European Union Bill

James Clappison Excerpts

Wednesday 26th January 2011 Commons Chamber

[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.

--- Later in debate ---

[Mr Cash]

I am happy to seek to withdraw the amendment in the circumstances, without prejudice to my concerns about the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.



Clause 9

Approval required in connection with Title V of Part 3 of TFEU

[Mr Clappison]

I beg to move amendment 14, page 7, line 33, leave out from first ‘of’ to end of line 44 and insert

‘any existing or proposed measure under Title V of Part 3 of TFEU.’.

[The First Deputy Chairman]

With this it will be convenient to discuss the following:

Amendment 27, page 7, line 33, leave out from ‘measure’ to end of line 44 and insert

‘presented to the Council pursuant to Title V of Part 3 of TFEU, apart from a notification in relation to a measure that, at the time of the notification, would if adopted extend the powers of Eurojust to include the initiation of criminal investigations.’.

Amendment 99, page 7, leave out lines 34 to 36.

Amendment 98, page 7, leave out lines 37 to 44.

Amendment 47, page 7, line 44, at end insert—

‘(d) the provision of Article 83(2) of TFEU (harmonisation of criminal offences and sanctions) that permits the establishment by directive of minimum rules with regard to the definition of criminal offences and sanctions in an area subject to harmonisation measures by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question.’.

Amendment 28, page 8, line 1, at end insert—

‘(3A) Subject to subsection (3B), a Minister of the Crown may not vote in favour of or otherwise support a decision under Article 4 of the Schengen Protocol that would cause the United Kingdom to participate in further provisions of the Schengen acquis, unless a Minister of the Crown has given an oral statement to the Chamber of the House of Commons on Her Majesty’s Government’s intention to support the draft decision.

(3B) Subsection (3A) does not apply to a decision that falls under section 6(4)(k).

(3C) In subsection (3A), “the Schengen Protocol” has the same meaning as that given in section 6(5).’.

Amendment 29, page 8, line 1, at end insert—

‘(3D) A Minister of the Crown may not permit the United Kingdom’s participation in the final adoption of a measure building upon the Schengen acquis unless a Minister of the Crown has given an oral statement to the Chamber of the House of Commons on Her Majesty’s Government’s intention that the United Kingdom will participate in final adoption of the measure.’.

Amendment 30, page 8, line 3, leave out from ‘under’ to end of line 5 and insert

‘any of the following unless the draft decision has been approved by Act of Parliament—

(a) the provision of Article 77(3) of TFEU that permits the adoption of provisions concerning passports, identity cards, residence permits or any other such document;

(b) the provision of Article 81(3) of TFEU that permits the adoption of measures concerning family law with cross-border implications through a special legislative procedure;

(c) the provision of Article 87(3) of TFEU that permits the adoption of measures concerning operational co-operation between the authorities referred to in Article 87 of TFEU;

(d) the provision of Article 89 of TFEU on the operation of certain competent authorities of a member State in the territory of another member State.’.

Amendment 31, page 8, line 7, leave out from ‘measure’ to end of line 16 and insert

‘unless the notification in respect of the measure has been approved by Act of Parliament; but this provision shall not apply to a notification in relation to—

(a) a measure extending the powers of Eurojust to include the initiation of criminal investigations;

(b) a measure adopted under Article 81(3) of TFEU (family law) that determines those aspects of family law with cross-border implications that may be subject to the ordinary legislative procedure;

(c) a measure adopted under Article 82(2)(d) of TFEU (minimum rules on criminal procedure) that identifies a further specific aspect or aspects of criminal procedure to which directives adopted under the ordinary legislative procedure may relate;

(d) a measure adopted under Article 83(1) of TFEU (particularly serious crime with a cross-border dimension) that identifies a further area or areas of crime to which directives adopted under the ordinary legislative procedure may relate.’.

