European Union Bill Debate
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Denis MacShane
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European Union Bill
Denis MacShane Excerpts(13 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Cash
I am deeply grateful to my hon. Friend for his intervention, because he is exactly right. Since 1972, there has been an accumulation that has now turned into a tsunami—a sort of Pied Piper of Hamelin, whom we all remember from our childhoods—as the accumulated rumbling and tumbling has gone on and on. We are now faced with a continuous stream of legislation divesting the House of its right to legislate, and this is an opportunity—one not invented by me in terms of the clauses proposed by the Government—to enable us to regain the sovereignty that belongs to the people of this country, the voters in general elections and Members of Parliament elected to the House for the purposes of protecting those voters’ interests.
Mr MacShane
Just as we start this interesting debate, I would like to know whether the hon. Gentleman accepts the broad principle of pacta sunt servanda.
The Chairman
Order. We cannot have two hon. Members on their feet at the same time.
Mr Cash
With the greatest respect, we have already had one intervention from the right hon. Gentleman. Perhaps he would be kind enough to wait.
It would be ironic to say the least if the slogan “Working together in the national interest”, which we saw at our party conference, were to become “Working together against the national interest”. I do not believe that any Member of Parliament or any Minister would agree that the coalition—a “temporary alliance”, according to the “Oxford English Dictionary”—should be employed in any way to pass legislation that would undermine parliamentary sovereignty. Incidentally, I am somewhat appalled at the lack of coverage not of this debate but of the European Scrutiny Committee report when it came out, given the fundamental nature of the issues at stake, and the quality of analysis not only in the report itself but in the evidence given to us by probably the most distinguished constitutional experts in the land.
I will turn first to the constitutional and legal issues that clause 18 raises and which were carefully considered for several weeks by the European Scrutiny Committee, which received evidence on a completely even-handed basis, which, because of the fundamental importance of the issues to our constitution and our democracy, was well worth doing. In the course of the proceedings it became clear that many of the constitutional experts concerned felt that, at the very least, clause 18 was completely unnecessary. The most compelling evidence—the evidence that we received from Professors Tomkins and Goldsworthy, along with a number of others—was that clause 18 was hazardous and dangerous, particularly in the light of the Government’s assertions.
The issue of parliamentary sovereignty has been a matter of fundamental concern, importance and action since the 17th century. However, parliamentary sovereignty acquired a special and fundamental significance with the extension of the franchise in the mid-19th century, from the Reform Act of 1867 onwards—for example, through the Reform Acts of 1885 and 1884—and is undoubtedly the democratic basis of the United Kingdom constitution. However, irrespective of its now democratic basis, parliamentary sovereignty has become increasingly questioned recently—and only very recently—by reason of judicial assertions. Although on the tin, as well as in many repeated statements, we were told—I refer now to my hon. Friends on the Conservative Benches—that we would be getting a sovereignty clause or even a sovereignty Bill, clause 18 is emphatically not a sovereignty clause. For reasons that I will explain, the clause will actually undermine parliamentary sovereignty by encouraging judicial supremacy. The explanatory notes put forward the dangerous notion that parliamentary sovereignty is a “common law principle”, and therefore subject to judicial authority. However, even if the explanatory notes were disavowed on this matter, the problem of judicial assertions relating to parliamentary sovereignty would not disappear.
Mr Cash
I should be more than happy to show the hon. Gentleman a book that is entirely devoted to the issue of the sovereignty of Parliament. The point is that there is no need to define parliamentary sovereignty. The Constitutional Reform Act 2005, which gave greater independence to the judiciary and the whole of which ultimately turns on the rule of law, does not contain any definition of the rule of law. Certain fundamental principles, and methods whereby we are governed, do not require definition for that purpose. They are applied, in the case of both sovereignty and the rule of law. There is a natural constructive tension between the two, but it is our job to protect the element that involves the sovereignty of Parliament.
