmere (Mr Clappison), speaking in support of the amendments tabled by my hon. Friend the Member for Daventry (Chris Heaton-Harris), broadened the debate into matters of justice and home affairs more generally. I hope that we will get the opportunity to debate those matters tomorrow, but I will respond briefly to the important points that he made. I know that his concerns are shared by many other Members.
On justice and home affairs opt-ins, we are talking about something that, like it or not, is a matter of existing European Union competence. However, where we have a choice, we cannot be compelled to take part in a particular measure. Furthermore—this affects how we deal with our systems for requiring scrutiny and accountability—where there is a three-month time limit, during which the United Kingdom has to decide whether to take part in the final negotiations on the shape of the legislative measure, that will impose a practical limit on what we can do while still keeping open the option on whether to join in.
I would say to my hon. Friend the Member for Hertsmere that the policy of the coalition is to consider on a case-by-case basis whether we should opt in to a measure or not, and to judge each decision on its merits. There will be occasions when it will be in the national interest of the United Kingdom for us to take part. I would use the example of passenger name records to illustrate that. The United Kingdom Government are pressing the Commission and other member states to introduce measures on that, because we, along with the Government of the United States and a number of European partners, believe that such a measure would help all European countries and the international community generally to strengthen our counter-terrorist policies and provide a means of giving greater assurance of safety to our citizens when they travel by air. So we need to look at these measures on a case-by-case basis.
On scrutiny, as I said in my written ministerial statement of last Thursday, we are proposing not to reduce or limit existing scrutiny powers but to add to them. The minimum that the Government would offer is a written ministerial statement on each decision and, for more important measures, an oral statement. When there was an especially strong parliamentary interest, the Government would commit to setting aside their time for a debate in both Houses on a motion supporting the Government’s approach. Such a motion would, of course, be amendable.
I believe that it would generally be right for such debates to be called when it was proposed to opt in to a measure that would have a substantial impact on this country’s civil or criminal law, on our national security or on our immigration policy. I can say to my hon. Friend the Member for Hertsmere that it is certainly our view that, under the policy that I announced last week, the European investigation order would indeed have been referred for a debate of that kind. As he knows, the Commons Scrutiny Committee had not been fully constituted when that decision had to be taken within the three-month time limit. I know that the Government were uneasy about the fact that the non-existence of the Committee meant that we could not go through the appropriate scrutiny procedures.
In sorting out the details of these matters and putting flesh on the policy that I outlined last week, there will be a need for the Government to talk to Parliament, and to the scrutiny Committees in particular, about exactly how we translate this policy into practical action. There will also be a need to deal with matters such as recess periods and periods of Dissolution. On the question of override, there will, I am afraid, occasionally be cases in which an early opt-in decision is required. There has been one such case this year, in which it was in our interests to opt in to the EU-US agreement on the terrorist finance tracking programme, and we had to do that before the completion of scrutiny. We do not ever take those decisions lightly, and we always seek to keep Parliament informed when the risk of an override exists. To that end, we need to establish how these new arrangements will be managed, especially during periods of recess.
I shall now respond in more detail to the points raised by my hon. Friend the Member for Daventry. In practical terms, although the UK could block any attempt to move article 81(3) to QMV using either treaty revision procedure, we could not block the result being achieved through the use of the specific ratchet clause in article 81(3). We would simply be ejected from the measure under article 3(2) of the area of freedom, security and justice protocol, and the other member states would continue without the UK. So, in the unlikely event of the UK seeking to use either revision procedure to move article 81(3) to QMV, we could veto that and block the treaty change, but all that would happen, assuming that other member states wanted to go ahead, is that the EU would use the ratchet clause to change the legislative procedure without UK participation. On that basis, it does not seem sensible to put a referendum lock on the use of either of the treaty revision procedures to move the article 81(3) legal base to QMV, because it would not have the desired effect of stopping a move to QMV for individual measures of family law.
Article 82(2)(d) enables the Council to add to the list of issues that can be made subject to EU legislation on criminal law procedures, and article 83(1) allows for additions to the list of criminal offences where the EU can set minimum standards. The exercise of those two articles is already foreseen; they are known entities. They add to what can be done within existing areas of EU competence, rather than creating new competences, and we expect them to be used in relatively obscure areas. For example, on the criminal side, there is a possibility that a proposal will be introduced to use the ratchet to add the crime of female genital mutilation to the list of serious crimes, where the EU can set minimum standards under article 83(1) of the treaty on the functioning of the European Union. We will have the choice whether to opt in or not, in line with Government policy. If we wished to opt in, each House would have to agree that it could do so within the three-month period and, before the UK could finally sign up to such a proposal, there would have to be an Act of Parliament. Should we decide not to opt into the negotiations but later decide to opt into the final decision, there would then need to be an Act of Parliament before we could do so. We believe that that is the correct level of control for such decisions, and a considerable increase on the present amount of control provided for under the European Union (Amendment) Act 2008, under which the Lisbon treaty was approved.
I turn now to enhanced co-operation. I might want to write to my hon. Friend the Member for Hertsmere at greater length on this, given the limited time available to me now. I can tell him, however, that we have provided that, if the UK is participating in an area of enhanced co-operation that touches on one or more of the treaty provisions listed in schedule 1 and there is a proposal to use the ratchet to allow a move from unanimity to QMV, an Act of Parliament would need to be passed and the proposed move supported in a referendum before the UK could agree to that proposal.
My hon. Friend’s amendment 13 would mean that, if the UK wanted to join in legislation agreed under an enhanced co-operation arrangement after that legislation had already been agreed by others, a referendum would be required if the smaller group had already decided to move to QMV on an article listed in schedule 1. The reason for the different approach that we are proposing in those circumstances is that the UK would be deciding whether to participate in enhanced co-operation on a specific piece of legislation, rather than on a whole area of policy, and we would be taking that decision in the full knowledge of what had already been agreed. We would be deciding freely whether to take part—we could not be forced to take part—and we would take that decision in the knowledge that any future negotiation to amend that legislation would also have to be done on the basis of QMV.
That is different from taking a decision to move to QMV in the middle of a negotiation on a piece of legislation being agreed under enhanced co-operation to which we were already committed to taking part. That could lead to us being outvoted on the final piece of legislation, having gone into the process under different circumstances altogether. Any such decision, I say to my hon. Friend the Member for Hertsmere, would be subject to parliamentary scrutiny in the customary way. I am certainly prepared, in the context of the broader reform of scrutiny that I announced last week, to look at the particular point that he raised.
The official Opposition’s amendment 100 is simply unnecessary. The policy on the patent is already subject to qualified majority voting, apart from two areas that are subject to unanimity. We propose that those should require an Act of Parliament, not a referendum.
To my hon. Friend the Member for Stone (Mr Cash), I say that we are not happy with the position on the European financial stability mechanism; it is one that we inherited from the previous Government. Our right hon. Friend the Prime Minister fought hard—and successfully—at the European Council to make sure that article 122 was extinguished for the future as a source of bail-outs for other countries. I ask my hon. Friend to recognise, in turn, that the stability of the eurozone, and the eurozone’s success in solving its serious problems, are in our interests, too.
Mr Lidington
It would be helpful if, by way of introduction, I gave a brief explanation of our approach to how the referendum provisions in the Bill would work—the referendum mechanics, in other words. I stress that provision for the conduct of UK referendums on all issues, including those in the Bill, is set out in the Political Parties, Elections and Referendums Act 2000. That statute covers the overall regulatory framework applying to referendums and sets conditions in relation to the referendum period, the date of the poll, the wording of questions, the role of the Electoral Commission in commenting on the intelligibility of those questions to ensure that questions are “clear, simple and neutral”, and the conditions to be set in relation to the registration of campaign organisations and for financial and other assistance to be given to designated individuals or organisations. For this purpose, the Act allows the Electoral Commission to designate one individual or organisation for each possible outcome of a particular referendum, which could include political parties, and to award them a public grant of up to £600,000 and other benefits.
In addition, the provisions of the PPERA impose financial controls on the expenditure and income of campaigning individuals or organisations that are not political parties. They place controls on referendum publications by Government and others, and make provision for enabling secondary legislation to be made for the conduct of referendum polls. Those provisions in the PPERA would apply to any referendum conducted under the terms of the Bill and, as the Committee knows, the referendum proposed in the Bill on the parliamentary voting system. Similarly, any amendment to, or replacement of, the PPERA in the future would correspondingly apply to any referendums held under the Bill.
The PPERA, however, does not cover matters that are inherently specific to a particular referendum. Those include the precise wording of the question, the date of the referendum, its franchise, or the precise length of what is termed the referendum period, which is that period during which campaign expenditure is regulated. The Act does not cover how challenges to the referendum result are to be handled, the payment of counting officers, or the conduct of the referendum—for example, decisions on locations, opening hours of polling stations, permitted size of posters and any electoral offences related to the holding of a referendum.
When considering how many of these specific issues to address in the Bill and how many to leave for a specific Bill at the time of a particular referendum, the Government took account of our commitment in the coalition agreement that there would be no further transfer of competence or power from the United Kingdom to the EU over the course of this Parliament. Logically, therefore, there will be no referendums about the transfer of competence or power until 2015 at the earliest, as there would be no such transfers on which the British people should be asked to opine. But as I made clear in earlier debates on the Bill, any proposed treaty change even during this Parliament would none the less be subject to the rigours of this legislation—a statement would have to be laid before Parliament setting out the Government’s analysis on competence and whether any transfers of power would result, and that treaty change would still require Parliament’s clear approval through primary legislation.
Mr David
May I take the Minister back to what he was saying about the Electoral Commission and possible financial support to those putting forward a case for or against an issue under consideration? A referendum is due to take place in Wales on 3 March and, because there is no recognised body advocating a no vote, no finances are being given in that direction, but that means that no finances have been given to those who support a yes vote. Could a similar thing happen to any referendums that the Minister is outlining?
Mr Lidington
We would certainly want to avoid that and would look at the experience that the hon. Gentleman describes. It is important to recall that the principle of grants being made available for lead campaign organisations was recommended by the independent Committee on Standards in Public Life and approved by Parliament in legislation passed under the previous Labour Government in 2000. I hope that he agrees that it would not be in the public interest for one side in a referendum campaign to be able to outspend the other hugely. A grant ensures that both lead campaign organisations can campaign effectively and that helps the public make an informed choice.
I emphasise that the Bill is not intended to serve as a vehicle for providing for all the detailed referendum rules required to supplement the provisions already contained in the PPERA. That is because we cannot anticipate exactly what referendums might be required in the future, when they would be held or, indeed, what the relevant electoral and referendum law would look like at that time. I do not want to write on tablets of stone arrangements that could prove to be at odds with a subsequent change in general electoral legislation. Therefore, we cannot provide everything on the convening of those specific referendums in the Bill. Rather, it sets out the circumstances in which those referendums would have to be held.
Charlie Elphicke (Dover) (Con)
On the issue of who can vote in referendums, I notice that specific mention is made of the right of the people of Gibraltar to have a say in a referendum. It seems to me that they would like to be part of the United Kingdom for many purposes when it comes to European matters. Would it not be right to allow them more of a chance to have a say?
Mr Lidington
My hon. Friend makes a good point. Of course, we must look at the question of whether the franchise for a particular referendum should include the people of Gibraltar in the context of whether it would affect Gibraltar. As he will appreciate, although Gibraltar is in most respects treated as part of the EU, some parts of the treaties do not apply to it. It is therefore right that the Bill specifies that the electorate in a referendum should include the people of Gibraltar when the subject matter of that referendum also applies to them. To provide further reassurance, I call tell him that I have consulted the Chief Minister of Gibraltar formally and discussed the matter with him face to face, and he has assured me that he is content with the arrangements for Gibraltar as set out in the Bill.
Christopher Pincher (Tamworth) (Con)
This is not the time to talk about changes to the Representation of the People Act 2000, although it is probably the place, but the Minister will be aware of the great concern here and in the country about extending the right to vote to prisoners. My understanding from the ruling of the European Court of Human Rights is that that applies only to general and European Parliament elections, so is it not possible to include in the Bill a specific disfranchisement of prisoners, who otherwise would have an opportunity to vote on constitutional matters?
Mr Lidington
As my hon. Friend knows, the Government are considering how to comply with the Court’s decision. Article 3 of the first protocol of the European convention on human rights sets out the right to vote in elections. Importantly, that right extends to elections to legislatures, within the meaning of article 3, so we are not under an obligation to enfranchise prisoners for local elections or referendums, and the policy is that we will not do so. The Government accept the need, as did our predecessor, to change the law to give some prisoners the vote in the light of the Court’s judgment. The right to vote will be restricted to UK Westminster parliamentary and European Parliament elections only.
Charlie Elphicke
The European Court of Human Rights ruled on prisoner voting in, I believe, Hirst v. the United Kingdom. Despite what my right hon. Friend says, and given that case, how can we be confident that an element of judicial activism will not enable prisoners to vote on a referendum question?
Mr Lidington
My hon. Friend is perfectly right to be alert to any sign of judicial activism, but I assure him that one thing that will be very much on the mind of our right hon. and learned Friend the Secretary of State for Justice is to devise a policy that takes us forward in compliance with the judgment while keeping to the minimum the risks that my hon. Friend fears.
We recognise the need to ensure that Parliament and the British people have a degree of clarity now about any referendums that will take place under this Bill in future. We want to provide as much clarity as we can from the outset in order to reduce any scope for wriggle-room, and we therefore propose specific measures in this Bill to ensure that any referendums held under it are to some extent standardised. Clauses 11 to 13 include three mechanical provisions for every referendum to be held in future.
Clause 11 concerns the franchise for any future referendum held under the terms of the Bill. The most appropriate franchise for future referendums on questions of transfers of competence or powers from this country to the EU is one based on that for elections to this House, rather than on that for either local government elections or European parliamentary elections, for example. If we were to adopt an alternative franchise, we would allow for voting by citizens of other European Union countries resident in the UK, and that would sit rather oddly with the principle of having the British people decide on whether they wish to pursue further transfers of power from their country to Brussels.
Mr Robert Buckland (South Swindon) (Con)
Will the franchise for voting in a referendum under this legislation be extended to peers, whether or not they are Members of the House of Lords?
Mr Lidington
I do not know whether this delights my hon. Friend, but peers would be able to vote in a referendum; it might well delight Members of the other place. The purpose of the referendum would be to obtain views about the transfer of competence or power from the UK to the European Union, and the Government do not consider there to be a strong, principled reason for excluding peers from expressing their views as part of such an exercise. We therefore propose the same franchise as that used for the European Economic Community referendum in 1975 and that which will be used for the referendum on the voting system for UK parliamentary elections, namely the parliamentary franchise plus peers.
Charlie Elphicke
One concern that I have about using the referendum mechanism is that it does not contain thresholds. Recently we had before this House a Bill, which has become jammed in another place, where thresholds were discussed. Does the Minister not think that, in the case under discussion, thresholds might surely be worth considering?
