European Union Bill

James Clappison Excerpts

Tuesday 8th March 2011 Commons Chamber

[Mr James Clappison (Hertsmere) (Con)]

I beg to move, That the clause be read a Second time. As another Member who willingly put his name to the new clause, I am delighted to do so.

Members who are familiar with the Second Reading debate and the proceedings in Committee will know that clause 5 is about a statement that must be laid before the House within two months of the conclusion of any of the treaty changes covered by the Bill, as part of the process whereby a referendum takes place. It covers treaty changes in both the ordinary revision procedure—the one with which we are all familiar, involving a convention followed by the full panoply of treaty change and agreement between the nations—and the simplified revision procedure that was introduced by article 48(6) of the treaty of Lisbon, which makes it much easier for the parties to the European Union to bring about treaty change. Under that article, all they need to do is reach an agreement within the Council and then put it to the member states, and unanimity is required for that. It is generally regarded as a measure that speeds up treaty change.

New clause 1 would require much more information to be included in the statement, or to be provided with it. When my friend the hon. Member for Birmingham, Edgbaston (Ms Stuart) drafted the new clause, she may well have had in mind what took place during this House’s proceedings on the treaty of Lisbon, and I certainly had that in mind when I signed it. The then Government advocated all the measures in the treaty of Lisbon to the House—and to the country—but it was revealed during the debate that at the Convention that led to the drafting of the constitutional treaty which later became the Lisbon treaty, they had opposed a number of key proposals.

[Mr William Cash (Stone) (Con)]

Is my hon. Friend also conscious of the fact that the Conservative party was, for the first time since 1972, united on that issue, and that it voted consistently against every provision that was worth voting against in the Lisbon treaty, yet subsequently accepted it?

[Mr Clappison]

Yes—and not only that, because my hon. Friend is being characteristically modest, as some of the warnings about the consequences that would flow from the treaty of Lisbon have proved right in the short time that has elapsed since its introduction. I am thinking in particular of the warnings that were given about what I regard as the unfortunate influence of the European External Action Service and the EU’s new Foreign Minister, Baroness Ashton, which has not entirely served the interests of this country.

[Mr John Redwood (Wokingham) (Con)]

The new clause is excellent. I like the idea that Ministers would have to report that they tried to get an improvement but they lost. Is it also proposed that some of the arguments should be made available, because it would be much more interesting if we knew how badly they had lost?

[Mr Clappison]

My right hon. Friend makes an excellent point. Too often decisions are made behind closed doors, certainly in the Council. They are made in a remote and unaccountable way, and members of the public in this country simply do not have the information that they should have to be able to evaluate the decisions taken in their name.

During our debates on the Lisbon treaty, it was striking that time after time we had to remind members of the then Government of what they had said in the Convention about the measures that they were now putting before the House. I cannot remember whether they had opposed the establishment of the EU External Action Service and the EU Foreign Minister—I would not have blamed them if they had—but it emerged on a number of occasions in the debates in the House that Ministers had previously opposed what they were now proposing. That came to light only through the assiduous work of the then Conservative Front-Bench Members, and I pay tribute to them, as well as to colleagues such as my hon. Friend the Member for Stone (Mr Cash) and my right hon. Friend the Member for Wokingham (Mr Redwood).

The new clause would remedy this problem, as the fullest possible information would be placed before the House, with the statement, so we would know exactly what had taken place, and whether the Government really agreed with what was being proposed or whether they had lost the arguments and been outvoted. In short, we would know whether we were being called upon to do something with which our democratically elected Government did not agree.

[Martin Horwood (Cheltenham) (LD)]

rose—

[Mr Clappison]

I give way to the Liberal Democrat Member who, of course, supported the Lisbon treaty on many occasions during its passage through this House.

[Martin Horwood]

Absolutely—and a referendum on it.

The hon. Gentleman is speaking as if the new clause related to the situation after the negotiations have been completed, but what it actually says is

“during negotiation of the treaty or decision.”

I attended a negotiating skills course some years ago, and I was always advised not to give away my negotiating position during the course of the negotiation. Would not the new clause destroy the British Government’s negotiating position? Is that its intention?

[Mr Clappison]

No, because the British Government are representing the British people and the British people should know what is being negotiated on their behalf. This is not a private company trying to make a profit; it is democratically elected Ministers acting on behalf of the people. May I slightly correct the hon. Gentleman? I do not know whether he was in the House at the time, but I certainly recall this, because I was sitting directly behind the Liberal Democrats. That party supported an in/out referendum on the European Union, but it did not support a referendum on the Lisbon treaty itself. I remember that debate taking place. He will correct me if I am wrong, but I recall that although the Liberal Democrats got very agitated about having an in/out referendum, they were not exactly full-hearted in supporting a referendum on the Lisbon treaty.