Mr MacShane
I do not disagree with what the hon. Gentleman has been saying, but the fundamental rule of international law in regard to treaties is “pacta sunt servanda”. Those who sign a treaty must abide by it. If Parliament does not like a treaty, it has a sovereign right to withdraw from it. We can withdraw from the European convention on human rights, which is concerned with deporting people and so forth, and we can do the same in regard to the European Union. That is not a nuclear option; it is a perfectly fair choice that this Parliament could take. I rather wonder whether that is the speech that the hon. Gentleman should be making.
Mr Cash
I shall deal with that point shortly, but—with respect to the right hon. Gentleman—he will have to be a little patient.
As Members will have noticed, I have sought only to strengthen clause 18, which, as it stands, merely refers to the “Status of EU law”. We were promised a sovereignty clause, and my amendment would achieve that. The clause as it stands would be subject to statutory interpretation, and it would be strange, uncertain and hazardous not to insert this provision in the framework of the European Communities Act 1972 itself. Clause 18 is a stand-alone clause. It refers to the “Status of EU law” and to section 2 of the European Communities Act, but it does not amend the Act. I am talking here about section 2 through section 3, when the judges apply themselves to any law. The clause is only six lines long, but it incorporates and absorbs within it every single piece of European legislation, so it applies to everything. However, although we know that law from the European Union emanates through from the 1972 Act, this measure does not amend the Act when incorporating the status of EU law. I am extremely concerned about that and find it very strange. In fact I will go further and say that I think the measure is deliberately contrived to make sure it is not an amendment to the 1972 Act.
Mr Jones
If there is a referendum, it will be interesting to observe the actions of the coalition. As on many other occasions, it will behave rather like Dr Dolittle’s pushmi-pullyu. Let us be honest: the hon. Gentleman and others are unlikely to agree with the Liberal Democrats on most European issues, given their clear view that nasty foreigners across the water are somehow doing terrible things to this Parliament and this country.
Mr MacShane
Is there not an alternative reading of the manifestos? The Liberals’ “in or out” referendum offer led to their losing five seats, while the Conservatives’ isolationist sovereignty Bill offer led to their failure to secure a majority. I suspect that if the Conservatives had remained true to their vocation of being internationalists, they might have secured that majority. It was their Euroscepticism that gave them only 303 seats. That is an alternative reading of all the figures that have been given.
Mr Jones
I imagine that it is, but the real point about the modern Conservative party is that it has not changed. It is virulently anti-Europe. At the time of the election, however, the Conservatives had to give the impression that they had put all that behind them.
Another view—amplified by the hon. Member for Dover—is that these nasty people in Europe do things to Britain in which our Parliament has no say, and that if we do not stand up and make token gestures such as this, those nasty foreigners will take away the rights that we have developed over many centuries. It should not be forgotten that, early in this country’s history, the Norman invaders spoke Norman French, and for a long time northern France was part of England.
Mr Jones
Well yes, but funnily enough we still see many cars parked outside this building.
The important point about the Thoburn v. Sunderland City Council case is that the council attempted to assert the primacy of EU law and EU legislative and judicial institutions but that was rejected, and that is the case law that is now in place. Therefore, although Eurosceptics in this House and commentators outside suggest that somehow these laws are coming from Europe and they are imposed on us and we have no control over them, that is not the case, so I do not see why we need this point to be reinforced through clause 18. To be fair to the European Scrutiny Committee, it makes the good point that the Thoburn case sets out the law as it is currently interpreted.
Mr Jones
I do not want to go down that route, but I think that point has already been dealt with very well. We did not do what we are being accused of having done. [Interruption.] I do sometimes worry about some Conservative Members, as they must have to lie down in a darkened room and take sedatives after having got themselves so frothed up and excitable about the Lisbon treaty somehow being the end of the world as we know it. Unfortunately for them, the end of the world has not happened because of the implementation of the Lisbon treaty.
Mr MacShane
For the sake of some of our new distinguished colleagues, it might be worth while if we remind ourselves that a promise was made on a referendum on the constitutional treaty, but that was killed by the French and the Dutch. The right hon. Member for North Somerset (Dr Fox), who is now Secretary of State for Defence, said at the Dispatch Box that he was a doctor and he knew death when he saw it. That constitutional treaty is dead, and we cannot have a referendum on a dead parrot.