The Temporary Chair (Mr Brady)
Order. That is outside the scope of the clause, which is about people who are entitled to vote.
Mr Lidington
I shall bear your guidance very firmly in mind, Mr Brady, and simply say that the Government do not propose to specify in this legislation any further thresholds on the turnout.
In response to my hon. Friend, I mentioned the Government’s reasons why the franchise should be extended, where relevant, to Gibraltar, but it is worth me explaining, because there has been some concern in the House, why people from the Crown dependencies and British overseas territories will not be included in the franchise. Very little EU law applies to the Crown dependencies, mainly because of the provisions of our Act of accession to the then EEC in 1972, and also because of the current provisions of the European Union treaties. By virtue of article 355(5)(c) of the treaty on the functioning of the European Union, the European Union treaties apply to the Crown dependencies, but only to the extent described in protocol 3, which provides that EU rules on customs matters and quantitative restrictions apply to the Crown dependencies
“under the same conditions as they apply to the United Kingdom”,
that the Crown dependencies are inside the EU customs territory and that certain aspects of the common agricultural policy are applicable to allow the free movement of agricultural products.
Mr Nuttall
The explanatory notes on clause 11—perhaps we ought to refer to them as the first edition of the explanatory notes—state:
“A person who is entitled to vote in a parliamentary election in the UK must be a British citizen, Commonwealth citizen, a citizen of the Republic of Ireland or a British citizen who qualifies as an overseas elector.”
Does my right hon. Friend agree that it is rather strange that all those classes of people will be entitled to vote under the Bill, but not necessarily, from what he has said, people from British overseas territories?
Mr Lidington
Our position is that people who are resident in the United Kingdom and who are enfranchised for general elections will count legally as UK nationals for European purposes. That is the electorate, with the addition of peers, that we envisage for any referendum that is required under the terms of the Bill. The distinction that I tried to make earlier—I apologise to my hon. Friend if I did not explain myself with sufficient clarity—was between Gibraltarians living in Gibraltar, who would be entitled to vote if the subject matter of the referendum affected Gibraltar, and citizens of Crown dependencies or British overseas territories living in those places. An analogy might be made between those people and citizens of Gibraltar, but as I have tried to explain, the relationship of the Crown dependencies and other British overseas territories with the EU is very different from that enjoyed by Gibraltar.
Charlie Elphicke
I hate to press the cause of the people of Gibraltar, but I understand that for the purposes of elections to the European Parliament, the people of Gibraltar are able to vote for Members of the European Parliament for the south-west region. Given that they can vote in elections for that Parliament for all purposes in the European arena, surely they should be able to vote on referendum questions for all purposes.
Mr Lidington
No, I think that we have drawn a fair distinction by saying that it is right to confine the electorate for a referendum that does not affect Gibraltar to people in the UK who are entitled to vote in UK elections, and to say that Gibraltar should be allowed to vote when the issue in question affects it. I repeat to my hon. Friend that the Chief Minister of Gibraltar has assured me that he is perfectly content with what we are proposing.
The franchise proposed in clause 11 is also referred to elsewhere in the Bill, namely in clauses 2 and 3. I believe that what we propose is proportionate and justified to ensure that citizens in both the UK and Gibraltar who would be affected by a treaty change, or by a decision that would transfer power or competence from this country to the EU, could express their view in a referendum.
Emma Reynolds
I have just two questions of clarification for the Minister and to ask him whether he can confirm that the Government will not repeat the recent mistakes on the alternative vote referendum. First, will they commit to consulting the devolved Administrations regarding the timing of any referendum triggered by the Bill? Secondly, will he make a commitment today that any such referendum would not take place on the same day as the devolved Assemblies elections?
Mr Lidington
We will not give a commitment about specific dates for referendums that are not going to be held before 2015 at the earliest. There are advantages and disadvantages to holding referendums on the same days as other elections, and it is certainly considerably less expensive to the taxpayer if a referendum can be combined with a ballot for other purposes.
Nick Boles (Grantham and Stamford) (Con)
In the United States, where much more use is made of local referendums in states such as California, do not such votes almost always take place on the same day as gubernatorial, mayoral or House of Representatives elections? What America understands, which we somehow fail to understand, is that people are perfectly capable of distinguishing between different questions and quite like being asked to go to the polls only once.
Mr Lidington
My hon. Friend makes a good point, and I suspect that a number of Members of all parties can recall occasions when both a general election and a local government election of some kind have been held on the same day in the same place. We have found that our electors have been perfectly capable of deciding to split the ticket if that is what they wish to do.
Mr Dodds
As far as Northern Ireland is concerned—I cannot speak for Scotland or Wales—the objection has always been to the idea of a general election for Westminster and for the Northern Ireland Assembly on the same date. There has not really been the same objection to holding a referendum or a local government election on the same date as the Northern Ireland Assembly election. I take the point made by the hon. Member for Grantham and Stamford (Nick Boles) about people not having to go out to vote over and over again, and we have certainly had plenty of experience of that in Northern Ireland over the years.
Mr Lidington
I am grateful to the right hon. Gentleman for his comments.
The other point that a future Government would have to bear in mind in determining a referendum date would be whether there was any particular urgency to a treaty or passerelle proposal that required a referendum. In normal circumstances the various national ratification procedures take quite a bit of time, and if there were a proposal under the ordinary revision proposal, it is probable that more than one member state would have to have a referendum. There would therefore be quite a long period between agreement at European Council level and ratification by all 27 member states, or more by then, I hope. However, it is conceivable that there may be a particular need for urgency, and the Government of the day would have to bear that in mind.
The other point that the hon. Member for Wolverhampton North East (Emma Reynolds) made was about the relationship with the devolved Administrations. The Government take that seriously, and we have regular formal meetings with them about Europe through the joint ministerial committee on Europe. I am also in contact with Ministers in each of the devolved Administrations. I can assure her and the Committee that they never hesitate to bring their concerns to me. We would certainly want to continue that process of consultation, bearing their interests in mind.
Mr Lidington
We try to do both. We in the Government can pride ourselves on enjoying a rather better relationship with the devolved Administrations than the previous Government were usually able to manage.
Mr Lidington
The right hon. Gentleman makes a perfectly fair point. He will know that the Prime Minister personally takes the respect agenda very seriously and that he is determined that his Government pursue it. I hope that the Committee agrees to clause 11.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Separate questions
Question proposed, That the clause stand part of the Bill.
Mr Lidington
Clause 12 provides that separate questions should be set out on a referendum ballot paper in specified circumstances. You will not need reminding, Mr Hoyle, that it is this Government’s clear commitment not to agree to any treaty change or decision to transfer power or competence during this Parliament, but if and when the time comes to hold a referendum under the Bill, nothing in the legislation prevents more than one referendum from being held on separate but coincident treaties or decisions on the same day, or the combination of a referendum with another poll.
As the Committee is aware, a combined poll is the Government’s intention when it comes to the referendum on the parliamentary voting system. As I explained in relation to a previous clause, the rules that govern whether such a combination could take place for referendums under the Bill are provided for in the overarching legislation—the Political Parties, Elections and Referendums Act 2000—and we recognise that the Electoral Commission would have an opinion on what combinations would be feasible.
There are considerable savings to be made in terms of money, disruption and people’s time if polls are combined, but in addition, as my hon. Friend the Member for Grantham and Stamford (Nick Boles) pointed out, the electorate often wish to combine different voting opportunities on a single day. People do not really relish the task of having to traipse to the polling station more frequently than they regard as necessary.
The Electoral Commission has previously said that it would consider on a case-by-case basis proposals to combine different ballots on the same day. The Government believe that that is a sensible approach. We therefore do not seek to make any specific provision in the Bill, particularly as we do not know at this stage when any future referendums will be proposed.
Clause 12 would ensure—should more than one referendum be proposed for the same day—that it is not possible to set a single combined question on all of the issues to be decided upon that day. People have a right to the utmost clarity and choice, and the clause sets a standard that we intend will provide that.
To give an example, if a future Government ever took the step of proposing that the United Kingdom should join the single currency, and separately took the decision to give up our border controls, and if those two referendums were to be held on the same day for reasons of efficiency, the question on joining the euro would be separate from the question on giving up our border controls. There would be two separate questions on the ballot paper and two separate results, because obviously, some people might wish to support one proposition but to oppose the other.
Mr Nuttall
I can quite easily see how it would be a significant saving to the public purse to have more than one referendum held on the same day, and I have no doubt that our fellow citizens are more than capable of determining two complex questions at the same time and on the same day. Does my hon. Friend agree that, for ease of counting if for nothing else, it would be preferable if the two questions put before the electorate were on separate ballot papers, possibly even of differently coloured paper? That would make it far easier for the returning officers to sort the ballot papers and determine the outcome of the ballot.
Mr Lidington
My hon. Friend makes a sensible suggestion, and I am sure that the Government of the day and the Electoral Commission would wish to take it into account in framing the rules for any particular referendum or combination of referendums.
Mr Dodds
I agree with the point made by the hon. Member for Bury North (Mr Nuttall), and the Minister has said that it will be taken into account, but the clause states that
“a separate question must be included on the ballot paper”—
singular. If this clause is passed in its current form, we will not have the flexibility or freedom to have a separate arrangement. Having separate ballots is a good idea, given the experience in Scotland at the last Assembly and parliamentary elections, when the fact that there were different elections on the same ballot paper was the problem.
Mr Lidington
There is a principle in the interpretation of the law that the singular can include the plural. If the wording proved to be an obstacle to what the Government of the day and the Electoral Commission considered to be the best way to operate a referendum, it would certainly be open for a change to be made in the Bill authorising the referendum. I am prepared to have a look at that question between now and Report. I am reasonably confident that we would not run into the problems that the right hon. Gentleman described, but I am prepared to seek detailed advice and come back to it on Report.
Christopher Pincher
I suspect that the number of occasions on which multiple referendum questions are on the ballot paper will be quite rare, but on those occasions will the Government agree to spend more money to publicise the referendum and allow campaigning organisations more money to spend campaigning for or against the questions? The more questions on the ballot paper, the more complex the issues are and the more money needs to be spent to explain them.
Mr Lidington
That is one of the very good reasons for not trying to cover all the ground in this Bill. That kind of detail will be a matter for the application of the 2000 Act or its successor statute, and for the Government of the day to authorise a referendum or combination of referendums. That might depend, for example, on whether one lead campaign organisation could be said fairly to represent the views of the yes or no camp on more than one referendum, or whether separate lead organisations were needed. It is reasonable for my hon. Friend to ask those questions, but answers to them can be provided only when we come to consider a specific case in due course.
Mr Nuttall
Does that not lead us to the interesting question of whether there is a practical maximum number of referendums that could be held on the same day? I can understand how we could deal with two, but it gets rather complicated if there are more than two. We could have three different organisations with three separate streams of funding from the Electoral Commission, and soon the whole thing would begin to look rather unwieldy.
Mr Lidington
Although one can never guarantee against the utterly implausible happening, the scenario that my hon. Friend describes would require a commitment of political energy on the part of every EU member state, because the decisions subject to a referendum require unanimity among member state Governments. Furthermore, he assumes that the UK Government of the time would be prepared to accept and recommend to the people three different treaty changes, or the implementation of three different passerelle clauses, or some combination of those on a single occasion. That is unlikely in the extreme.
A more plausible scenario—although I do not think, from talking to my colleagues on the Council of Ministers, that people have any appetite for this at the moment—if European countries wanted an ambitious treaty change covering a number of different competences, would be to seek treaty amendment through the ordinary revision procedure. That is the instrument available to the EU for an ambitious, wide-ranging treaty change along the pattern of Lisbon, Nice, Amsterdam and Maastricht. In those circumstances, the total proposal for a treaty amendment—regardless of which city it was named after—would be the subject of a single referendum question. It is most unlikely, therefore, that there would be a multiplicity of narrowly focused referendum questions, given the availability of that instrument.
Nick Boles
On a related point, it is dangerous ever to underestimate the deviousness of those who wish to build the grand European project—of course, they are entirely honourable in this, because they believe that their aims are honourable. However, would it not be conceivable that a Government—a future Labour Government, probably—who wanted, for example to set up a set of common European defence forces to replace our national defence forces, might agree a treaty in which they also agreed to repeal the common fisheries policy, which Conservative Members would strongly support? Would we then have a single vote on a single treaty that combined some elements that this country would strongly support and other elements that it would find very difficult? Or would the Government still be able to separate the different elements of the treaty and ask separate questions?
Mr Lidington
No, in the circumstances that my hon. Friend describes, in which an omnibus treaty amendment is delivered under the ordinary revision procedure, there would be a single question. It would be ridiculous for the Government to present that to the people as a number of different questions, because the Government, on behalf of the United Kingdom, would have to ratify the entire package en bloc, or refuse to ratify it en bloc. The negotiation would have resulted in a compromise among member states on something to which they all felt able to give their assent, and they would all have to be accountable to their respective electorates for that overall decision.
Charlie Elphicke
On this matter of referendums being held on the same day, will the Minister explain the revenue implications of separate referendums on separate days?
Mr Lidington
As I said in response to an earlier intervention, if different decisions about treaty amendments were being taken at roughly the same time—I imagine that they would be either passerelle clause decisions or simplified revision procedure decisions—it might well be sensible to combine the referendums on those measures on the same day. The public would get pretty impatient with Parliament if we suggested that should they pop down to the polling station every other Thursday to put their cross in the box for yet another referendum proposal. They would quite rightly be asking why we were requiring their local authorities, as the electoral registration authorities—and ultimately them as taxpayers—to go to such expense and bother on so many different occasions. I would suggest to my hon. Friend that common sense would prevail, regardless of which party was in office.
Mr Lidington
If my hon. Friend will allow me, I want to make a bit of progress. In particular, I want to deliver a bit of good news to the right hon. Member for Belfast North (Mr Dodds), to whom I am always pleased to give good news. Advice has reached me that confirms the point that I made to him somewhat tentatively when I responded to his intervention. The law does indeed make it clear that when it comes to the interpretation of statutes, the singular can be interpreted to mean the plural. Under the language that we have used in the clause, it will be possible to have either one ballot paper with multiple questions or several different ballot papers, depending on the circumstances at the time. That would obviously be a detailed decision that the Government of the day would have to make, taking, I would very much hope, the advice of the Electoral Commission into account.
It should be noted that neither clause 12 nor any other clause in the Bill sets any other explicit parameters on the framing of the question. However, it is a condition separately in clauses 2, 3 and 6 that, for a proposal in a referendum to be passed, the majority of those voting should be in favour of the ratification of the treaty or approval of the decision, whichever it may be. That condition would logically require that the question be framed as a simple choice between two options, rather than a menu of options to which the responses would be much more difficult to interpret. In other words, it is implicit in the Bill that the question would be a binary one. It is the Government’s clear view that this should be the case for all and any referendums held under the provisions of the Bill.