[Martin Horwood]

rose—

[Mr Clappison]

I will give way again to the hon. Gentleman, who has a very honourable record of supporting further European integration.

[Martin Horwood]

I will correct the hon. Gentleman, as he is wrong. I voted for both an in/out referendum and a referendum on the Lisbon treaty.

[Mr Clappison]

I stand corrected. I do not know whether the hon. Gentleman’s colleagues voted both for and against an in/out referendum, or whether they voted both for and against having a referendum on the Lisbon treaty. I do remember, because it would be hard to forget this, that one of his colleagues was excluded from the Chamber because he got into such a terrible temper about not being able to have an in/out referendum. I am not sure how many of his colleagues supported the amendment that we dealt with several evenings ago proposing an in/out referendum; the Hansard record will doubtless show the number.

The fullest possible information should be available to this House and to the British people so that we know what is really going on. One of the fundamental problems of the European Union is the feeling of disillusionment that people have about its lack of accountability. We do not know what is taking place and being done in our name. The EU is remote and decisions are taken behind closed doors. Some arrangements are entered into beforehand in an entirely private way, with decisions not even being taken at the meetings themselves, but often being taken behind closed doors. We need more information about such matters.

[Mr Cash]

Even as we speak, a gigantic deal is being done in Europe. It is called the “competitiveness package”. It took me an urgent question—thanks to you, Mr Speaker—to elicit the truth about what was going on in European economic governance. What my hon. Friend says is absolutely right: a tradition of deceit lies behind all this, and it goes right across the whole of Europe.

[Mr Clappison]

I am grateful to my hon. Friend, because he has done the House a service. It was entirely due to him that the contents of the Van Rompuy report, as they affected this country, which they clearly did, were revealed to this House. We look forward to having a fuller debate on those in due course. We want a fuller debate on many other issues, but when a treaty change comes before this House and is the subject of a statement under clause 5 we need to have all the information. We need to have everything out in the open so that we can have a full and well-informed debate.

[Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)]

By way of explanation, Mr Speaker, I think I have fallen victim to my usual habit of reading newspapers from back to front. I apologise for not having been here at the start of the debate, and I thank the hon. Member for Hertsmere (Mr Clappison) for introducing the new clause.

I need to explain the antecedents of the thinking behind the new clause. When I was a Minister I attended meetings of the Council of Ministers, and I knew that it was perfectly impossible for any national Parliament to find out even whether their Minister was there to vote, let alone whether they had made any particular representations. I am sure that I am not the only Minister—people on both sides of the House must have done this—who performed the most amazing U-turns on policy when doing a Council of Ministers stint. I am talking about little notes along the lines of, “The United Kingdom no longer supports amendment 58”—and that was all that was ever said about the matter. There is nothing wrong with that; we do that in politics. But in this House, if the Government perform a U-turn, someone at some stage has to stand at that Dispatch Box and say, “We’ve changed our minds.” They have to give reasons for doing so, and on occasions those are perfectly acceptable. This is the one thing that is completely missing in our dealings with the European Union.

Post-Lisbon, we have made some advances in the information provided for the European Parliament. Although I welcome those provisions, I would challenge even hon. Members to close their eyes and tell me, hand on heart, that they can name all the MEPs who represent their region. I bet that they could not do that; I could not name them all myself. [Interruption.] My right hon. Friend the Member for Rotherham (Mr MacShane) says that he does not even know all the MPs for Birmingham. Fortunately, I could tell him all their names, even in alphabetical order.

--- Later in debate ---

[Mr Shepherd]

I do not accept the argument, because there are very few international agreements that apply in a directly legislative way in this country. Therefore, on a great range of matters we have to put things through this House; therefore, they are governed by the processes of this House. Normally they are nodded through, that is true. None the less, there is accountability to this House, and there are the Ponsonby rules and all that—if they amount to as much as I would like them to amount to. I would therefore urge the House to support the view that we should know exactly what is happening. I do not want to hear “Game, set and match”; I want to hear where we stand in these matters. I want our Front Bench to be quite candid about this matter, which lies at the heart of this European Union Bill, as amended. I was sent a press release, or whatever it was, to advise me as to the merits of the Bill. Well, I will make my own judgment on that, as will other Members who do not follow the Whip as closely as I do. I hope that we will have enough belief in ourselves—because this applies to us, to the British Government—to introduce a proper process in which Ministers will be candid and bring forth exactly what happens in these meetings.

