European Union (Approvals) Bill [Lords]

Martin Horwood Excerpts

Monday 4th February 2013 Commons Chamber

[Martin Horwood (Cheltenham) (LD)]

It is great to see the European Union Act 2011 in action. It has certainly drawn in the crowds today, in just the way that we might have warned that it might not do when we discussed the Bill. During its passage through Parliament, we warned that the Bill might represent a slightly disproportionate response to concerns about scrutiny and democracy in relation to European affairs.

The fact that we have ended up spending parliamentary time on the Floor of the House discussing the publication in electronic format of the European Parliament record suggests that we might have had a point. I remember Ministers optimistically assuming that a debate such as this might assuage the Eurosceptic concerns about democracy and scrutiny in relation to Europe. I thought at the time that that might be optimistic.

[Jacob Rees-Mogg]

I am not sure whether my hon. Friend heard all of the speech of my hon. Friend the Member for Daventry (Chris Heaton-Harris), which explained that the Germans have an exactly similar procedure in regard to article 352 on the treaty of the functioning of the European Union to ensure that those measures are legislated upon by their Parliament. Surely if it is good enough for the German people to have proper ratification procedures, it should be good enough for us.

[Martin Horwood]

Only yesterday the hon. Gentleman was declaring on Radio 4 that he was taking his lead from the Catholic hierarchy. Now he tells the House that he is taking a lead from the German Parliament. At this rate he might get a reputation for being a Europhile, which might not do his reputation within the Conservative party too much good.

[Wayne David]

Does the hon. Gentleman think the generous allocation of time by the Government has anything to do with the lack of any other Government business?

[Martin Horwood]

It is above my pay grade to judge, but I am sure that is not true.

The substance of the Bill relates to three measures, two of which are completely uncontentious—the e-publication of the Journal and the business plan, effectively, of the Fundamental Rights Agency. Other hon. Members are right that the third measure is worth more substantial debate, as it adjusts a mechanism that was supposed to limit the size and endless growth of the Commission. There are a number of issues that that growth has raised. It was not simply the practicality of having an ever-increasing number of commissioners. Without being unkind to some of the smaller member states, we know that there is a bit of a capacity issue in terms of their ability to produce candidates of sufficient calibre for a portfolio that affects the entire continent. Moreover, in terms of public perception, it slightly muddies the whole idea of the Commission. The Commission should be, in essence, the equivalent of our civil service. It should be the servant of the Council of Ministers, the various European ministerial councils and the European Parliament, and not pretend to be a representative body.

[Kelvin Hopkins]

I agree with that sentiment, but the reality is that the Commission and its officials act like a Government rather than a civil service. Only this week, I was told by someone who knows about these matters that when Commission officials decide on something it generally happens.

[Martin Horwood]

I do not often agree with the hon. Gentleman on matters European, but I do agree that there is a slight risk of that happening, as we have all been aware over many decades. We have to be careful about the level of democratic accountability in the European Union. I would always support increasing democratic reform and democratic accountability in the EU where we can do so.

There is the potential for endless growth in the number of commissioners, or at least for the number to be limited only by the number of European states that might join the EU. It was clear from the Irish referendum debate that, as any fan of the TV series “Borgen” will know, for smaller countries the appointment of a European commissioner is a major political issue to which people attach a great deal of importance, and we have to respect that. We are a community of many nations with many different priorities, and it is important that we acknowledge that. To that extent, I support the Government in backing this measure.

The hon. Member for Daventry (Chris Heaton-Harris) made a brave effort to make this debate sound like a very contentious one that demands this level of scrutiny. In the spirit of coalition unity, I recognise that the European Union Act 2011 has brought a greater level of accountability and scrutiny to European legislation in this place, and that process could go further. At the beginning of last year, Ministers announced that there would be a review of the way in which scrutiny of European legislation took place. Submissions were invited, and I found myself in rare agreement with the hon. Member for Stone (Mr Cash) in suggesting that Select Committees should automatically and routinely vet European legislation that was relevant to their briefs. Will Ministers update us on the progress of that process and say how far down the path we are towards introducing such routine and automatic scrutiny by Select Committees?

[Damian Green]

In the interests of the many parliamentarians I see assembled on these Benches, I should point out that the procedures of Select Committees are very much not for the Government to decide but are a matter for this House.

--- Later in debate ---

[Martin Horwood]

The recommendations of the Government on scrutiny was the issue in contention, and many of us made submissions on that basis. In the end, Select Committees might be a better option for scrutinising such legislation, or there could be a greater use of statutory instrument Committees or European Committees.

I absolutely stand by the European Union Act, which was an important agreement between the Conservative and Liberal Democrat wings of the coalition that, for a while, reassured many Eurosceptics on the Conservative Back Benches that we were going to give greater scrutiny to Europe. However, I suggest that we might in time reflect on whether it is a good use of parliamentary time to deal in the main Chamber with issues that are relatively uncontentious and, in many cases, relatively unimportant in the great scheme of things. With that major caveat, I am happy to give my support to the Bill.