Amendment 34, page 8, line 16, at end add—

‘(7) A Minister of the Crown may not give a notification under Article 3 or 4 of the AFSJ Protocol that the United Kingdom wishes to take part in the adoption and application of a measure, or to accept a measure, to which this subsection applies unless—

(a) the notification is approved by Act of Parliament; and

(b) the referendum condition is met.

(8) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (7) as references to a notification.

(9) Subsection (7) applies to a measure that includes, at the time of notification by a Minister of the Crown under Article 3 or 4 of the AFSJ Protocol, the extension of the powers of Eurojust to include the initiation of criminal investigations.’.

Amendment 35, page 8, line 16, at end add—

‘(7) A Minister of the Crown may not give a notification under Article 4 of the AFSJ Protocol that the United Kingdom wishes to accept a measure to which this subsection applies unless—

(a) the notification is approved by Act of Parliament; and

(b) the referendum condition is met.

(8) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (7) as references to a notification.

(9) Subsection (7) applies to the following—

(a) a measure adopted under Article 81(3) of TFEU (family law) that determines those aspects of family law with cross-border implications that may be subject to the ordinary legislative procedure;

(b) a measure adopted under Article 82(2)(d) of TFEU (minimum rules on criminal procedure) that identifies a futher specific aspect or aspects of criminal procedure to which directives adopted under the ordinary legislative procedure may relate; and

(c) a measure adopted under Article 83(1) of TFEU (particularly serious crime with a cross-border dimension) that identifies a further area or areas of crime to which directives adopted under the ordinary legislative procedure may relate.’.

Amendment 39, page 8, line 16, at end add—

‘(7) In addition to the approval required in accordance with subsection (1) or (4), as the case may be, a Minister of the Crown may not give a notification under Article 3 or 4 of the AFSJ Protocol that the United Kingdom wishes to take part in the adoption and application of a measure, or to accept a measure, to which this subsection applies unless—

(a) the previous decision by virtue of which that measure is proposed or was established has been approved by Act of Parliament; and

(b) the referendum condition in relation to that previous decision has been met.

(8) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (7) as references to a previous decision.

(9) Subsection (7) applies to a measure proposed or established under Article 82(2) or 83(1) of TFEU by virtue of either—

(a) a previous decision, in which the United Kingdom does not participate, adopted under Article 82(2)(d) of TFEU that identifies a further specific aspect or aspects of criminal procedure to which directives adopted under the ordinary legislative procedure may relate;

(b) a previous decision, in which the United Kingdom does not participate, adopted under Article 83(1) of TFEU that identifies a further area or areas of crime to which directives adopted under the ordinary legislative procedure may relate.’.

New clause 5—Approval required in connection with Title V—

‘(1) A Minister of the Crown may not give a notification to which this subsection applies unless Parliamentary approval has been given in accordance with subsection (3).

(2) Subsection (1) applies in relation to a notification under Article 3 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 (the “AFSJ Protocol”) and Article 4 of the Protocol integrating the Schengen acquis that the United Kingdom wishes to take part in the adoption and application of any measure proposed under Title V.

(3) Parliamentary approval is given if—

(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to give notification in respect of a specified measure, and

(b) each House agrees to the motion without amendment.

(4) Despite any Parliamentary approval given for the purposes of subsection (1), a Minister may not vote in favour of or otherwise support a decision under a provision falling within Title V unless the draft decision is approved by Act of Parliament.

(5) A Minister of the Crown may not give a notification under Article 4 of the AFSJ Protocol that the United Kingdom wishes to accept a measure unless the notification in respect of the measure has been approved by Act of Parliament.’.

[Mr Clappison]

We come to a new subject area, that of freedom, security and justice, which used to be known as the judicial and home affairs pillar of the EU. As the clause stands, it would require parliamentary approval for a UK decision to opt in to certain provisions in the area of freedom, security and justice. At the moment, as I am sure the Committee knows, the UK enjoys an opt-out in that area. Were a decision to be taken to opt in to one of the matters specified in clause 9, parliamentary approval would therefore be needed.