The words

“including all amendments sponsored by Ministers and other member states during negotiation of the treaty or decision”

particularly excite me. Clearly that proposal would not apply at the time of the meetings but to afterwards, when we would come to understand the character of those who are making the law.

[Mr Clappison]

Would it not be very strange indeed if Ministers were to try to keep secret the amendments that they had tabled during such negotiations? Is not this something that people should subsequently know?

[Mr Shepherd]

I believe so, because there is a matter of the most profound trust involved. When Ministers speak at the Dispatch Box, we trust that they are telling the truth. That is one of the rules and we must hold them to it—[Interruption.] No, that is a convention of the House. Ministers have fallen when they have lied at the Dispatch Box.

--- Later in debate ---

The very things that my hon. Friend the Member for Hertsmere denounced—decisions taken in secret and informal meetings arranged to fix a compromise in advance of a formal discussion—would be made more likely and not less by new clause 1. For those reasons, I cannot support it.

[Mr Clappison]

I am grateful to my right hon. Friend the Minister for the care and attention that he has taken in answering this debate and for the manner in which he has done so. I am sure that it has been of great assistance to the House, and I will now be going to the Library to seek out a copy of the European Union access to documents regulations—I certainly would not want to fall foul of them, given what we have been told this afternoon.

My right hon. Friend has approached the debate in the spirit of the new clause. I am sure that the hon. Member for Birmingham, Edgbaston (Ms Stuart), in drafting the new clause, did not think that it was the finished article. It was a plea for greater transparency, and I hope that it has been taken as such. Despite possible problems with, for example, the phrase “relevant documentation”, what that might include, and what implications might flow from it, I hope at least that on the question of amendments proposed by a Government during treaty negotiations and treaty changes—that is what new clause 1 deals with—whether through the ordinary procedure or the new simplified revision procedure, members of the public and the House will be told what amendments are being, and have been, proposed by the Government, so that we, and members of the public, can judge, in due course, the strength of the Government’s position on what they ultimately recommend. We should be told whether a Government have been consistent in the amendments that they proposed and in what they subsequently recommend.

I will give one example. I was struggling earlier to think of one, although I know that there are a lot of them. During negotiations on the Lisbon treaty, Ministers in the then Government came to the House and advocated a certain clause or course of action, but it was discovered that during the negotiations on the Convention they had advocated exactly the opposite. One prime example was the creation of the European “foreign ministry” itself—the European External Action Service. During the debate, I have helpfully been told by the House of Commons Library that the then

“government’s amendments in the Convention to articles 1-27, III-197.1 describe the term ‘Foreign Minister’ as ‘unacceptable’ arguing that ‘he/she should have no ministry’. The government preferred the term ‘EU external representative’.”

Well we have our external representative—or rather, our High Representative—but perhaps that phrase conceals the fact that she is in reality a Foreign Minister, and the office was originally intend as such. We also have a European “foreign ministry” in the form of the EEAS, even though the then Government did not want it. They then had to come before the House, having apparently lost on that amendment, and argue from the Dispatch Box in favour of the creation of an external action service. The Minister will well remember, as I do, that on that occasion, Conservative Members opposed its creation. In the light of developments since, and what the public have come to learn and think about the EEAS and its conduct, I am not sure that our arguments against it have been entirely disproved. But there we are. That is one example.

The new clause was a plea for transparency. However, I know that there are important matters still to come before the House, and I do not want to delay them by pressing the new clause to a vote. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 2

Parliament Act 1911 in relation to sections 1 to 7

‘(1) The Parliament Act 1911 is amended as follows.

(2) In section 2(1), after “five years” there is inserted “or a Bill amending or repealing sections 1 to 7 of the European Union Act 2011”.’.—(Jacob Rees-Mogg.)

Brought up, and read the First time.

[Jacob Rees-Mogg]

I beg to move, That the clause be read a Second time.

The purpose of new clause 2 is to exempt most of the Bill from the functioning of the Parliament Act 1911. That would mean that were a Government to attempt to repeal it, they would have to do so with the consent of the House of Lords, without being able to re-present it a year later and get it into law regardless. The new clause would give the same protection to the rights of the British people to vote in a referendum on European matters as exists concerning the length of a Parliament.