Mr Nuttall
On the binary question, and whether we should have no/yes or yes/no, does the Minister agree that it is rather unusual that whereas individuals standing in an election are listed on the ballot paper in alphabetical order based on their surnames, when it comes to a referendum, for some reason the yes comes before the no? That is rather odd. I think that the no should be first and that the yes should come second.
Mr Lidington
I am sure that my hon. Friend means well, but I would urge him to have more confidence in our fellow citizens. In particular, I would point him to the referendum on the proposed assembly for the north-east of England. A yes vote was strongly supported by the then Labour Government, as well as enjoying the support of quite a number of public organisations in the north-east of England, but the proposition was resoundingly rejected by the public when it came to the ballot in that region. It is a good old Tory principle to trust the people, and I think that we should be content with that.
Mr Nuttall
I want to make it absolutely clear that I entirely agree with the principle of trusting the people. I have no doubt whatever that the people of this country are more than capable of working out which is which. I just thought it was rather odd that the yes should appear above the no, and I wondered whether there was any reason why that should be so.
Mr Lidington
As far as I am aware, there is no particular reason for it. However, the Electoral Commission will have a duty to comment on the question that the Government of the day have chosen, and I am sure that, if the Commission felt that placing yes above no gave an unfair advantage in some way, it would so opine and the Government would take account of that. It is quite difficult to envisage a ballot paper that did not have either yes or no at the top of the paper. At the end of the day, it comes down to a choice by the people: they have two options available to them, and I think that they will know which side they are on when it comes to the vote.
Mr David
I am tempted to ask the Minister whether Welsh will appear above English on the ballot papers in Wales, but I will not. Is there anything in the legislation that would prevent the Government from going back to the electorate if a no vote had been secured when the Government clearly wanted a yes vote? Could the question be put to the electorate for a second time, and, if so, what period would have to elapse before that could happen?
Mr Lidington
The Bill makes it very clear that the referendum condition has to be satisfied, in the circumstances in which the law requires a referendum to be held, before the Government are able to ratify the proposed treaty. I simply do not believe that any British Government who had been defeated at a referendum would then come forward and say to their electorate, “No, you’ve got it wrong. Let’s dissolve the people and have a new one!” That really does not make political sense.
Mr Lidington
What happened in Ireland was that the Irish Government went back to their EU partners and received various assurances, which were incorporated into a protocol to the treaties. We can debate whether the Irish Government were right or wrong to be satisfied by those assurances, but I actually think that it is a matter for the Irish people, not for me, to decide. In such slightly far-fetched, hypothetical circumstances, were a British Government to do as the hon. Gentleman suggests, they would have to bring the protocol back here and go through the entire process again, including the assessment of the ministerial declaration and the Act of Parliament. There would then have to be a new referendum. I just think that any Government who tried to do that would be punished so severely by the people every time they got the opportunity to go to the ballot box that it would be the last thing on any Minister’s mind.
Mr Lidington
Before I give way to my hon. Friend, may I just say that I am very conscious that we have another important clause to consider, if we can, before the 10 o’clock deadline?
Mr Nuttall
I, too, am conscious of that. The Minister says that the Irish situation was a rare occurrence, but he will be aware that it also occurred in Denmark and France. It is therefore not all that unusual in the European Union for second referendums to be held on the same or a very similar question.
Mr Lidington
I go back to what I said earlier: I trust the people. If a Government wanted to ask people to vote again, they would have to go through the entire procedure again—assuming that a new protocol or slightly revised treaty wording were involved—as well as having to persuade a pretty sceptical electorate that they should change their mind. I think that my hon. Friend is at risk of exaggerating the likelihood of those circumstances arising. While I do not think that the loss of a referendum vote on a European treaty amendment should determine whether a Government should fall, it would undoubtedly be a very severe political blow to that Government.
Once this Bill becomes law, I think the pressure will be the reverse of what my hon. Friend fears, as the pressure will be on any British incumbent Government to be very confident that they can carry support among the electorate for a treaty reform transferring new powers or competences to the European Union before they agree to it at the European Council. The arrangements we are putting in place thus provide safeguards against what my hon. Friend fears.
In any event, the Political Parties, Elections and Referendums Act 2000 requires the Electoral Commission to consider the wording of any referendum question when a Bill to provide for the holding of a poll is introduced in Parliament. In the case of a draft instrument, the Secretary of State is required to consult the Electoral Commission on the wording of the referendum question before any such draft is laid before Parliament for approval, and he or she is then required to lay before each House a report stating any views as to the intelligibility of that question which the Commission has expressed in response to the consultation. We have not sought to disapply that requirement, as we think the Electoral Commission plays an important role in ensuring both the neutrality of the question and that it is correctly and easily understood by voters.
Under PPERA, the Electoral Commission is required to consider the wording of the referendum questions for UK, national and regional referendums and for some local government referendums. Having done so, it is required to publish the statement of its views as soon as practicable and in such a manner as it may determine. Helpfully, the commission has developed guidelines to aid the drafting of intelligible referendum questions. In these, it says that a referendum question should present the options clearly, simply and neutrally so that it is easy to understand, to the point and unambiguous; and should avoid—I hope this helps my hon. Friend the Member for Bury North—encouraging voters to consider one response more favourably than another, and avoid misleading voters. In reaching its conclusions, the Electoral Commission adopts a systematic and thorough approach, which now has the advantage of some considerable experience behind it. It is also important that it publishes a report of methodology to enhance transparency and its credibility.
Clause 12 is thus a proportionate and sustainable provision to ensure that the voice of the British people can be heard on each question asked of the people. That, in turn, will help us with our commitment to rebuild the trust between Government, Parliament and the people, and to reconnect our people with decisions taken in their name on our continuing relationship with the European Union. For those reasons, the clause should stand part of the Bill.
Charlie Elphicke
I want to make a few brief points and hope that the Minister will come back to me on them. I note that after the Scottish elections of 2007, the Gould report concluded that it was preferable for referendum questions not be done as a multiplicity, but to be put separately after separate campaigns. I am particularly concerned because there has been a tendency on the part of some Governments to play somewhat fast and loose on whether there should be a referendum at all or, indeed, in respect of asking loaded questions. We need to be careful to ensure that if there is a combination of questions, the key issues are not edged together and confused, leading to a muddle in the public’s minds. That is a serious and substantial concern, so I would be grateful if the Minister would respond to it.
Also, I was not being frivolous when I asked the Minister how much it would cost if referendums were held on separate days—leaving aside the annoyance that voters might feel in being called time and again to the polls.
Mr Lidington
On my hon. Friend’s second point, I do not have precise figures. Clearly, our experience of national UK referendums is limited—the last being in 1975, as the hon. Member for Caerphilly (Mr David) has frequently reminded us today. The referendum on the voting system planned for later this year will no doubt give us some guidance. I am happy to write to my hon. Friend if I acquire any firmer indication of what the costs might be. Clearly, there would be financial advantages in combining more than one poll, whether it be a combination of referendums or of a referendum and a local or devolved election on the same day.
Let me say in fairness to the Gould report, to which my hon. Friend alluded, that although it criticised what happened in 2007, it also recognised that there were benefits in the combination of polls, such as reduced costs and a higher turnout. A well-managed referendum, involving close co-operation between us and the Electoral Commission and others, should allow us to maximise those benefits while avoiding the problems that undoubtedly occurred in 2007. Let me emphasise again, however, that the decision would need to be taken in the future, and would depend on the circumstances at the time.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Clause 13
Role of Electoral Commission
Question proposed, That the clause stand part of the Bill.
Mr Lidington
Clause 13 covers the role of the independent Electoral Commission in the administering of any future referendums held under the Bill. The clause would supplement the existing provisions of the Political Parties, Elections and Referendums Act 2000. The Neill committee originally suggested the establishment of such a commission to supervise the restrictions on spending by, and donations to, both political parties and third parties.
As I have explained, we have not sought to disapply or replace any of the general provisions of PPERA. There is, of course, nothing to prevent Parliament doing so in any legislation that might be needed for a referendum in future, in order to reflect the context and the circumstances in which that referendum would be held. Significantly, however, the Act contains no provision to confer on the Electoral Commission power to promote public awareness and understanding of the subject matter of referendums.
We feel that, as part of the Government’s firm commitment to helping to rebuild trust and reconnect the British people to decisions made in their name on the European Union, it is important that the administration of any future referendum to be held under this Bill facilitate the understanding and clarity required to enable the British people to make informed decisions on whether or not to approve a treaty change or decision that would transfer power or competence from Britain to Brussels. Clause 13 provides that if a referendum is triggered under the EU Bill, the Electoral Commission has an obligation to take whatever steps it thinks appropriate to promote public awareness of the referendum and how to vote in it.
Mr David
I hear what the Minister says about an appropriate public debate and a high degree of awareness, but the clause states that the Electoral Commission
“may take whatever steps they think appropriate”.
If the Minister thinks that public awareness is so important, why did he not ensure that the word “will” was used rather than the word “may”?
Mr Lidington
The Electoral Commission was rightly established as an independent body. I think it important for the Government not to issue instructions to it, and to be seen not to do so. Given that the commission’s value to our political process is by virtue of its being a completely independent statutory body, I consider it right for us to give it these new powers without laying down rules requiring it to use them in a particular way. It is for the commission to make its own judgments. How it chooses to promote awareness is rightly a matter for it, but we are giving it a statutory duty to promote awareness before any referendum held under the provisions of the Bill.
Mr Nuttall
Perhaps I can help the Minister. Clause 13(a) says that the commission
“must take whatever steps they think appropriate to promote public awareness”
of the existence of the referendum, but
“may take whatever steps they think appropriate to promote public awareness of the subject-matter of the referendum.”
I suggest to the Minister that that may mean giving appropriate amounts of money to the yes campaign and to the no campaign.
Mr Lidington
My hon. Friend’s helpful intervention will probably have given some reassurance to the hon. Member for Caerphilly (Mr David).
We are seeking to encourage greater participation, and providing clarity so that the people know what they would be voting for regardless of which way they choose to vote. We are following the practice adopted for the North East assembly referendum in 2004, and the approach taken in the Parliamentary Voting System and Constituencies Bill.
If I may, I refer the hon. Member for Caerphilly to the 2003 enabling Act for the north-east regional assemblies referendum. It included clause 8, supplementary to PPERA, on “encouraging voting”, and that—
European Union Bill (Programme)(No. 2)
David Lidington Excerpts(13 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Europe (Mr David Lidington)
I beg to move,
That the Order of 7 December 2010 (European Union Bill (Programme)) be varied as follows:
1. In paragraph 2, for ‘five days’ there shall be substituted ‘six days’.
2. In paragraph 4, in the Table, for the entries relating to the proceedings required (so far as not previously concluded) to be brought to a conclusion on the fifth day there shall be substituted the following:
Proceedings | Time for conclusions of proceedings |
Clauses 15 to 17, Schedule 2, new Clauses relating to Part 2, new Schedules relating to Part 2, Clauses 19 to 22, remaining new Clauses, remaining new Schedules, remaining proceedings in Committee. | The moment of interruption on the fifth day. |
Any proceedings on consideration. | Two hours before the moment of interruption on the sixth day. |
Proceedings on Third Reading. | Two hours after the commencement of proceedings on Third Reading or at the moment of interruption on the sixth day, whichever is earlier. |
As the House will be aware, the Government have proposed a small number of amendments to the European Union Bill and they will be debated, subject to your grouping of those amendments, Mr Speaker, in greater depth and at the relevant time.
Mr Peter Bone (Wellingborough) (Con)
The Minister must be in absolute despair. In his very good ConservativeHome article, he said that this House would scrutinise this important legislation—the most radical since we went into the European Economic Community—but clearly we will not be able to do that today, because a number of amendments and clauses will not be reached. Is he not disappointed that the guillotine has not been lifted tonight?
Mr Lidington
As far as I am aware, it has not been a question of a guillotine. We have the normal 10 o’clock rule in place. As my hon. Friend the Member for Wellingborough (Mr Bone) is aware, the Government were keen to ensure that the House had sufficient time to consider this important legislation. We therefore proposed five days for the Committee stage in the programme motion that was tabled on Second Reading. That had been agreed in advance through the usual channels. My recollection of that day’s debate is that there was no attempt to divide the House on the programme motion at that time.
With all respect to my hon. Friend, I am conscious that he cares passionately about the Bill and about the relationship of the United Kingdom with the European Union. He has strongly held, honourable and principled views on that matter, and I am sure that if he catches the Speaker’s eye in the course of today’s proceedings, he will speak trenchantly on the subject, as he has done on other occasions recently. But when it comes to a debate, there is also a duty on all Members of Parliament to consider the time available for the various amendments that have been grouped together, and to measure their own contributions to that debate accordingly.
Mr William Cash (Stone) (Con)
Does my right hon. Friend agree that if there were any attempt during the proceedings on the programme motion or at any point during the day that might give rise to suspicions that Members were talking matters out in order to prevent important business being arrived at, his words might sound rather hollow?
Mr Lidington
I am sure that my hon. Friend the Member for Stone (Mr Cash), who has been here for a long time, knows that a balance needs to be struck between the time that is needed to examine important political and constitutional issues fairly and in the depth that both the House and the general public would expect, and the time that is available for debate, bearing in mind the many other priorities that the House has to consider. I would say gently to my hon. Friend that I believe that he spoke at some length—more than 60 minutes—during the first day’s proceedings in Committee. I hope that so far he has not had reason to complain that his contributions are being crowded out.
Mr James Clappison (Hertsmere) (Con)
Is my right hon. Friend aware that there are no fewer than 29 amendments, some of which are Government amendments, before we reach the fourth or fifth group, which contain the provision relating to whether there should be a referendum in the case of the accession of a new member state? That provision is extremely important, and without proper scrutiny being given to that, it could hardly be said that the Bill had had proper scrutiny in the terms that my right hon. Friend described? Would he regard it as unsatisfactory if we did not scrutinise that question, which is important for many, many people?
Mr Lidington
It would be improper for me to comment on the selection or grouping of amendments, which is properly a matter for the Chair and not the Government. My hon. Friend is right to say that the question of the possible need for a referendum on accession treaties is a matter of importance. I hope we get the opportunity to debate that in the course of today’s proceedings. One of the consequences of the programme motion, which I support, is that the House will get the opportunity of a sixth day of consideration. There will therefore be opportunities for my hon. Friend and other Members in all parts of the House to table further amendments and new clauses when we reach Report.
It would have been open to the Government, having decided to table amendments and hoping—I believe not unreasonably—that those amendments might be accepted by the House, to have said to the House, “Well, we now have to make provision for a Report stage, so what we suggest is that we curtail the Committee stage from five days to four, and that we have Report and Third Reading on the fifth day.” If it would be of some assurance to my hon. Friend, I want to make it clear that we had no thought of doing that.