Three such matters are specified in clause 9(2). Generally, they seem to cover further developments in the field that are not specifically set out in the freedom, security and justice chapter, which is chapter 5 of the treaty of Lisbon. I should say that that is a lengthy chapter containing many matters. I think I can see the Government’s thinking, which is to cover further developments in European law and new ideas in the field of family law, criminal procedure and serious crime. I agree with that thinking, as far as it goes, because it means that opt-ins on those matters will require parliamentary approval.

It should be said straight away that that is an improvement on the current situation, in which there is no requirement for approval of any of the important matters specified in the clause. There will therefore be additional protection, if one wants to look at it that way, and there will certainly be an additional role for the House, which will be required to give its approval before the UK can opt in.

My amendment 14 would take matters further in a logical way, by making any chapter 5 opt-in subject to the same parliamentary approval that is required for the three matters specified in the Bill.

[Ms Gisela Stuart]

Will the hon. Gentleman give way?

[Mr Clappison]

I certainly give way to the hon. Lady, who I know has an interest in these matters.

[Ms Stuart]

I am grateful to the hon. Gentleman for giving way and for tabling the amendment. Does he share my sadness that since May 2010, the Government have opted in to eight such provisions, including on such matters as the European investigation order, a new IT agency and a new crime and immigration database that will cost €113 million to set up, without the House having had any say in the decision?

[Mr Clappison]

The hon. Lady has updated my information, which goes only as far as 30 November, by which point there had been six opt-ins. There have therefore been another two since, and they are coming along all the time. We heard evidence in the European Scrutiny Committee that 30 or 40 such opt-ins were due to take place. The EU has an ambitious programme in that regard—that is not an expression of opinion; it has admitted it. I shall deal with that later.

The hon. Lady is absolutely right that some of the opt-ins are on important points, and I shall come to one or two of them that I experienced under the previous procedure. I should like to ask the Minister how many of the provisions that we have opted in to since the present Government came to power would have been covered by the procedures in clause 9. I fully accept that those procedures are an improvement on the current situation, but I should like to know how well they cover the ground.

As the hon. Lady said, some of the opt-ins have been significant. I wish to mention two in particular—they were debated a little yesterday, so I will not take the Committee over the same ground. They are the European investigation order, which received practically no scrutiny in the House and on which we had no opportunity for a vote, and the draft directive on the right to information, which was also very important. We had a little more scrutiny of it, but no real opportunity for a vote unless one was prepared to trigger a deferred Division.

Under successive Governments, the UK has been very careful and vigilant about permitting the EU to deal with the so-called area of freedom, security and justice, which is dealt with in clause 9. That goes back to pre-Maastricht days, when such matters were dealt with on the basis first of informal co-operation, and then of slightly more formal co-operation, between Home Affairs Ministers. They were not dealt with as part of the treaties or Community institutions—Home Affairs Ministers simply met to co-operate as such.

The Maastricht treaty put that on a more formal basis with what was described as the justice and home affairs pillar, which was the third pillar of the treaty. The first pillar was the old matters within the treaty—the single market, fisheries and agricultural policy, and all the rest of it—and the second was common foreign security policy.

One or two hon. Members who are in the Chamber now were in the House at the time of that treaty, and there was much debate on the justice and home affairs pillar. We were assured—I remember being given a solemn assurance by an authoritative figure in the Government of the time—that the treaty settled the problem as far as justice and home affairs were concerned, that we need not worry about home affairs coming within the purview of the Community method and Community institutions, and that they were being kept separate. The same applied to the common foreign security policy. The implication was that the pillars in the treaty would stand for ever, and that they were all the protection and assurance we needed. I am reluctant to say this but I have heard similar claims in respect of many other so-called safeguards since then, including in the course of this debate.

[Mr Cash]

Does the word “lie” crop up in that context?

[Mr Clappison]

I am afraid that I was credulous. We were perhaps willing to believe and wanted to believe what we were told. We knew that it was right for the UK not to come within such matters in the EU so that we did not gradually integrate into a superstate or a federal united states of Europe. Many are still worried about that and we wanted to avoid it, and we thought the pillars were the answer.