Neil Carmichael
We in the Conservative party are always celebrating, especially with our coalition partners, the success of our Government, so we have lots to celebrate. The hon. Gentleman is right about the renewal of marriage vows being a cause for celebration, but I am not entirely sure that we will be drinking champagne when we have defeated this amendment and passed the Act.
The point is that if something exists, we do not need to keep reaffirming it. Funnily enough, the hon. Member for North Durham (Mr Jones) was absolutely right about the wording of the amendment: if one reaffirms something, one effectively admits that it is already there. Something I have noticed during the past three and half hours I have spent in this debate, except for the brief moment when I had a drink, is that clause 18, as drafted, is required because there is so much misunderstanding about what sovereignty is and what power Parliament has. When my right hon. Friend the Member for Wokingham (Mr Redwood) spoke, we deviated into the 1600s in connection with the outcome and causes of the English civil war, but the real issue there was the relationship between the King and Parliament. We must remember that the monarchy is still part of Parliament, because an Act does not become an Act until it has received Royal Assent.
Another, much more interesting, dimension of this discussion is the transfer from kingdom to nation state. That has rather more to do with sovereignty than our involvement in the European Union. Suppose that we wanted to leave the European Union—we would simply repeal the European Communities Act 1972. We are not going to do that, but that is what we would have to do. But what if Essex wanted to leave England? How would that unfold? That would be a completely different situation and would bite at the issue of sovereignty. It is important to get right this issue of what sovereignty is. The shadow Minister started to speak about that and the very fact that we are debating it proves that we should not use the word sovereignty in the Bill because it will lead to a need for interpretation.
It is also important that instead of talking about sovereignty, as we have for the past three hours, we ought to discuss what Parliament should be doing to make a difference in the European Union, if that is what we really want. My right hon. Friend the Member for Wokingham did not really answer the question he was asked about the common fisheries policy. The matter is very simple: if we did not want to be in the CFP, we would have to say so and pass appropriate legislation having made the necessary agreement with our European partners. It would no doubt be messy and would certainly be complicated, but it would not be prevented by our no longer being sovereign because we are. Parliament has the power to take the decisions necessary to bring about such an outcome.
It is important to focus on what Parliament does rather than on what we think it is. That is the difference. This discussion is about sovereignty, but we have to move away from that specific issue and focus instead on the power and role of Parliament and the way it can influence things. At the end of the day, if we decided to leave the European Union, we would have to repeal the 1972 Act, which some people might want to do. Others might want to reform or restructure it in some way—we have heard from my hon. Friend the Member for Dover (Charlie Elphicke) that that would, to some extent, be his direction of travel—but the most important thing for us to do is define the national interest and pursue it relentlessly. My hon. Friend the Member for Stone (Mr Cash) talked about the national interest and Disraeli’s description of the Conservative party as always being the national party. That is what we have to do, and that is what the Conservative party, with our Liberal Democrat partners, will continue to do—try to shape a role for Britain that is constructive but without allowing the European Union to be too intrusive on how we proceed. That is the best way that we can act as a Government.
Mr MacShane
I am pleased to follow the hon. Member for Stroud (Neil Carmichael) who, in his short and effective speech, demolished some of the more windy and high-blown rhetoric that we have heard tonight. Sovereignty is a wonderful topic for a seminar but is rather more difficult to define than one might imagine. In many continental legislations, the people are sovereign. The American constitution starts: “We the People”. In such a system, it is not the Parliament or Congress that is sovereign but the people, who grant to the President or Parliament the right to govern in their name. In other countries, there are checks and balances known as a constitution or as direct democracy through forms of plebiscite and referendum. We have never gone down that path and have always refused a written constitution. In his book, “The English Constitution”, Bagehot contrasted the flexibility that the lack of a written constitution affords Britain with the American constitution, which he said was so rigid that it could be broken only through the civil war that was taking place as he was writing or compiling his book.
