European Union Bill

Martin Horwood Excerpts

Wednesday 26th January 2011 Commons Chamber

[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.

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[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.

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[Chris Heaton-Harris]

I tend to agree with the hon. Lady. When she reads the written ministerial statement, she will see that it represents a huge step forward in our scrutiny of these things in this place and she may see what measures the Government might want to opt into. I wished to raise this question of the opt-in now, because I think that the Bill is a step forward, as is this clause.

[Martin Horwood]

I was interested by the intervention made by the hon. Member for Birmingham, Edgbaston (Ms Stuart). She has great knowledge of European matters, but she may be wrong about this. Not everything that we are talking about opting into based on these passerelles has been positively opted out of before. We are talking about new ways of working within the competences already set out in those passerelles.

[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.

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[Mr Jenkin]

I thought the exchanges between the two Front Benchers about the real nature of the coalition agreement were very revealing. We have all known about this from the minute that the coalition agreement was first mooted. That is why I was one of the newly elected Members who went to see the then Leader of the Opposition, just after the election, and said, “Do not do this; let us have another election in short order so that we can deliver our mandate and our promises to the British people.” We knew that we were being bound into an arrangement that would mean having to swap our obligations to our electors—let us face it, handing criminal jurisdiction over to the European Union is not exactly a popular thing to do—for a mess of pottage: a compromise with the Liberal Democrats. The Deputy Prime Minister took great interest in these matters, particularly justice and home affairs, when he worked for the European Commission and I understand that he is personally extremely committed to the creation of a federalist criminal justice legal order as part of the state building of the European Union. We are now actively participating in that.

[Martin Horwood]

In the spirit of coalition, which the hon. Gentleman so obviously and positively espouses, does he accept that the Liberal Democrats have moved quite a long way in accepting this Bill at all and that many of the strictures it puts on the progress of proper government at European level are things that do not come particularly naturally to Liberal Democrat Members?

[Mr Jenkin]

I am perfectly prepared to accept that some Liberal Democrats have compromised considerably on the Bill.

What does the Bill add up to? The problem is that it does not change anything. It does not change the relationship between the European Union and the United Kingdom one comma or dot. It is about the arrangements between the British Government and the British Parliament. We all know that it is designed to give the impression that this and future Governments will somehow be locked down by the referendum lock and will be obliged to have referendums as never before. It is certainly useful to create that expectation because the disappointment when no referendum occurs will then be much deeper, but what does the Bill actually mean?

Clauses 2 to 7 make a lot of legal arrangements to ensure that decisions taken by the Government are approved by referendum or Act of Parliament. There are certain exclusions that we have already argued about, such as whether the treaty on fiscal union will somehow be exempted from referendum even though it is probably one of the most significant European treaties we will see in our lifetimes. That is the state of the Bill, which has some remarkable tripwires—so many that the Opposition spokesman has been saying, “This is getting too particular and detailed; we will have to have Acts of Parliament and referendums on all kinds of things that are patently ridiculous.” That is why I think that future Governments will wriggle out of the obligations without much difficulty.

My amendments concern the opting-out proposals. In order to make the Lisbon treaty, which establishes the European Union’s authority over criminal and civil law, more palatable, there was an arrangement that the United Kingdom could opt out at a later date. One would have thought that a party and a Government who were elected on a platform to repatriate powers from the EU, and who fought against the Lisbon treaty on the principle that the European Union should not have jurisdiction over our criminal law, would be keen to ensure that any coalition agreement reflected that policy, particularly as they have talked about a sovereignty clause, a referendum lock and so on.

We know that there will probably never be a new treaty amendment that meets the test that triggers a referendum. Indeed, the Minister made it clear that he has no intention of letting a Bill through the House that would trigger such a referendum during the lifetime of this Parliament. The Lisbon treaty has made the EU self-amending. The Liberal Democrat MEP, Andrew Duff, who is chair of the Federal Trust, said on the BBC World Service: “The treaty of Lisbon is in force and it won’t be unpicked by the British. It can’t be. It is the statute which will probably govern the Union for some time.” As I said in the debate on Monday,

“The problem is that this is not the ‘thus far and no further’ Bill; it is the ‘locking the stable door after the horse has bolted’ Bill.—[Official Report, 24 January 2011; Vol. 522, c. 116.]

We do not know whether the next five years will see any changes to the EU treaties—I suspect they will—but there is one area in which the Government will have to make a very significant decision: whether to give more powers to Brussels or to bring them back to Britain. I remind the Committee that were the measure outside the jurisdiction of the European Communities Act, there would be no question but that there would be hundreds of pages of Acts of Parliament to implement this stuff, instead of its automatic inclusion in our law and implementation. It is fundamentally undemocratic to reorganise our constitution by the stroke of a Minister’s pen in this way.

In crime and policing, EU measures which were passed under the pre-Lisbon third pillar arrangements are in this transitional period. Under the Lisbon treaty, there is a period in which we can opt out en bloc, as the Minister said. These measures include the European arrest warrant and the recognition of the trial of UK citizens in EU countries held in absentia. I have in my passport something about the protection of UK citizens, and here we are, handing over the possibility that UK citizens can be tried in other European jurisdictions without even being there. That is something that we do not do in our own jurisdiction.

The creation of the European public prosecutor will happen under the arrangement. The Government will have a straight choice between expanding the jurisdiction of the European Court of Justice over the British justice system, or opting out of the measure. It is a rare opportunity that we have in the treaty to repatriate power. One would have thought that we would want to do it, but the Bill as it stands does not include any control whatever over that decision. All we have is a personal assurance from the Minister that he will bring it to the House for a decision. That is welcome, but it not the kind of democratic control that is needed.

The Government have just announced the revision of control orders, which will require legislation. That is subject to democratic control. Imagine if the control orders decision was announced by the Government and required no legislation. That is what we are being offered in the Bill.