[Martin Horwood (Cheltenham) (LD)]

One additional safeguard that was introduced in the Lisbon treaty is emergency brake clauses, which can be initiated within six months. They need not even be initiated by the Executive; a national Parliament can do so. What is to prevent the European Scrutiny Committee from doing what it says on the can, scrutinising those things, and initiating a debate and the process that might engage the emergency brake clauses? They are a fundamental check and balance.

[Mr Clappison]

My humble amendment 14 proposes only that the House should have a vote on such matters. The hon. Gentleman implied yesterday that he agreed with that. I will turn in more detail to my amendment in a moment, but to dispose of his point, I have been told so many times in the House when we have made a concession to the EU, or agreed to further integration, the granting of competence or additional powers, or changes in its institutional arrangements, “Don’t worry. We are putting safeguards in place.” At the time of Maastricht, that meant the pillar structure. We were then told about subsidiarity, and we now have orange and yellow cards and emergency brakes, but no one has come anywhere near using those devices. We have had subsidiarity for 18 years, and the only time that it was used that I have been told about is in respect of the zoo directive.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I remember being told in the early 1990s that enlargement would have a decentralising effect on the EU, and that the increase in the number of net payers to the EU budget would create downward pressure on it. The history of our relationship with the EU is littered with complacent and wishful ministerial assertions on what will happen as a result of Government actions and agreements in the EU. My hon. Friend is absolutely right.

[Mr Clappison]

Notwithstanding all the assurances, such as the ones that we just heard from the hon. Member for Cheltenham (Martin Horwood), about the safeguards that are in place and despite all that we have been told over the years, under the treaty of Lisbon judicial and home affairs were planted fairly and squarely in the Community institutions and method, under what was the old first pillar, and subject to the ECJ and all the other EU institutions.

[Mr Cash]

The hon. Member for Cheltenham mentioned the European Scrutiny Committee, so may I say that the investigative order is still subject to scrutiny? He may be assured that we will follow every step, but we have no confidence in that part of the coalition that voted for all these arrangements under the Lisbon treaty—by that, I do not mean the Scrutiny Committee because I am talking about myself.

[Mr Clappison]

To be fair to the hon. Member for Cheltenham, he has an honourable and consistent approach to these matters which has a lot of appeal in the country. He is in favour of a more integrated Europe and of expanding the competences of the EU in co-operation with Europe. That is an honourable point of view to take. I take a slightly different view, but I respect him for his views. However, I would point out to him that of all the safeguards that have been mentioned, the one that seems to have been most satisfactory—it is possibly the only one—is the opt-out. When one surveys the history of this country’s participation in the EU, the areas in which people take most satisfaction are those from which we opted out, foremost among which is the single European currency. Some people say that that was one of the greatest achievements of our European policy. All the things that we have gone along with are the subject of great dissatisfaction.

[Kelvin Hopkins (Luton North) (Lab)]

I apologise for missing the start of the hon. Gentleman’s speech. I agree with what he says about opt-outs. Would it not be to the advantage of the British people if we could also opt out of, for example, the common fisheries policy?

[Mr Clappison]

My constituency does not have a fishing port, but my understanding is that there are no demonstrations in favour of the CFP in fishing ports.

[Ms Gisela Stuart]

I confirm that people in Edgbaston also do not talk much about fishing policy.

The reason why the hon. Gentleman’s amendment is so important is that it goes to the heart of the contradiction. We are told that the EU is a political construct in which the Union has only those powers that member states have decided to give it, but when we raise questions we are told that there are safeguards, which actually shows that that is not quite how it works. Proportionality and subsidiarity have not worked—only the opt-out contains the powers, and that is why it is so important.

[Mr Clappison]

That is why the opt-out is so very important, and that point brings me to the subject of this amendment.