We decided at the start that it was important to continue with the full five days in Committee that we had promised all parties in the House, so in order to provide for a debate on Report we have allocated an additional, sixth day for debate on Report and Third Reading. If, by some chance, the House decides not to accept any of the amendments tabled by the Government or other Members and to leave the Bill unamended in Committee, that sixth day would be available for a full parliamentary day’s debate on Third Reading.
Sir Peter Bottomley (Worthing West) (Con)
There seem to be three issues on which the Minister must guide the House: first, whether the Government thought that there would be no amendments and, therefore, no need for debate on Report, which seems a rather odd thing to have assumed in the first place; secondly, whether he believes that the extra day is sufficient for debating on Report any amendments that might have been made by then and any that might not have been made; and thirdly, whether he intends to avoid debate on matters on which there is substantial interest in the House. I do not intend that to be a criticism, but I would be grateful if he would comment on those three issues.
Mr Lidington
I am grateful to my hon. Friend for his intervention and will deal with each of his three points in turn. On the question of amendments, the terms of the original programme motion provided that on the fifth day we would deal with the Committee stage and with remaining stages, so the assumption was that if there was a need for a Report stage, there would be provision for it. The Government have looked closely and carefully at each of the amendments that have been tabled, from whichever side of the House they came. As I hope to have the opportunity to explain when we debate the substance of the Bill and the various amendments selected for debate, we have been influenced in our policy and in the amendments that we have tabled by the amendments that have been tabled by Back Benchers.
On the question of whether the additional day will allow adequate time for debate, I ask my hon. Friend to look at the provision of time overall for consideration of the Bill. I think that a full day for Second Reading, five complete days in Committee and a full day for the remaining stages is a pretty fair allocation of time. I am confident that it will be possible for all the important issues that colleagues on both sides of the House wish to see debated to be debated within that time, but how long Members take to debate each group of amendments or how long they spend on particular clause stand part debates is, of course, a matter for them and for the House. The Government have no intention of trying to constrain debate artificially. I very much hope that we have time to consider all the important issues that have been raised in the amendments.
Mr Lidington
With the leave of the House, let me reply briefly to some of the main points. I do not want to take up much time.
I found it difficult to take seriously the strictures of the hon. Member for Caerphilly (Mr David) about the Bill’s alleged complexity. If there is complexity in the Bill, it flows from that in the Lisbon treaty, which he and his party, when in government, negotiated, supported and rammed through the House.
Members from both sides of the House made important points about the amount of time available. I am grateful for the acknowledgement of the Government’s offer of a sixth full day. I point out that, with no statements or urgent questions today, roughly six and a half hours are available for debating the motion and proceedings on the amendments. There is a balance to be struck between time available and Members’ self-discipline in the length of their speeches.
On Report, hon. Members on both sides of the House will obviously have the opportunity to table amendments and new clauses to raise subjects that they believe need further debate or that they think have been overlooked and ought to be debated. The hon. Member for Birmingham, Edgbaston (Ms Stuart), who has been in the House since 1997—almost as long as I have—knows well how the rules of order operate and how to draft an amendment to maximise its chances of selection and of being high up in Mr Speaker’s groupings on Report. I am sure that Back Benchers on both sides of the House will be happy to take her advice on the canny ways of achieving those objectives.
A number of hon. Members, including the hon. Lady, mentioned the question of accession treaties. It is obviously for the Chair and not for me to determine whether the content of any speech is in order. I simply point out that the first group of amendments includes proposals to remove the exemption conditions altogether from the Bill, but the exemption conditions include an exemption for accession treaties. I invite the House to draw its own conclusions, but I hope that it supports the motion.
Question put and agreed to.
European Union Bill
David Lidington Excerpts(13 years, 3 months ago)
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Mr David
I have argued consistently that that was not the case, but the new Committee, drawn from both Houses, would consider all changes that occur inside the European Union and that have a direct impact on the United Kingdom. We can discuss what is significant and what is not, but my point is that the proposed Committee would come to a considered view on what was important and what should warrant a referendum.
I emphasise this point because we are concerned about the extent to which the Government will have discretion to decide what goes to a referendum. We are concerned because we fear that the Government’s rhetoric does not match the reality of their Bill. I am sure that the Minister is absolutely sincere in his intention to give the electorate the maximum ability to vote on a range of European minutiae, but let us just suppose that the Bill is smoke and mirrors. The nature of the proposals before us could turn out to be more apparent than real.
By common agreement, the Bill is one of the most complicated pieces of legislation to come before the House of Commons for many years. As we all know, in legislation the devil is always in the detail, and this Bill contains one heck of a lot of detail. Some Members, including those on the European Scrutiny Committee, have suggested that the Government may be looking for wriggle room. In particular, there has been reference to clause 3(4), the so-called “significance” subsection, which allows the Government to avoid a referendum if they believe that certain EU sanctions or obligations are insignificant. If I were a Government Member, I should consider that very ominous, as little detail is provided.
The Minister for Europe (Mr David Lidington)
Given the concerns that the hon. Gentleman has just expressed, will he please explain why the Opposition amendments, and in particular new clause 9, would extend the significance test so that the Committee that he proposes would consider whether a decision to join the euro, or a decision to scrap British border controls, was significant enough to warrant a referendum at all?
Mr Jenkin
I am grateful to my hon. Friend.
I hear the plea of my hon. Friend the Member for Devizes (Claire Perry), but I believe that there is a constant danger of us succumbing to wishful thinking. The problem is that this is not the “thus far and no further” Bill; it is the “locking the stable door after the horse has bolted” Bill. What is more, whatever other horses there may be in the stable, there are sufficient holes in the door for those horses to squeeze through, if it is convenient for the Executive to allow it to happen. That is what we will see with the treaty coming down the track for EU fiscal union. The Bill will not increase the happiness of the British people about our present terms of EU membership. The Bill fails to address those terms, but they will have to be addressed at some stage in the future.
I refuse to sign a referendum pledge, as I was recently asked to do, saying, “Let’s have an in-or-out referendum”. That is not the way to conduct this debate; the way to conduct it is for the Government to set out their national interests and negotiate robustly for them in the European Union, rather than to continue appeasing the system to avoid a row. I even accept that we may need to do that for a period, while we are in such a difficult fiscal position, but the moment that the EU is asking for treaty changes for which it needs our consent is the moment we should be asking for concessions in return. We certainly should not carry on transferring competencies to the EU without a referendum, as is provided for in the Bill.
Mr Lidington
We have had a robust debate, and I want to start by thanking all right hon. and hon. Members on both sides of the Committee who have taken part, whether through speeches or the numerous interventions.
I want to start with a point on which there was agreement, certainly on the Government Benches. Wherever people stand within the coalition or the spectrum of opinion on Europe in the Conservative party alone, there is agreement that the European Union has developed with too little democratic control and without adequate consent being given by the British people. Indeed, the Lisbon treaty was the first time that the United Kingdom agreed to, and then ratified, a European Union treaty that was not even included in the general election manifesto of the winning party at the previous election.
My hon. Friends the Members for Daventry (Chris Heaton-Harris), for Grantham and Stamford (Nick Boles) and for Camborne and Redruth (George Eustice) said that we needed to change what the history of the British political world’s handling of European business had done, which is to undermine support for our membership of the European Union and the idea that what British Ministers do in European Union institutions on behalf of the United Kingdom carries democratic consent. We need to restore a sense of confidence among the public in how British Ministers take decisions on Europe on their behalf, and that is what the Bill seeks to do. We want to ensure that the British people are never again denied their say over the transfer of new competences and powers from this country to the institutions of the European Union.
I should say in parenthesis to my hon. Friend the Member for Cheltenham (Martin Horwood) that although the word “transfer” in the explanatory notes is a reasonable use of layman’s language, I am sure that he will have noted that in the Bill itself we use the term “confer”. We talk about exclusive, shared, co-ordinating and supplementing competences, which are precisely the terms used in the European treaties.
However, my hon. Friend was right to say that this Bill should not be our only means of addressing the democratic deficit in the way that European decisions are made. He was right to talk about the importance of strengthening our systems of parliamentary scrutiny. I am looking forward to seeing how the scrutiny Committees in the House of Commons and the House of Lords use the opportunities presented by the new yellow and orange-card system. I know that my hon. Friend the Member for Stone (Mr Cash) has been in regular contact with his counterpart committees in a number of other EU capitals. It is important that that network of contacts between the European Union scrutiny committees in each of the 27 member states continues to develop.
I am sure that my hon. Friend the Member for Cheltenham will also have seen the written ministerial statement that I made to the House last Thursday. Although it dealt primarily with issues concerning justice and home affairs measures, it also stated that the Government now wanted to explore—together with Parliament, and therefore with the two scrutiny Committees in particular—ways in which, right across the piece, we can strengthen scrutiny and accountability to the Houses of Parliament for what we as a Government do in Europe on behalf of this country.
Mr Cash
I very much acknowledge the sentiment that my right hon. Friend is expressing, but I am sure that he will understand when I say that listening is not the same as actually agreeing, and that there are circumstances where I would have expected him to be a little more acquiescent in relation to some of the arguments that we have put forward.
Mr Lidington
In those conversations about parliamentary scrutiny, which I intend should begin as soon as possible, I hope that I can find complete agreement with my hon. Friend. However, he will know that if we are talking about arrangements that will govern how both Houses of Parliament deal with European business and the process of scrutiny, we ought to be striving towards a measure that can command broad support in both Houses, and across all the political parties represented therein.
The Bill is a radical piece of legislation to improve how we handle European business. As my hon. Friend the Member for New Forest West (Mr Swayne) pointed out, in a characteristically vigorous intervention, had the legislation been in force at the time, the treaties of Lisbon, Amsterdam, Nice and Maastricht would all have required a referendum before they could have been finally ratified.
The powers in the Bill include a referendum lock on treaty changes or decisions that transfer powers from the United Kingdom to the European Union. That is the case even if the measures used to transfer those competences or powers are the extensive self-amending provisions introduced by the treaty of Lisbon. The powers include requiring that important decisions—even if they do not transfer power or competence—are still in every case approved by an Act of Parliament. I want to put this beyond any doubt: the Bill will mean that any treaty change at all, whether using the ordinary procedure for amending a treaty or the simplified revision procedure, will have to be approved by primary legislation.
This is a vitally needed improvement. Under the European Union (Amendment) Act 2008, Parliament’s control over the simplified revision procedure and other key ratchets is limited to a vote on a Government motion. That is the case even if the simplified treaty changes or ratchet clauses are proposed to abolish something as important as a national veto over foreign policy.
Ms Gisela Stuart
There is something that I genuinely do not understand after reading through the notes. When the Government list all the things that will be covered by the ratchet clauses, is that an exhaustive list? What is the logic behind the list?
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 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.
Mr Lidington
The points are not vague. I invite the hon. Gentleman to have another look at clause 4 and schedule 1, both of which define in clear terms the various ways in which competences could, within the terms set out in the treaties, be enlarged, transferred or expanded, while schedule 1 sets out in detail a list of national vetoes, the removal of which would automatically trigger a referendum. I gently suggest that the hon. Gentleman studies the Bill a little bit harder.
Mr Cash
Does the Minister not accept that it would be a monumental change if proposals relating to fiscal union, social union or employment union were to be incorporated in a treaty between the UK and other member states—excluding the UK, but none the less having a juggernaut impact upon us? In those circumstances, is that material not so important that we would expect to get a referendum—as would the British people?
Mr Lidington
My hon. Friend is jumping several bridges in assuming that what might be proposed in those hypothetical circumstances would be an amendment of the European Union treaties rather than a separate intergovernmental treaty involving the member countries of the eurozone—and perhaps some others—who wished to participate in the sort of closer economic union that my hon. Friend described and fears.
I hope to say more about this later, but the Bill is based on a very clear principle agreed within the coalition —that the referendum lock should apply where there is a transfer of competence or of power from the United Kingdom to the institutions of the European Union. That is the defining criterion. The different categories of exemption apply where powers and competences are not being transferred from this country. That is the reason for the distinction set out in the Bill. It is not an arbitrary decision, but one based on a very clear principle.
Ms Stuart
I am still trying to understand what the Minister regards as significant. The monetary union is not a debt union at the moment, but it is about to become a debt union. We have an opt-out for monetary union. If the monetary union becomes a debt union, and thus far more significant, surely that is important to us—even though we have an opt-out.
Mr Lidington
If the measures in respect of greater economic union or perhaps fiscal union or shared responsibility for debts were to take the form of a European Union amendment treaty and involved the transfer of competences or powers from this country to the EU, the referendum lock would be triggered. If the eurozone countries choose to do their own thing and have their own intergovernmental treaty, which they can do quite distinct from any move to amend either the treaty on European Union or the treaty on the functioning of the European Union, we would not have a say—not if they chose to go down that route.
Mr Dorrell
Were my right hon. Friend a Minister in one of those European Union countries that might theoretically be considering a fiscal union, and were he offered the prospect of his decisions on behalf of his country being subject to a referendum in the United Kingdom—a country that would not be part of that union—which of the two routes does he think that he might take?
Mr Lidington
By implication, my right hon. Friend has answered his own question. There is a question about national sovereignty and democratic accountability. We would look askance were another EU member to say that some protocol that dealt with the United Kingdom alone should be subject to a referendum in their country. We should be pretty cautious before we set ourselves up and argue that we will insist that we hold a referendum here on a treaty proposal that does not have an impact on the governance of this country, that does not involve the transfer of new powers away from this country, and that leaves the powers of our Parliament and people completely as they are at present.
Mr Lidington
I will make some progress, because many Members have spoken and made different points, which I want to answer.
As the Committee knows, a new system for treaty change was introduced by Lisbon: the simplified revision procedure in articles 48(6) and (7) of the treaty on European Union. That enables the European Council to amend those sections of the treaty on the functioning of the European Union that concern the single market, justice and home affairs and other internal policies. The Bill ensures that the method of treaty change, governed by the simplified revision procedure, is subject to exactly the same accountability and scrutiny as the ordinary revision procedure. The only difference is the significance test, which I will cover in detail later. In passing, I should say that article 48(7) decisions about moving from unanimity to qualified majority voting are caught by clause 6(4)(b) of the Bill and require both an Act and a referendum in accordance with schedule 1.
My hon. Friend the Member for Hertsmere (Mr Clappison) was right when he said that article 48(6) says that the simplified revision procedure cannot be used to enlarge the competences of the European Union. Although that is indeed written in the treaty, we have drafted the Bill to require British Ministers to examine even an article 48(6) proposal, to see whether, despite that treaty language, we would judge it to involve an extension of competence. If the British Government’s judgment was that it did, the referendum lock would apply in those circumstances.