The additions that the hon. Member for Stone (Mr Cash) and his colleagues on both sides of the House propose to clause 18 are superfluous because they will not add one extra bit of strength to the Bill. The Bill is cynical and worthless. The Government—or at least the Conservative part of the Government—may have campaigned in opposition as Eurosceptics but they have found that they have to govern as Eurorealists. I congratulate the Minister and the Government on being very Eurorealist since the coalition was formed in May. They have accepted a number of measures that require Britain to pay money or accept collective decisions, and have shown no desire to oppose the proposed changes in the Lisbon treaty to effect greater economic governance in Europe that were decided collectively by all 27 member states. They hide behind the convenient and comforting myth that that only affects the eurozone but, precisely to ensure better and more effective governance, much of which will involve a degree of fiscal discipline, we are gradually moving in the direction of greater co-ordination of our economic and fiscal policies in Europe. It will not be a case of giving orders or dictating tax levels—some countries might want to put up VAT, some might want to put up income tax, some might want to put up corporation, petrol, environmental, housing tax or whatever, and that will remain their individual decision—but much greater co-ordination is coming fast down the tracks. We live in such an open trading economy that if we want the European Union to remain open to all of our products, services, people and capital, we will require greater co-ordination.
The First Deputy Chairman of Ways and Means (Mr Nigel Evans)
I am listening carefully to Mr MacShane, and if he is out of order, I will call him out of order.
Mr MacShane
I am grateful, Mr Evans.
We have heard a wide range of speeches, including one from the right hon. Member for Wokingham (Mr Redwood). We had a wonderful seminar on constitutional law from the hon. Member for Stone, and we are discussing something of profound importance: whether or not our country and this Parliament want to stay in the European Union on the common terms dictated by the treaty.
Andrew Bridgen
Is the right hon. Gentleman’s rather rambling speech just a ploy to use up time so that his colleagues can get back from Oldham?
Mr MacShane
I would politely suggest to the hon. Gentleman that he wait until the early hours of Friday morning before he begins to smirk about Oldham.
The First Deputy Chairman
Order. We are definitely not on clause 18 at the moment.
Mr MacShane
I am a courteous, friendly fellow, Mr Evans, so I accept interventions even if they are points of order on the dark side of the moon.
Ian Paisley (North Antrim) (DUP)
I appreciate the right hon. Gentleman’s courtesy in giving way. He is right that putting something into a Bill and stating that we reaffirm sovereignty may not in itself affect or change the law, but it sends a signal to the very people who effect our law, for example the UKRep or the Council of Ministers, and all those people who just go with the flow in Europe, instead of standing up for the needs of Britain, which are effectively written off. Saying it therefore sends a positive and powerful signal.
Mr MacShane
With respect, the hon. Gentleman is not being fair to our officials, who undertake the arduous task of negotiating the treaties or agreements that affect Britain. If he travelled widely on the continent as I do—and I am sure that he does, too—he would find that in capital after capital, people think that the EU is, if not a British plot, an Anglo-Saxon hymn to free trade. Again and again, in Berlin, Madrid and Paris, I have had to defend the EU and the European Court of Justice, because the vast majority of rulings in the ECJ uphold open and free trade, and slap down the protectionist instincts of many EU member states.
Ian Paisley
I thank the right hon. Gentleman for almost inviting me back. Having worked in Brussels and in France for two years on issues to do with European law and how it affects our kingdom, I found that people went with the flow unless backbone was put into the UKRep’s office or into the Council of Ministers. We see it directly in fisheries policy, as fishermen in Northern Ireland, Wales and Scotland are prohibited from doing the job that they want to do—fishing our seas—week in, week out, because of bizarre regulations that flow from Europe.
Mr MacShane
As the hon. Gentleman spent time in France, he may have read in the French papers reports of blockade after blockade of French ports by French fishermen, outraged that the British interpretation in Brussels of the common fisheries policies prevented them from doing what they wanted to do. This is a collective decision that we have taken, and I suggest that Government Members are honest: if they do not like the European Union, they will not alter it one little bit by putting new forms of words into clause 18.