[Mr David]

The hon. Member for Stone (Mr Cash) made an indirect reference to the opt-in by the Government on the European investigation order. The Government provided the reason—some might that think that it was an excuse—but it could not be scrutinised by the Scrutiny Committee here or in the other place because of the general election. If the political will had been there, would it not have been possible to have at least informal consultation with leading members of the outgoing Committee, so that the Government had an indication of informed Back-Bench opinion on the issue?

[Mr Clappison]

During the period that the hon. Gentleman’s party was in office, we tried informal consultations, formal consultations and many other forms of consultation, and we did not get very far. To be fair to Ministers, this clause is a step forward and improves on the position that they inherited. I am trying to go just a little further than that, because this is such an important issue. I seem to remember that we were told that the opt-out on justice, freedom and security was one of the differences between the defunct constitutional treaty and the treaty of Lisbon—that the UK had an opt-out. That was given as one reason why we did not require a referendum.

I also seem to recollect—I will be corrected if I am wrong—that justice and home affairs were described as one of the then Government’s “red lines” when they were negotiating the treaty of Lisbon. The former Prime Minister, Tony Blair, said that he was not prepared to cross those red lines. The opt-out was one of those red lines, so if the present Government opt in to those areas, we will have crossed those red lines. That illustrates how important the issue is. However, I give credit to my right hon. and hon. Friends on the Front Bench, because they are taking it very seriously indeed. They have made a lot of progress, but we are not talking about something over which, like it or not, the European Union has competence, because it does not. That is the important point.

We have opted out. We can sit back. We do not need to do anything as far as those matters are concerned. We are not in a position, which we would be in if we had not opted out—that is, if we had ordinary membership and were involved in ordinary participation—where we could be outvoted on qualified majority voting; nor, if something was subject to unanimity, would we face being in the possibly invidious position of being the only ones objecting to it, thereby holding up all the other members and preventing them from doing something that they wanted to do. Those considerations do not arise. We have opted out of those matters, and there is no pressure on us to opt in to them. Opting in would be a voluntary decision on our part, and would mean choosing to submit ourselves to the institutions of the European Union—the Community method and the jurisdiction of the European Court—and to abnegate self-government for this country on those matters.

[Martin Horwood]

rose—

[Mr Clappison]

I will give way to the hon. Gentleman, but I want to make a bit of progress.

[Martin Horwood]

The hon. Gentleman is being extremely generous in giving way. He is extolling the virtue of opt-outs, as opposed to using emergency brake clauses, which are designed to provide a safeguard against the opt-in procedure. However, to put the boot on the other foot, has he or any of his hon. Friends ever attempted to initiate any of the brake clauses, which, as I have said, is in the hands of national Parliaments, not Governments? If not, what is his real complaint?

[Mr Clappison]

Why should we want to opt in to something and then apply the emergency brake? I do not understand the thinking on that. If we opted in, that would presumably be because we saw some virtue in doing so and would not want immediately to put our foot on the brake. However, the hon. Gentleman has an honourable position on this issue. I have a completely different view: I want our criminal and civil law to be made in this country, I want the people of this country to exercise self-government over themselves, and I want them to be able to change Governments by exercising their votes. They would not be able to do any of that if we had opted in, because then we would be submitting ourselves voluntarily to European government, as opposed to democratic self-government in this country. There is therefore a fundamental difference between us.

It is significant if we decide to opt in because once we have done so, we could become subject to amendments on the same matters. Although we would have an opt-in on those as well, we would none the less be under a great deal of pressure, facing the prospect of financial penalties, were we not to opt in to any proposals that came along. We took a lot of evidence in the European Scrutiny Committee on that issue from the former Foreign Secretary, particularly about the unsatisfactory arrangements that were made for new opt-ins, as well as the existing opt-ins to the former judicial and home affairs pillar, where we face financial penalties. One cannot be said to be exercising a free choice if one faces a financial penalty for not going along with something.