Let me turn to the numerous amendments, many of which severely weaken the provisions of the Bill, either by watering them down so that they are toothless, or by extending them considerably beyond what the coalition programme for government promised. Amendments 67 and 68 would remove the referendum lock altogether, and require only an Act of Parliament to approve a transfer of power or competence from the United Kingdom to the European Union.
Martin Horwood
That is not an entirely accurate representation of amendments 67 and 68, which refer only to changes under the simplified revision procedure.
Mr Lidington
I was going to make the qualification that the amendment applies to measures within the simplified, not the ordinary, revision procedure. I think that that denies the public the chance to have their say on what are, ultimately, important decisions.
My hon. Friend the Member for Cheltenham asked a couple of detailed questions. He asked, for example, whether a technical change to allow for emergency flood relief, agreed to by means of the simplified revision procedure, would be subject to a referendum. As he will know, the so-called enabling clause, article 352, would be available in the event of a need to take urgent action within the European Union’s existing competences if that action were taken to attain the EU’s objectives and if there were no explicit provision to authorise that in the EU treaties, and emergency relief and international development are indeed competences that the European Union shares with member states. Clause 8 of the Bill provides for enhanced parliamentary controls prior to any agreement on the use of article 352.
I disagree with the hon. Gentleman on some of what he termed technical changes. I firmly believe that a referendum should be held on any change that would transfer competence or substantive power from this country to the EU permanently.
The hon. Gentleman also asked how many article 48(6) changes were currently being considered. Only one is being considered at present, the one that was promoted by the German Government and agreed at the December European Council. It affects only the eurozone, and as it does not transfer power or competence from this country to the European Union, there would be no need for a referendum.
Amendments 1 to 5 and amendment 7 would ensure that every treaty change required the consent of the British people in a referendum, even if it transferred no further competence or power from this country to Brussels. I suspect that this was not the authors’ intention, but even a treaty change that would repatriate power from the European Union to the United Kingdom would require a referendum in this country before it could be accepted. A treaty change to remove the United Kingdom’s veto over decisions to amend the number of advocates-general working in the European Court of Justice would require a referendum, as would a treaty change to allow Denmark to participate in justice and home affairs measures. The addition of 18 new MEPs before 2014—when they take their seats automatically anyway—for which the Bill provides would also require a referendum.
The issue is this: what is a suitable matter for a referendum? I believe that decisions that change who decides—decisions that move control over an area of policy from the United Kingdom to the EU—should require the consent of the British people; but not every treaty does that. Should a technical change such as the temporary alteration in the number of MEPs require a referendum? If Iceland decided to join the EU, should that require a national referendum? I think that that argument is very hard to justify, and might well discredit the principle of referendums from the point of view of voters. I also see no justification for referendums on treaty changes that do not apply to the United Kingdom. As I said earlier, in democratic terms, those are ultimately decisions for the countries to which the treaties apply, and not for us. No transfer of competence or of power from this country to the EU is associated with such changes.
Ms Stuart
The Minister is simply wrong. If Lisbon caps the total number of MEPs, if the number of MEPs is based on the population, if there is a minimum number of MEPs with “bookends”, and if a country such as Turkey makes a change, the number of MEPs in this country will be significantly lower and our voice will be lower. That constitutes a change of power, and it is no good denying it.
Mr Lidington
If we followed the hon. Lady’s logic, a referendum would be required in this country for any change whatsoever in the distribution of seats in either the European Parliament or the Council of Ministers.
By definition, a referendum in this country would also be required on any accession to the European Union, not just that of Turkey, because every time a new member state joined the European Union they would have a certain weighted share of votes in the Council of Ministers and a certain number of MEPs. I do not think that she is seriously arguing that.
Mr Clappison
The Minister is making a persuasive argument in a courteous way, but I must take him up on this point about the accession treaty. I believe that eight members joined at the same time and what took place then was in many respects a shambles, which would have been avoided by better scrutiny and if the question of a referendum had been on the table.
Mr Lidington
I am going to stick to my figure of 10. It does not make much difference to the principle of the argument, but I believe my figure is accurate. My hon. Friend rightly made a point about problems after some of those accessions, but that makes the case for member states to insist on the rigorous application of the accession criteria before accession takes place, rather than allowing countries in before they are fully ready and equipped and then arguing about it afterwards.
Keith Vaz (Leicester East) (Lab)
The Minister is absolutely right on this point and my hon. Friend the Member for Birmingham, Edgbaston (Ms Stuart) is wrong, because in the case in question the enlargement of the European Union passed through the House unanimously. The only occasion when a matter such as enlargement should go to the British people is when the House decides that it should go to them.
Mr Lidington
I am grateful to the right hon. Gentleman for that.
I wish now to discuss the significance test. New clause 9 would submit all referendum criteria, all treaty changes and all uses of article 48(6) to a significance test, but even the narrow use of the significance test, as set out in the Bill, has been the subject of a great deal of concern, so I wish to be clear about what it means for the Bill as it stands and to explain why it is needed. The significance test can be used only in very specific circumstances. Clause 4 identifies 13 instances when a treaty change transferring competence or power to the EU would attract a referendum. The significance test applies not to 13, but to two of those instances. Moreover, it can be used only when a decision under article 48(6) is being taken. It cannot be used for treaty amendments adopted under the ordinary revision procedure.
Article 48(6) decisions could seek to confer on a European institution a power to require this country to act in a particular way, or to impose sanctions on the UK for our failure to act in a particular way. Although that could be done only within existing areas of competence, and not within new ones, it would enable EU institutions or bodies to use those existing competences in a different way. A future proposal under article 48(6) to do either of these things would, as a matter of general principle, require a referendum to be held.
Let me give the Committee a hypothetical example. There might be a proposal to allow an EU agency to impose sanctions on a national regulator or to act in a way that compelled British businesses to do something that would increase significantly the burdens on British business and harm the competitiveness of this country. That sort of decision would, in my view, be classed as significant and should attract the referendum lock, but there might equally be instances in the future—my hon. Friend the Member for Cheltenham was right—where article 48(6) might be used to give a new power to a body in an area that is not significant to this country. For example, it might require a national regulator or some other British organisation to provide an EU agency with a set of statistics annually.
Let us consider, for example, the European Maritime Safety Agency. It was set up to provide member states of the Commission with technical and scientific assistance in the field of maritime safety and the prevention of pollution by ships. If, in the future, it was decided to change the treaty so that that agency could issue binding directions to national regulators and that that would be a permanent cession of authority and powers, that would be a significant power within the meaning of clause 4(1)(i) or (j). If, however, the proposal was to change the treaty to allow the agency to require national regulators to provide it with an annual digest of statistics, I do not think that that would be a significant power under the Bill. That is why we have provided for the significance test.
Amendments 3 and 5 would remove the significance condition from the Bill, so it would in practice require a national referendum on such things as the provision of statistics. I think that most people in this country would accept that such technical changes should be left to the Government, under the scrutiny of Parliament, who of course would still have to authorise the minor treaty change through primary legislation—a formal Act of Parliament subject to detailed scrutiny and capable of amendment in either House. In all those instances the proposal would need to be thoroughly analysed and we have ensured that any use of the significance test would be subject to strong scrutiny and accountability.
When he spoke about amendment 11, my hon. Friend the Member for Hertsmere took a different approach to parliamentary scrutiny. His amendment would require a Minister to seek parliamentary approval not to hold a referendum on the basis of the significance test, through both Houses agreeing to a motion without amendment. I have a great deal of sympathy for where my hon. Friend is coming from and I do not for one moment challenge his passionate commitment to the duty of Parliament to hold Ministers to account or his wish to see the powers of Parliament over European Union business and ministerial decisions on Europe strengthened and improved. If I felt that his amendment would secure that objective better than the provisions in the Bill, I would be with him on the detail. However, I want to explain why I do not believe that it does that.
First, when a Minister makes the statement required by clause 5 on whether a proposed amendment requires a referendum, they must give reasons why the proposed change does or does not meet the significance test. Those reasons will need to refer to the criteria set out in clause 4, so their reasoning will need to be clearly set out. There is a first measure of protection already in the Bill.
Secondly, the Bill ensures that every proposed treaty change, regardless of whether the significance test applies, would require the approval of Parliament through primary legislation. That would allow sufficient time for Parliament to scrutinise the use of the test to legislate for a referendum if it deemed such a provision necessary.
Thirdly, there is the risk that having a separate debate on significance in the way that amendment 11 proposes could weaken Parliament’s scrutiny of the primary legislation that the Bill requires. That point was made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) in an intervention. In view of the dynamic of the House of Commons, it would be tempting for a Government who wanted to rush through a particular treaty change to schedule an early debate on the motion not to require a referendum and then, when the ratification Bill came forward and Members of Parliament had had the opportunity to look at the detail, perhaps consider the evidence of a Select Committee, and listen to what outside experts had to say on the matter, they would find their Whips coming up and saying, “We’ve already voted on this. You personally went through our Lobby to support the proposition that a referendum was not required. How can you change your mind and try to insert the requirement for a referendum at this stage?”
The unintended consequence of amendment 11 could be to strengthen the hand of the business managers and to weaken the independence of judgment that Members would be able to exercise under the requirement for primary legislation laid out in the Bill. Amendment 11 would also weaken any prospect of a successful judicial review. Judicial review is not a panacea, but the House should see it as a significant step to give the citizen the right to challenge a Minister’s decision, where that decision is irrational or unreasonable.
There are two important distinctions between what we are proposing here and what we saw in the Wheeler case, to which a number of Members referred in the debate. First, the Minister has to give reasons, and give reasons by reference to the Bill. That opens up the possibility that a court might wish to consider a challenge to the reasonableness of the Minister’s decision. Secondly, whereas in Mr Wheeler’s case the Court was invited to judge the wording of the constitutional treaty against the wording of the treaty of Lisbon and declined to do so, in this case we are talking about a possible invitation to the Court to judge the actions and decision of a Government Minister in his Executive capacity against the statutory duties on that Minister set out in the language of the Bill. Those are important distinctions.
Mr Lidington
No. I want to do justice to the amendments tabled by the Opposition. They have been presented as increasing the role of Parliament. In fact, they do the reverse. The effect of the Opposition amendments, especially new clause 9, is to subject every referendum criterion to a significance test. If accepted, the Opposition’s amendments would leave it open as to whether a move to join the euro was significant, a move to give new competences to the European Union was significant, a move to give up our border controls and take part entirely in a European immigration system was significant, or a move to join a European public prosecutor system was significant.
The hon. Member for Caerphilly (Mr David) is trying to persuade us that he is offering new powers to Parliament, when it is clear to anybody who studies the wording of his amendments and his new clause that the intentions are the reverse. The Opposition’s amendments would drive a coach and horses through the Bill. They would deny both Parliament and the people the additional powers and controls which I believe Parliament and people in this country want to see. The Bill is designed to be tough. As academic experts have said when giving evidence to the European Scrutiny Committee, it delivers the referendum lock that we have promised. I will not yield by weakening the Bill in the way that the Opposition propose.
Question put, That the amendment be made.
EU Business Enhancing (Parliamentary Scrutiny)
David Lidington Excerpts(13 years, 3 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Europe (Mr David Lidington)
The imminent annual report on EU Justice and Home Affairs has provided a useful point of reflection on current arrangements for parliamentary scrutiny over Justice and Home Affairs decisions. The Government have come to the view that the current arrangements are not adequate and Parliament has too small a role.
I am therefore pleased to announce that the Government have agreed an important package of measures to strengthen parliamentary scrutiny of EU business, including in the important area of Justice and Home Affairs, to be elaborated and implemented in close consultation with the business managers and the relevant parliamentary committees. This Government are committed to upholding the right of Parliament to hold the Government to account on EU issues and this package will provide Parliament with further tools to enable it to do this job effectively.
The treaty of Lisbon provides for a five-year transitional period after which the infringement powers of the European Commission and the jurisdiction of the European Court of Justice (ECJ) will apply to all unamended police and criminal justice instruments adopted under the pre-Lisbon “third pillar” arrangements. The transitional period began on 1 December 2009 and will end on 30 November 2014. The UK has until 31 May 2014 to choose whether to accept the application of the Commission’s infringement powers and jurisdiction of the ECJ over this body of instruments or to opt out of them entirely, in which case they will cease to apply to the UK on 1 December 2014.
Parliament should have the right to give its view on a decision of such importance. The Government therefore commit to a vote in both Houses of Parliament before they make a formal decision on whether they wish to opt-out. The Government 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 and a further announcement will be made in due course.
The Government are fully committed to rigorous parliamentary scrutiny of opt-in and Schengen opt-out decisions in relation to new proposals from the Commission. The Government will continue to honour the arrangements that are currently in place following the undertakings of the then Government Minister, Baroness Ashton, for enhanced parliamentary scrutiny of JHA opt-in decisions. The Government will also undertake to extend scrutiny of opt-in decisions with the following commitments.
First, following the existing process of parliamentary scrutiny of all JHA measures under title V of the treaty on the functioning of the European Union (TFEU), the Government commit to make a written statement to parliament on each opt-in decision to ensure that Parliament is fully informed of the Government’s decision and of the reasons why they believe their decision is in the national interest. Where appropriate and necessary, this statement may be made orally to Parliament.
Secondly, the Government urge the Committees to take full advantage of their existing right to call a debate on an amendable motion on any opt-in decision and expresses their willingness to participate in these debates to ensure full transparency and accountability of opt-in decisions.
Thirdly, in circumstances where there is particularly strong parliamentary interest in the Government’s decision on whether or not to opt in to such a measure, the Government express their willingness to set aside Government time for a debate in both Houses on the basis of a motion on the Government’s recommended approach on the opt-in. The precise details of these arrangements to allow such debates and the circumstances in which Government time would be set aside will be the subject of further consultation with the European Scrutiny Committees, business managers and the Commons and Lords Home Affairs and Justice Select Committees. These discussions will also need to determine how arrangements would operate during periods of parliamentary recess and dissolution of Parliament. However, the Government believe that as a general rule, it would be appropriate to do so in circumstances where they propose to opt in to a measure which would have a substantial impact on the United Kingdom’s criminal or civil law, our national security, civil liberties or immigration policy. The Government will also put in place analogous arrangements for parliamentary scrutiny of decisions to opt-out of measures under the Schengen protocol.
As currently, the Government will not override the scrutiny process unless an earlier opt-in decision is essential. Where the Government consider an early opt-in to be necessary, it will explain its reasons to Parliament through the statement set out above. In these circumstances, it would usually be appropriate for the statement to be made orally.
The Government are committed to strengthening its engagement with Parliament on all European Union business as part of our wider work to reduce the democratic deficit over EU matters. It will review the arrangements for engagement on EU issues in consultation with Parliament, and make a further announcement in due course.
These measures will significantly strengthen Parliament’s oversight of EU Justice and Home Affairs matters and make the Government more accountable for the decisions it makes in the EU.