It is one of the ironies of our constitutional system that the unelected Chamber has since 1911 been the final guardian of the democratic rights of the British people. Since 1911, it has been impossible to lengthen a Parliament without the willing consent of the House of Lords. It is the one part of the Parliament Act that the House of Commons cannot simply override. The last extension of a Parliament came, I think, in 1944, as a final extension—until the war had been completed—of the wartime Parliament. That principle clearly applies to referendum Bills, which relate to a right of the British people to exercise their democratic choice that should not be taken away from them lightly, and should be as protected as anything within the constitution can be.

It is worth mentioning—I hope that the Minister will be interested in this point—that one criticism has been made of the Bill by people who otherwise are sympathetic to it. It is that an incoming Government who wanted to push through the euro, or whatever, could simply repeal this legislation and go ahead with what they wanted to do anyway. Quite rightly, no Act of a Parliament can bind its successors, but the Bill contains no protection at all against a Government who do not want to follow it. Given that the whole purpose of the Bill is to protect the rights of the British people from further Europeanisation, it would be extremely sensible to exempt it from the Parliament Act in order to strengthen it. That would remove the one criticism made by people who are otherwise well disposed to the Bill. It would make it a stronger Bill, and one more settled in our constitutional situation. I think that many of us would like to see that.

An important constitutional development is noted in volume 1 of the House of Commons European Scrutiny Committee’s 10th report. It is a constitutional development that should concern the House, and on which the House should use its powers to set its seal, as it sees fit. It is essentially the Lord Justice Laws doctrine that came out of the metric martyrs case. He said:

“In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental…And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” and “constitutional” statutes. The two categories must be distinguished on a principled basis.”

Lord Justice Laws went on to set out his definition of a constitutional statute as opposed to an ordinary statute. In the Bills we pass, however, there is no such difference. It is a distinction thought up by the courts, particularly to exempt the European Communities Act 1972 from implied repeal. As a matter of the most urgent constitutional principle, if there are to be two types of Act, it ought to be this House and the House of Lords who decide and determine that, not the judges. The judges are there to determine what we have said and rule on it, not to say that a new type—a whole new category—of law has been created. It seems to me that one of the ways the House could get a round that is to make it clear when we think that a Bill requires particular and special protection. Fortunately—because, as some hon. Members may know, I am a great believer in tradition—we have a precedent for that in the Parliament Act, which allows the House of Lords to be overruled on everything, with the exception of a removal of a democratic right. The parallel with the Bill is exact: it is a protection dealing with a constitutional situation developed by the Lord Justice Laws doctrine.

--- Later in debate ---

[Mr Clappison]

I congratulate my right hon. Friend the Foreign Secretary on his speech this evening, and on his robust reaffirmation of parliamentary sovereignty and national democracy, which was very welcome to those of us on this side of the House, at least. I also thank him for the interest that he has taken in parliamentary scrutiny of opt-in decisions in the important areas of freedom, security and justice, and the attempt by the European Union to seize for itself the power to fashion our criminal law in this country.

I congratulate my right hon. Friend the Minister for Europe on the way in which he has taken the trouble to respond to all these debates. He has done so patiently and thoroughly, and shown great expertise. He has had a considerable amount of research behind him, and I think that the whole House is grateful to him for the exemplary way in which he has taken the Bill through the Committee of the whole House.

I also congratulate the hon. Members for Wolverhampton North East (Emma Reynolds) and for Caerphilly (Mr David) on their contributions to these debates, which have been very good humoured, and very effective in their own way. I congratulate, too, the shadow Foreign Secretary, the right hon. Member for Paisley and Renfrewshire South (Mr Alexander), on his speech this evening and for the foresight that he apparently possesses. He seems to have an ability to see into the future. Little did we know when we began our Second Reading debate on 7 December—or before that, when we promised these measures in our manifesto—that the right hon. Gentleman would have foreseen the problems in the middle east before anyone else did. He also deserves to win some sort of prize for stringing together unrelated issues in order to exploit them for maximum political advantage. That bodes well for his career in opposition, if not for the credibility of his policies or particularly for the credibility of his party’s position on Europe.

Let me sound a note of caution to my hon. Friends. On one or two occasions and again this evening, some have suggested that the Bill and the referendum locks will stop all transfer of power to Europe. That is not the case, so we need to continue to be vigilant about the transfers of power to Europe that can take place notwithstanding this Bill.