More importantly, we are also submitting ourselves to the European Court of Justice. In debates on previous groups of amendments we heard some good examples of what can happen with competence creep under the old article 308. However, competence creep can also come about, as it has done, through the European Court of Justice exercising its jurisdiction. We are voluntarily submitting ourselves to that jurisdiction, and that does not apply only to cross-border matters, which is the pretence. Rather, we are submitting to the European Court of Justice’s jurisdiction in every element of criminal law and civil law, and in all our courts across the country, if we opt in to matters that govern those elements.

We sometimes complain about the lack of transparency in EU decision making, but to be fair to the European Union there is no lack of transparency about its ambitions. I believe that one of its ambitions is to build an area of freedom, security and justice; I disagree with the hon. Member for Cheltenham on that. In President Barroso’s state of the Union address last autumn—he has one as well as President Obama now—he said that it was the European Union’s third top priority to build such an area. That is also in the treaty of Lisbon. We can expect to see many proposals on European contract law and many other issues in the coming year or so, and we shall have to decide whether to opt in to them or not. The proposals that my hon. Friend the Member for Stone (Mr Cash) and others have put in place would be of great assistance when those matters come before the House for consideration.

I commend the interest and commitment of my right hon. and hon. Friends on the Front Bench on this issue. They have recognised that it is a problem, and set out to deal with it in a much better way than it has ever been dealt with before. We now have clause 9. In addition, a written ministerial statement was made last week. It did not go quite as far as I would have wished, but I have a lot of wishes in that regard. It represented a significant improvement, however, and we have been promised a substantive vote when there is interest in these substantial matters in the House, to enable hon. Members to express their approval. There is still a question of who decides which matters are of great interest, but this is at least a step forward.

I hope that time will be found and that we will have those votes, because it is very much in the interest of the Government and the House that they take place. I urge my right hon. and hon. Friends not to exercise the legislative override but to permit a full debate on these matters on a substantive motion, preferably on the Floor of the House, with a vote at the end of it. They have promised to discuss these matters with the European Scrutiny Committee and its Chairman, my hon. Friend the Member for Stone—I know that he stands ready to help in those discussions—and to facilitate debates and votes taking place in the House.

I am sure that constructive discussions will take place on how this can be arranged, and on how we can improve our scrutiny of these matters. I know that Ministers take their responsibilities very seriously, and I hope that they will take from this the message that, while we regard all scrutiny as important, it is particularly important in regard to the opt-ins that would bring us within the purview of European Union institutions for the first time. It is especially important that we should have debates and votes on them, and that Ministers should listen to the messages that they receive. They should consult members of the European Scrutiny Committee and listen to what they are told, and we should proceed on that basis.

I would prefer us not to opt in to any of these things. I would prefer us to exercise the opt-out, but we are where we are. If we are going to have the possibility of opt-ins, it is preferable that we have a proper debate and a proper vote on the Floor of the House of Commons, rather than some of the procedures that we have gone through in the past which, despite the diligence and hard work of the European Scrutiny Committee, did not really amount to what our constituents would regard as proper scrutiny, because of the restrictions involved.

I am relying on my right hon. and hon. Friends on the Front Bench to make good their words, as I am sure that they will wish to do, about further improvements to the parliamentary scrutiny of these matters. I shall not press my amendment to a vote, but I look forward to discussions taking place so that we can build on the improved system that is being put in place to create a much better system of parliamentary scrutiny.

--- Later in debate ---

[Chris Heaton-Harris]

That is possibly the case. I do not wish to give a definite answer, because I am not the expert on this matter and I was just raising it for the Committee in general debate. I am not sure that what the hon. Gentleman describes is the case, but I would hate to say that he is wrong because, as my hon. Friend the Member for Hertsmere said, although we might have different views, the factual statements that the hon. Member for Cheltenham (Martin Horwood) has made have invariably been correct.

[Mr Clappison]

The opt-in arrangements are found in the “Protocol on the position of the UK and Ireland in respect of the area of freedom, security and justice”. This is in the Lisbon treaty itself and as far as those matters are concerned we have to opt in.