I have discussed the terms of this statement with the Home Secretary and the Justice Secretary who agree with its contents.
Tunisia
David Lidington Excerpts(13 years, 4 months ago)
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Urgent Questions are proposed each morning by backbench MPs, and up to two may be selected each day by the Speaker. Chosen Urgent Questions are announced 30 minutes before Parliament sits each day.
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Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
(Urgent Question): To ask the Secretary of State for Foreign and Commonwealth Affairs if he will make a statement on Tunisia and the Government’s assistance to British nationals.
The Minister for Europe (Mr David Lidington)
I welcome this opportunity to update the House on recent events in Tunisia and on what is being done to assist British nationals there.
The House will be aware that, following a month of protests over Government corruption and the lack of political and economic reform, a state of emergency was declared and President Ben Ali left Tunisia for Saudi Arabia. I hope that the House will join me in expressing our sympathy to all those whose friends and relatives have been killed or injured in the disturbances.
The Speaker of the Tunisian House of Deputies, Fouad Mebazaa, has been appointed interim President in line with the constitution, and he has asked Prime Minister Mohammed Ghannouchi to form a Government of national unity. Talks continue with opposition parties and with civil society to try to agree a way forward, and we hope that there will be an announcement on the new Government later today.
When the situation deteriorated, an estimated 5,000 British nationals were in Tunisia, most of them tourists on package holidays. We changed our travel advice to “all but essential travel” on 14 January, since when more than 3,000 British citizens have left Tunisia; many of them were able to leave on additional flights laid on thanks to the swift response of tour operators, and we believe that approximately 1,000 British nationals now remain in Tunisia. That number is largely made up of long-term residents, as well as dual nationals and some independent travellers. Many of those still in Tunisia do not wish to leave and have told our consular staff that.
Despite exceptionally challenging conditions, the embassy is working to help to resolve the crisis and to provide support to British nationals in Tunisia. We have sent a six-person rapid deployment team from London and two members of staff from elsewhere in the region to reinforce embassy staff in Tunis and to provide constant consular assistance. We have established a 24-hour hotline in Tunisia and in London that people can ring for help and advice, and we have staff at Tunis airport who are liaising with airlines and seeking to help British travellers with medical, passport and other consular issues.
Our embassy staff remain in regular contact with our network of wardens across Tunisia, better to understand the evolving picture around the country and keep those British citizens that we are aware of informed of updates as the situation evolves. We are keeping those British nationals who have registered on LOCATE updated on developments through regular e-mails.
I spoke to our ambassador in Tunis earlier this afternoon. He informed me that his staff are now receiving very few consular calls, and those who are calling are mostly asking for updates on the security situation. We continue to advise against all non-essential travel to Tunisia. We advise anyone in the country who does not have a pressing need to be there to leave by commercial means. The airports are operating, and airlines are flying into and out of Tunisia. Those who are still in the country should respect advice or instructions given by the local security authorities and tour operators and avoid rallies and demonstrations. There is no indication that British nationals are being targeted by looters or rioters, but given the unpredictability of the situation there is always the chance of their being caught up in incidental violence, and our advice is that if any British citizen is in doubt about the safety of his or her location they should stay in their accommodation.
At the political level, my right hon. Friend the Foreign Secretary has been working with partners, including especially those in the European Union, to promote a peaceful outcome and longer-term political reform. As soon as possible, we will be seeking to engage the Tunisian authorities to help with this. We encourage all involved to do what they can to restore law and order, and we call for the full inclusion of all legal political parties in the formation of an interim Government.
The change in Tunisia in the past few days has been profound, but it is not yet the political reform that many Tunisians hope for. The authorities should not ignore the voice of the Tunisian people. The British Government will work with partners to try to ensure an orderly move towards free and fair elections and an expansion of political freedom in Tunisia. There were extended EU discussions on Friday. We have been calling for a speedy and substantial offer of EU support to underpin the move to free and fair elections, which will be critical in re-establishing calm and security in the country.
Today, the High Representative, Baroness Ashton, has issued a statement, saying:
“The EU stands ready to provide immediate assistance to prepare and organise the electoral process and lasting support to a genuine democratic transition.”
We shall continue to provide the help and advice that British nationals need and expect, and to engage with and support Tunisia, as it works for peace and security.
Yvette Cooper
I thank the Minister for his statement and join him in expressing condolences to those who have lost family or friends in these difficult circumstances. Even after President Ben Ali’s departure, which brings to an end a repressive regime, the situation in Tunisia remains tense and uncertain, with prospects for only a fragile interim Government; outbreaks of looting are taking place, alongside continued legitimate protests.
May I ask the Minister about consular support and future Government policy on Tunisia? The Opposition welcome the considerable work done by many of the tour operators to evacuate thousands of people over the weekend. However, I am concerned that the Government were slow off the mark in responding to this situation. On Friday, the Minister responsible for consular policy told the BBC that
“We are not at that moment advising that people make an effort to leave Tunisia.”
Yet a state of emergency was announced that afternoon, following seven days of violence, and tour operators were already bringing British nationals back to the UK. The Foreign and Commonwealth Office did not publicly change its travel advice until Saturday, and the rapid deployment team did not leave the UK until Sunday. British holidaymakers in Tunisia were put in a very confusing and alarming position. They were told by Ministers that they did not need to leave, just as their holiday reps were telling them that there would be emergency evacuations. Does he agree that the Government were too slow to act?
How many British nationals does the Minister believe will still be in Tunisia following today’s flights? Is he confident that sufficient help is in place for independent travellers who wish to return and still need assistance? He will be aware that British Airways has advised its customers that the next return flight to the UK is not until Wednesday, so will he join me in urging BA to provide additional capacity for its passengers tonight or tomorrow? Many tour operators are not yet offering refunds or alternative holidays for people who were due to travel to Tunisia after Wednesday this week. If it is too dangerous to travel there, it is surely unfair to expect holidaymakers to cancel and incur the full financial cost, so I urge tour operators to extend the scope of their refund offers. May I ask the Minister to meet major tour operators to deal with this crucial issue?
Finally, on the Government’s approach to the broader situation, will the Minister tell us whether the Foreign Secretary has spoken to the interim Prime Minister? The ending of the authoritarian regime must be a turning point for a country that, for too long, was under a repressive Administration that denied the Tunisian people their basic democratic freedoms and economic opportunities. I agree with many of the Minister’s points about the importance of Tunisia having free, fair and democratic elections to establish a sustainable and legitimate Government, and I welcome the work being done in the EU. Will he continue to press the EU to support elections, including with possible election observers and practical assistance? The Government have been slow off the mark this week, but we look forward to their being swifter in their response in future.
Mr Lidington
The fact that the great majority of British citizens in Tunisia have been able to leave swiftly, with consular support and advice, indicates that the Government’s response has not been lax in the way the right hon. Lady describes. Clearly, as with any such event that makes sudden demands on our consular services, we will examine any lessons that need to be learned from this episode, but I am sure that she will want to join me in recognising the work and commitment of consular staff, both those UK-based and those locally recruited and working in our embassy in Tunis.
The right hon. Lady asks how many British citizens are still in Tunisia, and our best estimate is about 1,000. One thing that our network of wardens will be doing is trying to find out, by making contact with expatriates and dual nationals in particular, exactly what the remaining numbers are and how many wish to leave. I have been advised by the embassy in the past couple of hours that some holidaymakers are telling us that they would prefer to stay in Tunis to see whether there is a chance of resuming their holiday, in the hope that things calm down there.
I would welcome British Airways or other airlines making additional provision to bring back independent travellers, but that is a commercial matter for them. So, too, are the relationships between customers and tour operators regarding possible refunds for holidays that have had to be cut short or cancelled. As the right hon. Lady and I both know, most decent travel insurance policies will have a clause that provides for reimbursement in the case of such an event. I am sure that those companies will be in touch with their customers as soon as possible to try to reach amicable outcomes. My colleagues in the Department for Transport are in frequent touch with the travel industry, but such matters are best addressed, if possible, between companies and their individual customers.
I should add that we are actively working with the Ministry of Defence on contingency plans should an evacuation of British nationals be needed. At the moment, our judgment is that that is not necessary, but I want to reassure the right hon. Lady and the House that we are not simply sitting back and assuming that things will improve. We have contingency plans in place should matters get considerably worse.
Finally, my right hon. Friend the Foreign Secretary hopes to speak to the interim leadership of Tunisia as soon as possible. I am sure that the right hon. Lady will understand that the leadership’s first priority is to try to set up the much-needed Government of national unity. I hope that it is successful in that endeavour.
Conor Burns (Bournemouth West) (Con)
I was in Tunisia just a few days before this latest outbreak of violence. A constant theme when I talked to people there was the dreadful state of their economy and, above all, the massive unemployment among graduates, particularly among female graduates. Does the Minister agree that if we achieve political stabilisation one of the greatest contributions the United Kingdom and other EU member states can make is to grow trade with Tunisia and improve prosperity for the people, who are in dire need?
Mr Lidington
My hon. Friend identifies an important problem that faces not only Tunisia but many other countries in north Africa and the middle east: the dismayingly high and enduring unemployment among young people. The problem is made even starker when we consider that young people under 26 or under 30 make up, in most cases, about 60% of the population of those countries. Trade and investment are an important way of giving people in those countries hope of a better future, but investment and trade will be more likely if business has confidence that the rule of law and political stability apply. I think that reforms to governance, greater political freedom and an independent system of courts and judiciary go hand in hand with the economic reforms and improvements that my hon. Friend seeks.
Jeremy Corbyn (Islington North) (Lab)
Does the Minister agree that although the toxic combination of high unemployment and corruption brought about the huge demonstrations and the downfall of the President, at the same time the World Bank and International Monetary Fund supported and approved of the economic strategy adopted by Tunisia? Is it not time to recognise that these tired old models create awful problems for young people, leaving them unemployed and leading hopeless lives? Does the Minister not recognise that there must be some change in economic thinking?
Mr Lidington
There must be sensible economic and political reforms, so that those millions of young people feel that they can have a say in how the society in which they live develops and is shaped. That is why the European Union’s assistance for Tunisia is, for the most part, assistance with reform, particularly the reform of governance. It is also why the British Government have established a human development fund, which will seek to assist those sovereign countries—we cannot just go and tell them how to organise their affairs—the stability of which we want to continue, to engage in the reforms that will make them more stable societies in the longer term.
Jo Swinson (East Dunbartonshire) (LD)
I strongly welcome the work being done by Foreign Office officials to support British nationals in Tunisia, but it is not the only middle eastern country that faces rising food prices, high unemployment, corruption and questionable levels of political freedom and human rights. What preparations and contingency plans are our embassies in other middle eastern countries putting in place to make sure that they can provide swift support to UK nationals should the protest and unrest spread to other countries?
Mr Lidington
We have contingency plans in London for the rapid deployment of additional staff in the event of exceptional and urgent need for consular services anywhere in the world, not just in the middle east. I would not like to speculate on where the next demand on our consular services might come; it might be from some other part of the world entirely.
Tony Lloyd (Manchester Central) (Lab)
The Minister rightly talks about immediate need, particularly with English nationals being over there, and in the longer run Britain and the European Union certainly have no interest in an unstable Tunisia. In that context, will he make it quite clear that the EU will support the process of establishing a free and fair election and will make sure that monitors are available from within the European Union to guarantee that not only the world but the people of Tunisia know that the elections are free and fair?
Mr Lidington
The hon. Gentleman, who speaks with considerable experience of election-monitoring work, is right. My right hon. Friend the Foreign Secretary has discussed this very issue with the French Foreign Minister in the past couple of days, and our Government and other European Governments have been making that point to Baroness Ashton and her team. When the hon. Gentleman reads her statement, he will see that one thing she is offering is robust EU support for election-monitoring work.
Dr Andrew Murrison (South West Wiltshire) (Con)
It is very clear that al-Qaeda in the Islamic Maghreb and similar organisations are attempting to capitalise on the current situation. What assessment has the Minister made of that and of any potential threat to the United Kingdom, given the porous nature of our borders with Europe and the clear and present danger posed particularly to France, Spain and Italy?
Mr Lidington
The advice that I have received to date is that there is no evidence that extreme groups that are linked to or similar to al-Qaeda have played a significant part in the uprising inside Tunisia. Nevertheless, my hon. Friend is right to say that we need to be on our guard against the spread of extremism and terrorism throughout the entire Maghreb. That is yet another reason why we should support reforms, ensuring enduring political stability in those countries in the future and that people in those countries do not believe they should turn to terrorism because they have no other way of seeking to change the society in which they live.
Chris Bryant (Rhondda) (Lab)
The Minister will know that for the past 10 years leaders at EU Council meetings have banged on and on about the Maghreb but done absolutely nothing to make sure that there is economic stability and democratic advance in any of those countries. Will he go back to the next Foreign Affairs Council of the EU and say that it is time that we met our commitments from 10 years ago in relation to some of those countries? Otherwise, the future will be no better than the past few weeks.
Mr Lidington
The hon. Gentleman is right to imply that the relationships with the Mediterranean governed by the Lisbon process and the Union for the Mediterranean have not delivered the positive results we all hoped for. My right hon. Friend the Foreign Secretary and I will certainly want to highlight, at the next Foreign Affairs Council, the need to learn lessons from this experience with Tunisia and the need for Europe to get its act together more effectively in terms of its relationships with our southern neighbours.
Robert Halfon (Harlow) (Con)
Is there not still a danger that Tunisia will move out of the frying pan of dictatorship and into the fire of Islamism? What specific steps are the Government taking to ensure that al-Qaeda and Islamists do not step in to fill the vacuum?
Mr Lidington
As I said earlier, the advice that I have received up to now is that the risk of violent extremism to which my hon. Friend refers is not as great as has been made out in some parts of the media. It is much more an uprising by people who have been frustrated by many years of political repression and whose feelings have been aggravated by economic hardship. Nevertheless, I assure him that the British Government will be alert to any risk that extremist groups could try to seize an advantage from what has happened in Tunisia, and we will take whatever steps we can to ensure that they are unable to do so.
Keith Vaz (Leicester East) (Lab)
I thank the Minister for the reassurance that he has given about constituents who are in Tunisia and welcome the fact that he has emphasised the EU. Tunisia, of course, is part of the EUROMED process, and a number of projects have been sanctioned by the EU concerning migration, development and policing. As the hon. Member for Bournemouth West (Conor Burns) said, we might be unable to resolve the current issues there, but can we be ready with plan B, so that we can continue with those initiatives, which are important to the whole of the north Africa rim?