Our representatives in Brussels and in all the Ministries that negotiate every aspect of our relationship with the EU will not be impressed by the proposals. If hon. Members do not like it, they should pull out—that is the honest position to take. There is no magic form of words that can get us out of our obligations under this or any other treaty. If they do not want to be in any of the treaty-based organisations, all of which are part of international law and which can, if necessary be prayed in aid by our judges, they should say so. There is a completely separate problem concerning the erosion of parliamentary sovereignty in relation to our courts. We are writing into our unwritten constitution judicial power that exists in other countries. The Germans have a constitutional court, and its rulings guide and control part of Germany’s relationship with the EU. We do not have such a court, but perhaps we should have. We all know full well the strength and power of the Supreme Court in the American constitution. We have never allowed that; we have wanted everything to happen here in Parliament and have not moved to a form of written constitution. We could put into one an obligation to have referendums on new treaties, as the Irish constitutional court has and the Danish constitution does. All those things are possible.
The Government could simply have said, “There will be a referendum on each new EU treaty—period.” That would have been very powerful and given the sovereign people the right to decide what should or should not happen. It would have severely limited the chances of this or any future Government negotiating changes to a treaty that we judged to be in our interests.
It is no accident that any reference to a referendum on enlargement is excluded from the Bill, because the Government want Turkey to join the EU—and so do I. However, nobody in the House can possibly imagine that the question of whether 85 million Muslim ladies and gentlemen from Anatolia should have free access into this country would not receive a resounding “no” from the British people in a referendum.
So we go back to the clause, again and again. Nothing in the amendment strengthens the Government’s hand or puts backbone into the UKRep spine—straight and sturdy though I am sure it is.
Kelvin Hopkins
Time and again my right hon. Friend poses the alternative: accept what we have, or get out of the European Union. Yet now we are talking about reform and change—perhaps even withdrawing from the common fisheries policy. I shall leave that there.
I want to reinforce the point made by the hon. Member for North Antrim (Ian Paisley), who talked about officials. I suggest that the politicians, particularly the people at the Commission, pushed Britain to the brink. Recently, we came close to having a referendum that would certainly have produced a no vote. This signal that we are giving to the European Union will emphasise the point that Britain was pushed to the brink of a serious referendum, with a no vote being the certain outcome. This signal will make sure that they do not push us again.
Mr MacShane
There is this version of Britain contra mundum—the 26 member states all ganging up against us. We have allies and friends, and we win arguments. The European Union is seen around the world as a model for open trade. Lorries leave Portugal and arrive in Poland. A lorry cannot leave Mexico with its Corona beer and unload it in San Diego; it has to unload it on to protectionist lorries controlled by trade unions in the United States.
I put it gently to hon. Members that they should be careful before getting what they wish—the disaggregation of the European Union, with every country rejecting European Court of Justice decisions that they do not like. France believed that it was sovereign when it refused to accept a pound, or a kilo, of British beef, at the time when the whole world thought that the beef was contaminated. We could not export it to Australia, and Canada would not accept it. The Commonwealth would not have it. Hong Kong, our Crown colony, would not have it. But the European Union had to accept British beef because the European Court of Justice accepted our scientific arguments that the beef was fit for sale in the common European market.
Mr MacShane
Most of my speech has consisted of accepting interventions from right hon. and hon. Friends and colleagues. With your permission, Mr Evans, I shall now sit down. [Hon. Members: “Hurrah!”] I do not propose to put that to a referendum; it is my sovereign decision whether to stand or sit, but the amendments would not make one iota of difference to Britain’s relationship with the EU. The Bill itself will also make very little difference, although that, as has been pointed out, may be a point for a later day. I sincerely put it to hon. Members who do not like the EU to have the courage of their convictions and start persuading their party to be as Eurosceptic in government as it was in opposition. But a party of U-turns will probably find that difficult to achieve.