The Bill requires a referendum for a transfer of competence to Europe and in certain other specified instances, as well as for a movement from unanimity to qualified majority voting. However, my right hon. and hon. Friends will be aware that in a succession of treaties from Britain’s first membership of Europe onwards—including particularly the important treaties of Maastricht and Lisbon—we have already transferred a whole list of competences to the EU. That includes not just exclusive competences where only the EU can act, but shared competences where if the EU chooses to act it can extinguish national competence in the same area and in supported competences. As I say, the list is very long and it is backed by the jurisdiction of the European Court of Justice, which has shown its ingenuity in extending that jurisdiction, and by the appetite for power of the European Commission.

Each time the EU chooses to act, to exercise power in respect of one of those many areas of important competences that it already possesses and to make policy, it extinguishes our ability to make policy at a national level in this Parliament. Each time it chooses to make law, to bring in a regulation or to put in place a directive for states to interpret, it is putting in place a law that takes precedence over our national law—and the European Court of Justice will see to it that in any case of conflict, European law takes precedence over our national law.

Notwithstanding the Bill’s provisions, there is considerable scope for the European Union and its institutions to take more power from this House, from our country and from our electors. We can already see important examples coming along. I thus urge my right hon. and hon. Friends to express the same degree of determination to ensure national self-determination and parliamentary sovereignty when we get to the occasions that we know lie before us in the not-too-distant—in fact, the immediate—future, particularly in respect of freedom, security and justice, where we have already agreed to certain opt-ins for one or two important provisions. We know that the EU has a big programme in these areas and that many more of them are coming along.

I gently remind my right hon. and hon. Friends that we promised in our manifesto that we would seek to repatriate powers to this country and certainly not give additional powers to the EU. The valuable opt-out that we enjoy should be mentioned. It was a red line for the previous Labour Government, although created under pressure from Conservative Members, so we need to be very careful as a party that we go no further than Tony Blair and the previous Labour Government were prepared to go in providing the EU with an opportunity to make the criminal law of this country. I believe that criminal law belongs to a nation state: individual electors should be able to have their democratic say about it, as should their Members of Parliament.

I urge my right hon. Friends to be equally vigilant in the important area of economic governance. We know that there is an agenda and we will look very carefully at it in the future. We have seen reports in the press—apparently well-founded reports—that the European Union is, through the exercise of its trade policy, seeking to interfere with our immigration policy through the granting of visas as part of trade negotiations. That too would constitute a transfer of power to the European Union. The ability to determine who should be admitted to this country as an economic immigrant does not belong to the European Union; it belongs to a nation state. We should make that determination, in accordance with our needs and with the promises we have made to the electorate on the important subject of immigration.

I take heart from what has been said this evening by my right hon. Friends the Ministers about that and about the many other issues that will no doubt go to the European Union. We know that the EU, particularly the Commission, is a beast that is hungry for power and is never satisfied, or at least has not been satisfied so far in its history. Each time we have placed a safeguard in the way to save ourselves from it, the EU has found a way around that safeguard and dismantled it.

Let us hope that things will be different in this instance, but I say to my right hon. Friends that they must be robust in the face of the EU’s demands. As well as the provisions in the Bill, we need Foreign Secretaries and other Ministers who will go to Europe, be prepared to say no and stand up for our national interests—and our supreme national interest is to preserve the ability to decide our own futures and preserve the sovereignty of our Parliament, which has been fought over, has taken so many years to establish, and is so grounded in our history.

I urge my right hon. Friends to do that and I believe that they will, for I have great confidence in them. Certainly, if they do, they will find solid support among Government Members who will back them every inch of the way when they go to Europe and say that this country is not prepared to abandon its opt-out and choose to opt in, is not prepared to submit itself voluntarily to economic governance by the European Union, and is not prepared to abdicate from its proud democracy and grant further powers to the European Union.

I said that my right hon. Friends would have the support at least of Government Members, but they should also bear in mind that the patience and credulity of the British public have been tested to breaking point by the European Union. People in this country are aware of the promises that have been made about the transfer of power to Europe, and if they find that yet more power has been transferred to the European Union, their patience will be tested beyond that breaking point. The grave disillusionment that they undeniably feel with the EU, which expresses itself in so many ways—for example, in their disenchantment with its lack of accountability—will then extend to the politicians and leaders who are perceived to have given away yet more powers to it.

However, I am confident that that will not arise. Let me say in particular to my right hon. Friend the Foreign Secretary—to whom the country owes a great debt of gratitude for the principled stand that he has taken over the euro and many other issues—that he will have the full support of Government Members if he complements the Bill’s provisions by going to Europe and seeing through the robust words that he has uttered this evening. He will deserve all our support if he does that, as I am sure that he will.