Mr Lidington
The right hon. Gentleman is correct to say that those are important issues not only for Tunisia, but for every country along the north African coast. Certainly, when I have talked with ambassadors from those countries in London, they have expressed concern about the risk that not only extremist groups, but those involved in people trafficking, drug trafficking and other forms of organised crime might use their territories as through-routes to try to penetrate Europe. We want to work with those countries, which are independent sovereign states, to ensure that they are able to improve their governance in the way the right hon. Gentleman describes. It is in the interests of Europe and of those north African countries that they are able to do so and move forward on the basis of greater respect for human rights and enduring political reforms.
Mr Matthew Offord (Hendon) (Con)
Does the Minister agree that when such situations arise, organisations such as the BBC speculating about which country will be next to fall is not only unhelpful to the status of the Government and of Parliament, but concerning to people in those countries and their families here at home?
Mr Lidington
I have taken great care to try not to engage in such speculation today, but we live in a country in which the broadcast media and the press are free to express their opinions and to speculate. That is part of being in a free society.
Bob Blackman (Harrow East) (Con)
I congratulate the Minister on his considered response to the emerging crisis in Tunisia. Clearly, a large number of British nationals are still there, and a large number of British nationals in this country will have relatives, property, assets or businesses there, so what advice and help is the Foreign and Commonwealth Office giving them on the protection of their businesses and relatives?
Mr Lidington
I would advise anyone with such concerns to contact the Foreign Office helpline, in either Tunisia or London as most appropriate, and we will then seek to provide what support we can from either our embassy in Tunis or through our network of wardens around the country.
Richard Fuller (Bedford) (Con)
Many in the House would like to express their sympathy to those in Tunisia who took to the streets and, as they reached for freedom, paid the ultimate price. Does my right hon. Friend agree that the right way to stop the violence, to push back against al-Qaeda and to create the basis for stability and elections is to support the interim Government behind Prime Minister Ghannouchi? Will my right hon. Friend use his office to persuade those in Arab states to lend their support to this change as well?
Mr Lidington
The last point that my hon. Friend made was a particularly good one—that it is important that other Arab countries row in and support the new Tunisian Government when one is formed. The most important thing, though, is that a Government of national unity can be put together who genuinely command widespread support among the Tunisian people and among civil society in that country. That offers the hope of a breathing space and a measure of peace which can provide the basis on which to move forward towards free and fair elections and longer-lasting political reforms.
Neil Carmichael (Stroud) (Con)
I congratulate the Minister on presiding over such a swift response to the crisis. May I embellish the question about other Arab states? Will my right hon. Friend and his colleagues encourage other European countries to help in a project to encourage good governance in those states?
Mr Lidington
The European Union has relationships with a number of Arab states, both in north Africa and in the Levant, which feature discussions about human rights, the rule of law and democratic reform. I agree that we need to intensify those discussions. All those countries are sovereign states. They will want reforms that are true to their own traditions, histories and ways of life, but it is in the interests of all that they are able to bring forward reforms that satisfy the aspirations of their own people. That is what our bilateral human development fund is intended to do, and it is important, too, that European Union effort is carefully designed to meet the objective that my hon. Friend describes.
European Union Bill
David Lidington Excerpts(13 years, 4 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Nuttall
I am conscious of the fact that this has been a long debate and that there are many points for the Minister to respond to so I shall keep my remarks short. Much of what I would have said has been admirably covered by my colleagues on this side of the Committee.
It is a sad indictment of how much power has drained away from the House that we have to debate a sovereignty clause. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd), who is no longer in his place, said that when he came to the House in 1979, such a debate would have been unthinkable. We must ask why we are in this position now. Obviously, it is because of the European Communities Act 1972, which was the start of the problem. As a result of that Act, the House handed over to Brussels—in those days it was not the European Union but the European Economic Community—the power to take decisions on behalf of the British people on matters of commerce. Over the years, that power has expanded to include many different areas.
I know from my constituents that time and again they are infuriated by the amount of legislation affecting their everyday lives that emanates not from Parliament but from the European Union. I congratulate the coalition Government on trying to do something about this problem, but, sadly, I fear it is too late—like shutting the stable door after the horse has bolted. The problem is that the powers have already gone and we are just putting a sticking plaster over what is sadly now a gaping hole.
I pay tribute to my hon. Friend the Member for Stone (Mr Cash) for attempting to stiffen and improve clause 18 on the House’s sovereignty. We should not have to say that this House is sovereign—as Lord Tebbit said in an article a few weeks ago, it is rather like the drunk in the bar saying he is sober. The House is sovereign and we should not have to keep saying so. The clause seems to do no more than state what we already know to be the position. It does not try to amend the law at all. It was sensible of the European Scrutiny Committee, as soon as it saw the Bill and this clause, to embark on a detailed examination of what they meant, sensibly calling witnesses before it. The House sets up Select Committees, so it makes sense to heed what they say. The Committee and its Chairman have tabled the amendments to the Bill and for that reason, among others, I will support their amendments.
There are doubts about why it is necessary to include clause 18 in the Bill. The amendments seek to clarify the position, and to make it easier for judges to examine the reasons why the clause has been included, should they ever be in the position of determining where sovereignty lies, as they will see that the House wants to ensure that it lies here with the House. We derive our power from the will of the British people, who give us power. I believe that that power should stay with us in the House, and not be passed to Brussels, but those are arguments for another day. Today is about how we make best use of the work that has been done by the European Scrutiny Committee to strengthen clause 18, and for that reason I support the amendments.
The Minister for Europe (Mr David Lidington)
I am grateful to all right hon. and hon. Members who have taken part in today’s debate: my hon. Friends the Members for Bury North (Mr Nuttall), for Hertsmere (Mr Clappison), for Daventry (Chris Heaton-Harris), for Harwich and North Essex (Mr Jenkin), for Aldridge-Brownhills (Mr Shepherd) and for Dover (Charlie Elphicke); my right hon. Friend the Member for Wokingham (Mr Redwood) and my hon. Friend the Member for Stroud (Neil Carmichael); and equally the hon. Members for Luton North (Kelvin Hopkins), for Caerphilly (Mr David), for North Durham (Mr Jones), for Dunfermline and West Fife (Thomas Docherty), and for Linlithgow and East Falkirk (Michael Connarty).
The debate has moved between passion and intense thoughtfulness, and both those qualities were demonstrated in the opening speech of my hon. Friend the Member for Stone (Mr Cash). Although he and I have our differences this evening, I want to place on the record my respect not just for the contribution that he has made to tonight’s debate but for the commitment that he has shown in his chairmanship of the European Scrutiny Committee. He is a gentleman with whom I may disagree from time to time, but I happily salute him as a patriot and a champion of the rights and privileges of the British Parliament. We differ over which form of words and which draft of amendment will best accomplish the objectives that we seek. As today’s debate covers both the question of approving clause 18 and the amendments and new clauses that have been tabled, I want to structure my comments first by making clear the Government’s purpose in introducing the clause and then going on to address the individual amendments and new clauses.
Clause 18 addresses the concern that the principle of parliamentary sovereignty, as it relates to European Union law, might in future be eroded by decisions of the United Kingdom’s domestic courts. It would provide authority that could be relied on to counter arguments that European law could become an integral and autonomous part of the UK’s legal system independent of statute. It responds to concerns that the doctrine of parliamentary sovereignty as it relates to EU law may not be unassailably absolute, and may be qualified. The concern is that the doctrine of parliamentary sovereignty is part of common law—a point illustrated by the report by the European Scrutiny Committee and the evidence it took, and clearly a matter that is subject to intense academic debate and contention.
The risk is that British courts might, in future, be attracted to the argument that European law no longer takes effect in this country by virtue of an Act of Parliament but has become entrenched in our legal system, enjoying an autonomous status—in the jargon, it has become a basic “grundnorm” underlying the UK legal system, to be applied by our courts and against which ultimately UK legislation falls to be measured.
There are three main sources for that concern. The first stems, yes, from the arguments run by the counsel for the prosecution in the so-called “metric martyrs” case of Thoburn v. Sunderland City Council. It is worth saying a little about that case because the issues raised were of great significance. The prosecution argued that the European treaties’ effect in domestic law did not depend—merely, at least—on the terms of their incorporation by the European Communities Act 1972 but, to a decisive extent, on the principles of European law itself.
The argument was that European law had been entrenched rather than merely incorporated, by virtue not of any principle of domestic constitutional law but of principles of Community law already established in cases such as Van Gend en Loos v. Nederlandse Administratie der Belastingen and Costa v. Enel, to which hon. Members have referred in this debate.
If that argument had prevailed and if it were to prevail in the future, we would need to think about what the practical effect might be. For example, let me take the prohibition on discrimination on grounds of nationality set out in article 18 of the treaty on the functioning of the European Union. Our courts have recognised that the provision has direct effect in the United Kingdom. Under the prosecution’s principle in the “metric martyrs” case, the courts would interpret that prohibition and seek to enforce it as part of UK law, even if Parliament were to remove the statutory mechanism by which it had been given effect in the UK, by either repealing or amending the European Communities Act 1972.
But if we pass clause 18 and enshrine in statute the principle that the authority of European law derives solely from Acts of Parliament, then the courts could not do that because article 18 could have direct effect in the UK only because Parliament had provided a statutory mechanism to allow that. If that statutory mechanism were to be repealed without replacement, there would be no basis on which it could be given direct effect in this country. Although those arguments were rejected by Lord Justice Laws, they could well be made again in future cases.
Mr Cash
That was a case of first instance and we do not know what might happen in future. Does my right hon. Friend accept the reasoning of Lord Bridge in Factortame? He clearly stated that our adherence to the principles that flowed from an Act—the European Communities Act 1972—and therefore his judgment was based on a voluntary acceptance by this House, in its sovereignty. I add the words “in its sovereignty”, because that is the key issue.
Mr 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.
Mr Cash
The reference that the Minister slipped in about Martin Howe is quite unreasonable. What Martin Howe said in his written evidence is that he thought that the provision, if it were to be made properly and correctly, ought to be done within the framework of the European Communities Act 1972.
Mr Lidington
I will come to that precise point later in my remarks. The point I was making a moment ago was that, in a pamphlet published in 2009, Mr Howe expressed very similar concerns to those expressed today by my hon. Friend and others that there is a serious risk —if not an immediate one—that there would be further challenges to the principle that it is only parliamentary action that gives authority to EU law in this country.
We have taken advice from lawyers across Government, not just from those in the Foreign and Commonwealth Office—although I would be the first to defend the lawyers in my Department from some of the criticisms made during the debate. The Government’s analysis has led us to the conclusion that to date there is no persuasive legal authority to support the contention that the doctrine of parliamentary sovereignty in relation to EU law is no longer absolute. However, there is a need to put the matter beyond speculation for the future. By confirming in statute that directly effective and directly applicable EU law takes effect in this country only by virtue of an Act of Parliament, we are putting the matter beyond doubt for the future.
Mr Lidington
Certainly not. I am saying that we made sure we took legal advice from all the relevant Departments across Whitehall. The views I am expressing—what is in the Bill—reflect the legal advice that has been given, as well as the political decisions that Ministers have taken about what should be included in the legislation.
As I said on Second Reading, clause 18 is declaratory or, as my hon. Friend the Member for Dover said, it is a codification. The clause creates a statutory point of reference to which any future court that considers an argument about the source of authority for European law in this country must have regard. It reflects the dualist nature of our constitutional system, under which international obligations—including those assumed by the UK through our membership of the European Union—are not self-executing within the UK legal system. The fact that the UK is dualist means that European Union law is enforceable here only because this Parliament has legislated to make it so. The clause makes it clear that such European law has authority only by virtue of the fact that Parliament has, through its Acts, decided to import it into the domestic legal order.
In the event of any litigation arising where a party sought to claim that directly applicable or effective EU law had an autonomous legal existence in the UK, the other party would be able to counter that argument by referring to clause 18 and, similarly, judges would take this into account in addressing the arguments raised in their judgments.
Mr Cash
I am most grateful for the Minister’s final remarks about the judges. He tried to discharge the point, which I had already made, about the argument that comes from the judges in the Supreme Court and the judicial trends—there was pretty well unanimous agreement on those in the evidence that was given to us—towards a diminution of parliamentary sovereignty through the courts. He must accept that the very fact the judges made those remarks with regard to the Hunting Act 2004 and the case of Jackson in 2005 not only indicates but makes it a darned certainty that they will say such things in respect of other case law, irrespective of whether it is in the European framework or not.
Mr Lidington
That enforces the need for us to put on a statutory basis the position that European law has effect here solely because of parliamentary decision and not any other source of authority.
Michael Connarty
Clause 18 says that we gave away our primacy in terms of European law in section 2(1) of the 1972 Act. What is being done in the clause to take back from Europe the power that the people were promised would be taken back?
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.
Mr Cash
I thought that my right hon. Friend would give way at that point, because he could see that I could not resist making a point. The status of EU law provision—the stand-alone arrangement that is unnecessary in its present form and achieves nothing—refers to the entire gamut of European legislation. If I may say so, it is exceedingly disingenuous of him to trot out the argument given to him by his lawyers that there is a comparison with the Chiropractors Act 1994.
Mr Lidington
We wanted to be certain that the clause caught every piece of legislation that it can be argued gives effect to European Union legislation in this country. My hon. Friend would have been the first Member of this House on his feet to criticise me had I left the loophole of legislation other than the 1972 Act that it can be argued has such an effect.
I shall turn to the specific amendments, starting with amendment 41, which was tabled by my hon. Friend. The amendment seeks to affirm the overall principle of parliamentary sovereignty in relation to EU law. I maintain that there is the difficulty that there is no existing statutory definition of sovereignty. The clause deals with one specific practical expression of parliamentary sovereignty. To introduce the word sovereignty more generally would invite speculative consideration by exactly the kind of ambitious judges whom he fears.
It is clear from the evidence to the Select Committee that there are differences of opinion on the nature of parliamentary sovereignty. Professor Wade is quoted as saying that
“the sovereignty of Parliament is ultimately a judicially recognised ‘political fact’. And when the judges recognise that the political facts have changed, the meaning of sovereignty changes accordingly.”
Professor Allan is quoted as disputing that:
“sovereignty should be seen, not as judicial recognition of political fact, but as a rule of the common law based on reason just like any other rule of the common law.”
Something based on reason is self-evidently subject to change. Therefore, I do not believe that passing the amendment would provide the safeguards that my hon. Friends seek. I do not think that it would achieve the purpose as successfully as the Government’s wording in the clause.
Dr Julian Lewis
My right hon. Friend is doing a grand job and has already persuaded me that I should not refuse to vote for clause stand part, but he has not persuaded me not to vote for amendment 41, tabled by my hon. Friend the Member for Stone (Mr Cash). Why, if that amendment is defective in the way that the Minister describes, did our Front Benchers approach my hon. Friend when we were in opposition, take over an identical amendment that he had drafted and run with it extensively in both Houses?
Mr Lidington
My hon. Friend is ingenious and teasing in his question, but I am here to represent the policies of the Government, not to account for what our party said a few years ago in opposition.