[Chris Heaton-Harris]

I am looking forward to the Minister clarifying that for us all. I was discussing the questions about the written ministerial statement where we need things fleshed out. This Government commitment does not require the Government to come before Parliament to get approval for each of their decisions to opt in, which is what the amendments would entail. Although the current Government might give this commitment, it may not apply in the future, whereas a requirement in statute, rather than something in a written ministerial statement, would be expected to withstand the passage of time much better. There are a number of omissions from the written ministerial statement. It does not deal with the timing of the process and whether new proposals are acted on in a different way, and the arrangements for opting into things that have already been adopted by our EU partners causes me concern, because I am not sure whether this process catches that.

Those are all matters of conjecture and question, and they are ways in which we can altogether improve the scrutiny of justice and home affairs opt-ins in the future. I see the hon. Member for Caerphilly (Mr David) nodding his head in agreement and I believe there is massive cross-party and cross-Parliament interest in getting this process right for the future. I do not see the issue as politically contentious.

I note the massive steps forward that have been made with this Bill and in the written ministerial statement, so I shall not press my amendments to a vote either. I thank the Minister for coming so far so fast and look forward to working with him on this matter in the future.

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I am concerned that we might congratulate the Government a little too much on their restraint in giving approval by way of Act of Parliament or some motion, which, as my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) said, really amounts to no more than a resolution. After getting past what I call the pas de deux of the opt-in, we then move downstream into the question of whether the Whips would allow the vote to go the wrong way. We have already had the example of the opt-in for the investigative order. We know from my hon. Friend the Member for Hertsmere that there are 40 such opt-ins on the way. This is the Europeanisation of our criminal system—

[Mr Clappison]

And civil system.

[Mr Cash]

Yes, and civil. Let us not get carried away by a few bits of paper and a few words in a Bill. They say that there will be restraint by way of approvals given by the House, but we know the realities. In relation to the opt-in on the investigative order—I think it was on 15 June, shortly after the general election—it can fairly be said that the Minister believed that she had to make that decision because, I think I am right in saying, there was a three-month period within which the decision had to be made. Perhaps there was some justification for the fact that she had to make the decision, but why did she make the decision to opt in? Why did she not make the decision not to opt in? That is my concern.

I plead with hon. Members not to be taken in by the effusions of reservation that emerge in letters, statements and the Bill. Right at the heart of this is the real question of whether we will end up with more Europeanisation of these matters, and the answer, emphatically, is yes.

[Mr Cash]

I am so glad to hear that. I was not precisely aware of that part of the judgment, but my hon. Friend has made an important and helpful comment. The argument is right, and it is by dint of the most awful experience in Germany that it has come to these conclusions over an extended period since 1945. It is vigilant about these matters because it does not want ever again to find itself in circumstances, by virtue of a lack of democracy, when Hitler ran Germany. I have an absolute belief in the democratic instincts and principles of the British people, which have been born out of fighting not only that very Germany, but previous wars, right the way back to at least the 17th century. We have built up a democratic system in which we decide what the legislation should be, and we give it careful consideration. We need some parliamentary reform. We are being given the impression that in relation to these matters we will be able to retain our criminal system, but unfortunately, because of the Whip system and the whole direction of Europeanisation, that will be removed by what will happen in practice. As helpful as all these procedures are in indicating the direction in which they might like to go in certain circumstances, I fear that we will have many opt-ins and that, in practice, the proposed procedures will be applied and the Whips will ensure that the measures go through.

