European Union Bill

Martin Horwood Excerpts

Tuesday 8th March 2011 Commons Chamber

[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.

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[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.

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[Charlie Elphicke]

It is a privilege to follow the extraordinarily interesting and thoughtful speech of the hon. Member for Linlithgow and East Falkirk (Michael Connarty). The debate on the new clause has been largely underpinned by a dislike and distrust of the European Union and its works, and I share that distrust. Many Members feel that an organisation that spends vast swathes of our money and imposes massive increases in our budget contributions in return for no obvious value, at a time of great downturn across the continent, is not an organisation that is in touch with this country—or any other country. They do not trust an organisation that feels so remote from the electors of this country and every other country in the European Union. Even in Germany, an increasing number of people are finding the European Union and its works troubling.

[Martin Horwood]

The hon. Gentleman says that he attaches no obvious value to the European Union. Does he exclude from that the EU’s important contribution to world climate change and trade negotiations? Does he exclude the European arrest warrant, which enables us to fight terrorism across international borders? Surely those things have some value.

[Charlie Elphicke]

They could all have been achieved by nation states. Obviously we welcome the ability to do some things on a wider and more agreed basis, but we do not want the spider’s web of intrusion into our national lives and the lives of member states that we have seen in the European Union. That is why many Members object to it and say, “We don’t trust anything that happens there.” Every time there is a treaty negotiation the spider’s web creeps further out, more of our money is sucked in, and more of our national vitality is taken away from us and planted in Brussels.

I am merely recording the sentiments that, in my view, underlie the new clause. It is felt that we have been shut out of the process, and that we do not have a say. For the last 20 or 30 years, the Governments of all the member states in Europe have been saying that they have secured great deals in Europe, but the general public in countries throughout the European Union have a sense that they have, to some extent, been sold down the river.

The new clause is underpinned by questions such as, “What are the amendments that you are moving? What are the discussions that you are having? What really happened behind those closed doors?” I understand that view, but although I share the deep concern that has been expressed about our involvement, and future involvement, in the European Union, I am not sure that the new clause represents the right way in which to deal with it. There is a balance to be achieved, given the inevitable tension between transparency and the need for negotiations. I am a massive fan of transparency, because I want to know how the European Union spends our money, and I want government that is accountable to our people. Dare I say it, I want government of the people, by the people, for the people. On the other hand, we must take part in negotiations, and we must ensure that our negotiating position does not blow up in our faces.

Many examples can be given. The Cabinet meets in secret, and we do not learn what happened until some years later; the NATO councils and some of the United Nations councils meet in secret as well. Traditionally, relations between member states tend not to be published on a case-by-case basis. I have listened with interest to the argument being put that the Council of Ministers is not an executive organisation but a legislature. That is a technical, semantic argument about what is really a negotiation between Governments of member states—it is an intergovernmental negotiation.

I have grave misgivings about giving away our negotiating position and telling other nations, which we want to squeeze for a better deal, where our top and bottom lines are in that negotiation process. I make that point because I must tell the House, with regret, that I used to be a law firm partner—I was a poacher before I turned gamekeeper—and in that time I would negotiate for my clients against the lawyer on the other side of the table who was representing their client. I did not want to tell them what I was going to concede; I did not want them to have an idea of what I and my client might, and might not, give away in future negotiations. I did not want to reveal where the lines of debate were or when I would say, “No further,” because if I had I would not have got the best deal. Just as in those times I wanted to get the best deal for my clients, in these times I want to get the best deal for my clients, who are now the people of Dover, and the nation as a whole.

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[Charlie Elphicke]

My hon. Friend makes a powerful point. I do not think that it is for me, as a Back Bencher, to find the detailed solution, but those who are senior in the House, such as Front Benchers, should consider the other models of accountability used in Europe. They should consider the fact that we want accountability and transparency, without prejudicing the United Kingdom’s negotiating position in the discussions that are held in European Councils. So long as we have to put up with being a member of the European Union—or, indeed, are enthused by that fact—we need to negotiate well and get the best possible deal for this country.

[Martin Horwood]

I originally intended to speak in support of the comments made earlier in the debate by my Gloucestershire neighbour, the hon. Member for Stroud (Neil Carmichael), but I found myself in a surprising degree of agreement with the hon. Member for Dover (Charlie Elphicke), who gave a learned analysis of the implications of the new clause, as opposed to its intent.

As described by the hon. Member for Birmingham, Edgbaston (Ms Stuart) and others, the intention is to create more transparency and openness—that is obviously a good thing, which we would all support—but somewhere in the drafting of the new clause it has become a little confused, or perhaps awkward, in the attempt to bring it within the scope of the Bill.