My fear is that the impact of the amendment could be the opposite of what my hon. Friends who support it hope for. My hon. Friend the Member for Stone and Professor Tomkins have warned of a new trend of judicial activism, and my hon. Friend argued that powerful elements in the judiciary were seeking as a matter of policy to challenge the principle of parliamentary sovereignty. I find unpersuasive the argument that to introduce the word “sovereignty” into the Bill would quell that ambition. The word lacks a clear definition—we have found about 30 statutes that include it, and they all refer to territorial sovereignty, not to constitutional authority. There is no existing accepted definition, and I fear that the lack of a clear definition would encourage the very judges against whom my hon. Friends warn me to interpret the substance, scope and limits of sovereignty through judicial activism.
David Morris (Morecambe and Lunesdale) (Con)
I wish to pose a question. Let us say, for argument’s sake, that the nationalists in Scotland imposed the euro. What powers would we have to defend our sovereignty and economy without the amendment tabled by my hon. Friend the Member for Stone (Mr Cash)?
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.
Mr Lidington
If one follows the logic that my hon. Friend and others have adduced this evening about the ambitions and activism of certain members of the senior judiciary, and if one considers the arguments that would be made by counsel and parties on both sides if a case were pleaded before a court—they would inevitably draw attention to the absence of any definition of parliamentary sovereignty—one sees that my hon. Friend underestimates the risk that the amendment would encourage judicial activism rather than provide an antidote to it. The concerns about definition apply to other amendments and new clauses, as well.
I wish to say a brief word about the explanatory notes, which have been mentioned in a number of speeches. I note that the European Scrutiny Committee’s report recommended that they should reflect the balance of opinion on the matter. As my right hon. Friend the Foreign Secretary said on Second Reading, references to the common law are meant simply as a contradistinction to statute, given that the principle of parliamentary sovereignty is defined nowhere in statute. They are not meant to be determinative of the origin of the principle, which goes far beyond the scope of the Bill.
Although I do not believe that one phrase in seven substantial paragraphs of the explanatory notes bears the weight that some of my hon. Friends have placed upon it, I will respond to the concerns that have been addressed. The coalition will amend the explanatory notes before the Bill enters the Lords, to address satisfactorily the concerns that the European Scrutiny Committee has raised. That will in no sense change the effect of the clause, which is couched in terms of the status of EU law in the UK legal order, and does not refer explicitly to parliamentary sovereignty or take a position on the origins of that principle.
Mr Lidington
I have had no private conversations with my hon. Friend the Chairman of the European Scrutiny Committee—the hon. Member who expressed concern. The hon. Gentleman is in his place. Like every other hon. Member, he has had the opportunity to hear about the proposed change.
New clause 1 deals with section 3(1) of the European Communities Act 1972. By virtue of that Act, jurisdiction has been conferred on our courts to determine and adjudicate on disputes arising under EU law. That jurisdiction does not arise from the treaties, nor have the courts conferred it on themselves. Courts here possess that power because Parliament has determined that it is appropriate for them to do so and has legislated accordingly.
Section 3(1) of the European Communities Act provides that, for the purposes of legal proceedings in the UK courts, any question about the meaning or effect of the treaties is to be treated as a matter of law and requires the UK courts to take judicial notice of the treaties, the Official Journal and any decision of the European Court of Justice. Together with section 2, it is a cornerstone of the European Communities Act and, like the rest of the measure, subject to appeal or amendment by Parliament if we choose.
New clause 1 would restrict the exercise by the courts of their jurisdiction to interpret and address issues of EU law by ensuring that it does not extend to construction or interpretation by the courts of the nature or legal effect of parliamentary sovereignty.
Mr Redwood
Will the Minister tell the House that he wishes to assert parliamentary sovereignty and resist judicial incursions, even if he will not put that in the Bill?
Mr Lidington
Yes. I am an elected Member of Parliament. I did not campaign for many years to come here to hand over the powers and privileges of the House of Commons to unelected groups of any sort.
New clause 1 is ambiguous because the lack of a definition of parliamentary sovereignty may encourage the courts to intervene rather than discourage them from doing that. I also think that it is mistaken because the primacy of EU law in the UK legal system does not flow from section 3(1) but is addressed under section 2(4) of the European Communities Act. If the intention is to guard against any risk of our courts using European Court jurisprudence to undermine parliamentary sovereignty, I do not think that it would achieve its desired objective given its drafting.
New clause 4 refers to part 3, but its primary focus is clearly clause 18. In one sense, I support the new clause’s aim. We have made it clear that clause 18 is declaratory and does not alter the existing relationship between European and UK law, and that the rights and obligations assumed by this country on becoming a member of the EU remain intact. However, I am afraid that the Government cannot support the new clause, which implies that something in clause 18 could adversely affect the existing constitutional law on the sovereignty of Parliament in relation to European law. That is not the case. As hon. Members can imagine, we examined the matter carefully and took legal advice from the Foreign Office and elsewhere in Government. I therefore urge my hon. Friends not to press new clause 4.
Amendment 52, tabled by the official Opposition, need not detain us for too long. It is misleading because it implies that the ECJ has a role in determining how European law takes effect in this country. When the hon. Member for Caerphilly next refreshes his memory by reading the treaty, he might see that this is not a matter that falls within the ECJ’s jurisdiction. It is a matter for the UK courts, and no less a figure than Jean-Claude Piris, recently retired as head of the Council’s Legal Service, said in his evidence to the Committee that it is for each member state to determine the constitutional mechanisms through which it gives effect to the legal obligations arising from membership of the European Union.
The Government think that this amendment is not necessary. It is not necessary to take up additional parliamentary time through the process that the Opposition propose. In the event that there were to be a serious challenge to the authority and sovereignty of Parliament, I would expect that hon. Members, on both sides, would want an immediate statement from the Minister and an urgent debate, instead of waiting 12 months for an annual report, which is the only remedy that the hon. Gentleman proposes.
In the coalition’s programme for government, we said that we would examine the case for a United Kingdom sovereignty Bill, to make it clear that in terms of European law ultimate authority remains with Parliament. Through clause 18, we are affirming and confirming that the status of European law in our legal order is dependent on a continuing statutory basis. That is a commitment that the Government believe it is right to put beyond any future speculation. The place where future UK law and future decisions about the authority of European law should be determined is in Parliament and nowhere else. I commend the clause to the House.
Mr Cash
I am very glad to see that the Prime Minister is in his place for these final moments. He and I have had some interesting correspondence. I thank all hon. Members who have participated in this debate, which included some brilliant speeches from my hon. Friends the Members for Harwich and North Essex (Mr Jenkin), for Hertsmere (Mr Clappison), for Aldridge-Brownhills (Mr Shepherd) and others.
In the brief time that I have left, I confirm that I will press amendment 41 and I would be astonished if anybody voted against it. However, I am certain that they will. The difficulty that they will then be in is that, although I will not move the other amendments because of a lack of time and because the issues have been encapsulated in the debate, I have demolished the argument put up against the amendment that the status clause should not be by virtue of a common law principle, both in respect of the academic arguments and of those that have been put forward by the Foreign Office in the explanatory notes. I have, I believe, demolished the argument relating to the question of parliamentary sovereignty, and I refer the Minister to the State Immunity Act 1978, which clearly deals with the question of the sovereign or other head of state in his public capacity. It is already in an Act of Parliament and, by the way, it is not defined, any more than “the rule of law” is defined in the Constitutional Reform Act 2005. It does not need definition: the statement and the principle stand.
The sovereignty of Parliament is inviolate, but requires to be reaffirmed, as the Prime Minister has repeatedly told us in the past, but unfortunately will not do through this Bill. With respect to the question about section 3, it eliminates the impact of the courts seeking to use the European Communities Act 1972 to achieve their objectives in relation to parliamentary sovereignty. The other provision in new clause 4 reaffirms the existing constitutional law on the sovereignty of the United Kingdom Parliament in relation to EU law, and I am glad that the Minister has said that he agrees with the sentiments, which I believe are justified.
Having said all that, I believe that we have had a thoroughly good debate, and that, above all else, we have proved our point. We know that we are not going to win the vote. The Labour party has completely reneged on its principles, as expressed by the leader of the party when he said that their rubbish amendment was a matter of principle in defending parliamentary sovereignty. He must be joking! The fact is that clause 18 does not defend parliamentary sovereignty either.
General Affairs Council and Foreign Affairs Council
David Lidington Excerpts(13 years, 4 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Europe (Mr David Lidington)
The Foreign Affairs Council and General Affairs Council were held on 13-14 December in Brussels. My right hon. Friend the Foreign Secretary and I represented the UK.
The agenda items covered were as follows:
Foreign Affairs Council (FAC)
The FAC was chaired by Baroness Ashton. A provisional report of the meeting and adopted conclusions can be found at:
http://www.consilium.europa.eu/uedocs/cms data/docs/pressdata/EN/foraff/118456.pdf
Sudan
Conclusions were adopted (see link).
Dame Rosalind Marsden, EU Special Representative in Sudan, briefed Ministers on preparations for the 9 January referendum. The Development Commissioner (Piebalgs) highlighted engagement with southern Sudan and the need to tackle Sudan’s debt burden.
The Foreign Secretary stressed the need to focus on the EU’s contingency planning, building capacity in the south, and engaging with the north.
Somalia
During a broad discussion on Somalia, many Ministers stressed the need for a more comprehensive EU strategy covering development, support for the Transitional Federal Government, counter-piracy and security work, and engaging the regional states. The Foreign Secretary encouraged the European Commission to enhance its engagement with Puntland.
Côte d’Ivoire
Conclusions were adopted (see link).
Ministers exchanged views on the recent presidential election. The conclusions include an intention to adopt restrictive measures against those who are obstructing peace and national reconciliation and jeopardising the proper outcome of the electoral process.
Afghanistan
Baroness Ashton summarised recent developments in Afghanistan and the NATO summit, which she had attended. The Foreign Secretary and others emphasised the need for the EU to focus on supporting governance, training capacity and delivering on the EU action plan agreed in October 2009 (see link below).
http://www.consilium.europa.eu/uedocs/cms data/docs/pressdata/en/gena/110789.pdf.
Middle East Peace Process
Conclusions were adopted (see link).
The Foreign Secretary welcomed the adoption of the conclusions, particularly the readiness of the EU to assist in the reconstruction and economic recovery of Gaza.
Baroness Ashton acknowledged frustrations over the lack of progress with the peace process, but noted the EU’s collective commitment to continue supporting US-led efforts.
Western Balkans
Ministers briefly discussed the Kosovo elections of 12 December. Baroness Ashton and the Enlargement Commissioner (Füle) made a statement on this:
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/118432.pdf.
There was broad consensus on the need for the EU-facilitated dialogue between Belgrade and Pristina to start as quickly as possible. There was a brief discussion of the situation in Bosnia and Herzegovina, and agreement that there should be a fuller discussion early next year.
Iran
Baroness Ashton briefed Ministers over dinner on the talks she attended with the E3+3 countries (France, Germany, UK, China, Russia and the US) and the Iranian nuclear negotiator in Geneva on 6-7 December. Details were set out in my earlier written ministerial statement looking ahead to this FAC/GAC.
Strategic Partners
Baroness Ashton set out her thoughts on the EU’s relation with strategic partners, particularly China, Russia and the US, ahead of her presentation to the European Council on 16 December. There was a broad agreement for the UK’s suggestion to operationalise Baroness Ashton’s ideas with objectives and deliverables for each strategic partner. This was also discussed at the GAC (see December European Council below).
Priorities for 2011
Baroness Ashton presented her priorities for the external action service. These include the Western Balkans, the Middle East Peace Process, Iran, Syria, Maghreb, Sahel, Turkey and the Eastern Neighbourhood.
Moldova
Ministers had a brief exchange on Moldova’s elections of 28 November and the continuing negotiations on forming a Government.
OSCE Summit
Ministers assessed the outcome of the OSCE summit in Astana of 1-2 December. Baroness Ashton underlined that the summit declaration provided a mandate to take forward work on the action plan which the EU would support. See link:
http://www.osce.org/documents/mcs/2010/12/48067_en.pdf.
Lithuania set out its 2011 OSCE chairmanship-in-office programme. Priorities will include: developing a dialogue with Central Asia; greater co-operation between the OSCE, EU and NATO; media freedoms; and energy and cyber security.
General Affairs Council (GAC)
The GAC was chaired by the Belgium Deputy Prime Minister and Minister of Foreign Affairs, Steven Vanackere (EU Presidency). The President of the Council, Herman Van Rompuy, joined Ministers over lunch.
A provisional report of the meeting and adopted conclusions can be found at:
http://www.consilium.europa.eu/uedocs/cms data/docs/pressdata/EN/genaff/118495.pdf.
European Citizens’ Initiative
The Council endorsed an agreement on the initiative, which aims to make it possible for EU citizens to call for a legislative proposal to be made on specific issues. I said that we agreed in principle with the initiative, but regretted that more was not done to minimise the burdens on member states. For this reason, and for reasons of parliamentary scrutiny, I noted that the UK would abstain from the vote.
December European Council
The main part of this discussion took place over lunch with Herman Van Rompuy.
Ministers examined draft conclusions for the Council to be held on 16-17 December. The December Council will look at the outline of a permanent crisis mechanism to safeguard the stability of the euro area and a limited amendment to the EU treaties required to create such a mechanism. Additionally, Ministers reviewed the EU’s relationship with strategic partners ahead of Baroness Ashton’s presentation to the December European Council.
I set out UK concerns about treaty change. There should be no transfer of competence to the EU. I emphasised that article 122(2) of the treaty of the functioning of the EU (TFEU) should not be used to provide assistance for economic or financial crises; that absolute clarity was necessary that the UK would not be bound by the new provisions; and that no liability should accrue to the EU budget or to non-participating states. On strategic partners, there was considerable support for my proposal for an annual review of the EU’s relations with partners at European Council level.
EU Enlargement
After much discussion. Ministers agreed enlargement conclusions (see link) on the basis of the Commission’s enlargement package published 9 November. I successfully argued for the inclusion of language on the need to protect the credibility of the enlargement process to ensure members states’ continuing support and our ability to advance reforms in candidate countries. The UK’s key concerns were protected in the individual country conclusions. One issue was referred to the European Council: the Commission’s recommendation to grant candidate status to Montenegro.
February European Council
There was a brief review of the agenda for the February European Council, which includes energy policy and innovation.
Europe 2020
The presidency made a short presentation on the implementation of the Europe 2020 strategy for jobs and growth. The next step will be a publication of the annual growth survey on 12 January. Europe 2020 will also be reviewed at the December European Council.
Cohesion Policy
There was short presentation by the Commissioner for Regional Policy (Johannes Hahn) on the Commission’s report on structural cohesion funds (see link).
http://ec.europa.eu/regional_policy/sources/docoffic/official/repor_en.htm.