I will give the European investigation order as an example. It is still subject to European scrutiny and there will be a debate on it—I cannot remember when—despite the fact that it was decided on 15 June last year. That is because the European Scrutiny Committee had not been set up by that time, but the rules still applied to that order. There will be a debate on that matter, but when it is debated, which in effect is the same kind of thing that the Minister refers to about parliamentary approval, up to a point, there will no doubt be a take-note motion—I cannot remember the precise motion— before the European Committee. The reality is that not once in the 26 years I have watched these matters has a decision of a European Committee not to take note, following a vote that went against a Minister, not been reversed on the Floor of the House by the use of the Whips. Why should I be confident that—

[Mr Clappison]

My hon. Friend has made some powerful points that are entirely borne out by my much lesser experience of the European scrutiny system. In the case of the European right to information order, which is another opt-in, the most we can do is vote against it in the relevant European Committee so that it comes back for a vote on the Floor of the House, but that is merely a deferred Division on whether to take note of the document. We do not have the opportunity to say no to the opt-in. Is that his experience? We must have that option in the future if the Minister is to make good the promise, made in the statement of 20 January, that we will have the opportunity in a vote on the Floor of the House to say no to an opt-in.

[Mr Cash]

That is such a good example. In fact, I was in that debate with my hon. Friend—I was unable to vote in the Committee but took part in the proceedings. The reality is that that is how the system works in practice. This debate is about criminal law, but it is the same for everything else in the Bill. All the treaties, including all the laws, the entire encyclopaedia, all the work that is done in all the Departments and cross-departmental work—the whole country—are being run by a process of continuous European integration. The question is whether it is good for us or not. It is as simple as that, and that is a matter for us to judge.

However, because of the way policy is made, and with the help of the coalition, we are told that the Government think it is good for us. I do not agree, and I think that there are many other Members, and certainly many more people outside, who agree with what I have just said. Although the debates have been conducted with great courtesy and a great deal of substance on both sides of the argument, the real question is about what has happened. The short answer is that the Bill will go through and that we will put up a fight again in another motion under the arrangements proposed in clause 9, but in practice the process I have described will continue to happen.

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[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.

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I hope that I have been able to respond to the concerns raised by hon. Members on both sides of the House. In the interests of moving on to the next group of amendments, I shall conclude my remarks.

[Mr Clappison]

As I said earlier, I do not intend to press the amendment to a vote. I want to make progress and for that reason, and the other reasons I have mentioned, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 33, page 8, line 16, at end add—

‘(7) A Minister of the Crown may not give a notification under Article 10(5) of Protocol (No. 36) on Transitional Provisions annexed to TEU and TFEU that the United Kingdom wishes to participate in an act that has ceased to apply to it pursuant to Article 10(4) of that Protocol, where the AFSJ Protocol would apply to the procedure for dealing with the notification, unless a Minister of the Crown has given an oral statement to the Chamber of the House of Commons on Her Majesty’s Government’s intention to give the notification.’.—(Chris Heaton-Harris.)

[The Chairman of Ways and Means (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Amendment 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).’.

Amendment 83, page 8, line 16, at end add—

‘(6C) 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 the decision is approved by Act of Parliament.’.

Amendment 84, page 8, line 16, at end add—

‘(6D) A Minister of the Crown may not give a notification under Article 10(5) of Protocol (No 36) on Transitional Provisions annexed to TEU and TFEU that the United Kingdom wishes to participate in an Act that has ceased to apply to it pursuant to Article 10(4) of that Protocol, unless the notification in respect of the Act has been approved by Act of Parliament.’.

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[Mr Jenkin]

The hon. Gentleman is right. The Bill is completely inconsistent. Relatively tiny matters covered by the Bill and caught by its provisions will have to come to Parliament and may even have to be the subject of a referendum. But this incredibly significant change to our legal system that is taking place now is exempted from the Bill. It is totally illogical. If there is anything that makes a complete nonsense of the Bill, it is this total exclusion of the 2014 decision.

[Mr Clappison]

My hon. Friend is making an excellent speech and some telling points. Does he agree that the EU is being honest about what it wants to do? It wants, en bloc, to create an area of freedom, security and justice, and to have EU authority over that whole bloc. It is not a question of our Government looking judiciously at the odd measure here or there and whether things will be made better or not. We are confronted with an attempt by the EU to carve out jurisdiction across the piece in the area of freedom, security and justice. That is its stated ambition.