The effect of the new clause would be to reveal a great deal of documentation, but after the decision had been taken. The decision to which the statement under clause 5 related would have already happened. Although much of the documentation would be relevant in the sense that it related to that decision, it might not prove to be very pertinent to the decision. Much of it might be advice, even legal advice, that was ultimately rejected. So it would not have materially affected the decision under consideration. What really mattered would be the outcome, and the proposals that the British Government were putting to Parliament and, perhaps even in a referendum, to the people of this country. We could discuss that without the benefit of all the paperwork that had been discarded earlier in the process.

The second problem with the new clause is that a lot of what the hon. Member for Birmingham, Edgbaston said was about trying to add transparency to the process at European level—to the Commission’s decision-making processes and the debate in the Council of Ministers. The hon. Member for North East Somerset (Jacob Rees-Mogg) compared that to the former secrecy of debates in this Chamber, but the new clause would not reveal the debate that took place at European level. It would reveal only the background paperwork, which would be rather like getting a House of Commons briefing, but with no copy of Hansard to follow.

The new clause would not bring great openness or transparency to European processes. The only transparency that it would provide would be on the British negotiating position. Then we would start to have a problem, because although that would be revealed after the event, the nature of the advice, especially the legal advice, could have profound implications for future negotiations. If we revealed all that documentation, that would clearly impact on the position of British Ministers in subsequent negotiations. It would almost certainly impact on the advice, especially legal advice, that officials felt able to give to Ministers, because they would know that it was not private advice, but would become public in due course. Clearly, that would put British Ministers at a disadvantage relative to other Ministers in the European Council. It would undermine the British interest and thereby achieve, presumably, the reverse of what the new clause intends. It would, in a real sense, send British Ministers naked into the Council of Ministers. In some cases, that is a very sobering thought indeed.

[Mr Ian Davidson (Glasgow South West) (Lab/Co-op)]

Has not the Liberal position traditionally been to want British Ministers to go naked into the conference chamber of the EU? Does the hon. Gentleman agree that his and his colleagues’ Europhile tendencies contributed towards the Liberals’ stunning success in coming sixth in the Barnsley by-election?

[Martin Horwood]

I am not sure that we have a party policy on nakedness in general—although I shall certainly consult my colleagues on that.

I shall not detain the House long, but it seems clear that the new clause would result in the undermining of the British interest in terms of ministerial participation in negotiations. There may be measures that should be introduced to add more transparency and openness to the EU at Commission level, and certainly at Council of Ministers level, and I am sure that I, and Liberal Democrat Euro MPs and Members of this Parliament, would be sympathetic to them. There may even be methods that we should explore similar to the Finnish model about which we have heard so much. Those would also be greeted with a lot of sympathy, but the new clause would not deliver any of those things, so I am afraid that hon. Members should throw it out.

[Ben Gummer (Ipswich) (Con)]

My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) reminded us that the purpose of the new clause is to deal with the manifest lack of trust that the public have in the negotiation, on behalf of the British public, of grave constitutional issues in the European Council and elsewhere. The new clause would itself introduce a considerable constitutional change, and I hope that hon. Members will allow me to say that I would find that not a necessarily unhappy change, but a change none the less. That is the fact that, heretofore, Ministers of the Crown negotiated and treated on behalf of the British people and of the Crown, and Parliament, if it saw fit, studied the results of that treaty after the event.

That is not necessarily a good way for Ministers to discuss the nation’s interests in the councils of the world, but it is the situation as it stands. I would suggest, therefore, that if we are to see a change to that protocol—as was, to a degree, anticipated by the previous Government in their discussions on the royal prerogative—it may be appropriate to consider in the round the other international bodies and instruments to which we are party, and not just our relationship with the EU.

Hon. Members have rightly said that the EU is of considerable concern to many of our constituents. It is, but so are our World Trade Organisation negotiations. The EU has not yet created a riot on the streets outside Parliament—not yet, at least—yet a few years ago we had the anti-globalisation riots, which arose directly out of our negotiations in the WTO.

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[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.

[Martin Horwood]

With the hon. Gentleman’s combination of eloquence, erudition and traditionalism, he is well on the way to becoming a national treasure already. However, surely he would admit that he is really making a much better case for a written British constitution making such a distinction, rather than for giving extended powers to the unelected Chamber as the guardian of democracy. That seems quite quirky, even by his standards.

[Jacob Rees-Mogg]

I thank my hon. Friend for his intervention, but I am afraid that he entirely misses the point. In framing the new clause I have been working within the confines of our unwritten constitution, using the elements and protections that are already there, and extending them to the Bill. I absolutely accept that it is an irony of our constitution, as it already exists, that the protection against a Parliament lengthening its own life is an unelected Chamber a few yards down the way. However, that is the situation in our constitution, and it is one that has been enormously effective for 100 years.