[Jacob Rees-Mogg (North East Somerset) (Con)]

It is a pleasure, as always, to follow my hon. Friend the Member for Cheltenham (Martin Horwood), with whom I disagree on almost every matter regarding Europe, this being no exception. I think it is fantastic that we are spending parliamentary time scrutinising what is being done in the European Union. So many laws come to our nation from the European Union practically rubber-stamped as an appendix to a report put out by the European Scrutiny Committee that is not even debated in a Committee upstairs. The percentage that we send through for debate in Committee is small, and that which comes to the Floor of the House smaller still.

Article 352 of the treaty on the functioning of the European Union allows the European Union very widespread powers to extend its abilities to legislate across its areas of competence, and it is important for us to scrutinise and control that.

[Martin Horwood]

How many of the hon. Gentleman’s constituents or lobbying organisations have contacted him with their concerns about the electronic publication of the Official Journal of the European Union?

[Jacob Rees-Mogg]

I am bombarded with messages from across the country, and probably internationally, from people who want to know that the laws that affect them are made clearly so that they know what they are and are not caught out by trickery and underhand practices. That is a fundamental principle of why they send me here. I would argue that everybody who voted at the last election wants to sleep securely in their beds knowing that the law is fairly and properly made.

--- Later in debate ---

[Mr Cash]

Not long enough, says my hon. Friend. The fact is that article 308 is and always has been a very contentious issue. It is reflected in provisions in our own domestic law that deal with whether or not, when something is enacted, anything that flows from it can be done without the need for further primary legislation. It so happens that article 352 of the treaty on the functioning of the European Union has similar words:

“If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously…after obtaining the consent of the European Parliament, shall adopt the appropriate measures.”

That means that there is already a big amber light in relation to the acquisition of these further powers, although there is no legal base for them.

That is, in a nutshell, the reason for the Bill. Sections 7 and 8 of the 2011 Act do not apply to the two draft decisions that were made under article 352. An Act of Parliament is therefore required. That is a safeguard. My hon. Friend the Member for North East Somerset is right that it is important that we have an Act of Parliament, despite what the hon. Member for Cheltenham (Martin Horwood) said, not because of the nature of the provision in question, but because the 2011 Act, which the hon. Member for Cheltenham was so keen to endorse, did not provide for circumstances of this kind.

[Martin Horwood]

Will the hon. Gentleman give way?

[Mr Cash]

I will certainly give way to the hon. Gentleman, because I always like to hear a contrary view.

[Martin Horwood]

I am tempted to ask the hon. Gentleman to comment on the extraordinary assertion of the hon. Member for Daventry (Chris Heaton-Harris) that we do not discuss these matters in enough detail in this place. However, what I want to say to him is that I think he may have misquoted me. I did not say that we should not have legislation on these matters. I supported the European Union Act 2011 in that regard. I just suggested that we do not need primary legislation in every case.

[Mr Cash]

I do not want to be drawn too far down that route, but the simple reason for primary legislation is that, without it, there would not be adequate legislative authority, even for the questions that arise under this Bill.

I shall now turn to one or two issues relating to the Bill that required a considerable amount of consideration by the European Scrutiny Committee. I will give a tiny bit of history on the multi-annual framework for the European Union Agency for Fundamental Rights, but I will try to be as brief as possible. The Justice Minister, Lord McNally, stated in an explanatory memorandum that was issued to the House and the European Scrutiny Committee in January 2012 that he thought that the proposal was justified. He said that the Government would have opposed the proposal to extend the multi-annual framework, but wanted to consider whether the technical issues that they disliked had been addressed.

The European Scrutiny Committee reported on the proposal on 1 February 2012. We asked the Government whether they accepted the view of the European Commission that

“with the entry into force of the Lisbon Treaty, the Agency’s remit automatically extends, in principle, to all areas of EU competence under the TFEU, and that the Agency may therefore undertake activities within the field of police and judicial cooperation in criminal matters without any further amendment to its founding Regulation”.

We questioned the Government’s view that this decision satisfied the exemption requirements under section 8(6)(a) of the 2011 Act and would not require an Act of Parliament. Our 10th report, which was published on 17 July 2012, set out our concerns in greater detail. The draft decision remained under scrutiny.

The former Lord Chancellor, who is now the Minister without Portfolio, told the European Scrutiny Committee in July 2012 that a political agreement had been reached on the draft decision which excluded any new activity covering EU policing and criminal law measures. In a letter that he sent on 22 November, he told the European Scrutiny Committee that, having heard what we had said, the Government were now—although they had not been before—of the opinion that the exemption did not apply in this case, and that primary legislation would be introduced.

That is why we have this Bill—the European Scrutiny Committee did its job and asked for further clarification. [Interruption.] I am extremely grateful to the Under-Secretary of State for Foreign and Commonwealth Affairs, my hon. Friend the Member for Boston and Skegness (Mark Simmonds), for nodding his head, because sometimes people wonder what all the detail is about and whether we have to be so intricate. The bottom line is that the European Scrutiny Committee, by pointing out the legal objections and having a dialogue with the Government, who in turn had a dialogue with the European Commission, helped to make the legislation better. We helped to guarantee that there would be primary legislation and that, in the absence of the authorisation through the 2011 Act that had been deemed to be appropriate, this House would have the opportunity to consider the matter in the way we are considering it today. Indeed, after this debate, there will be a Committee stage and a Report stage.

The European Scrutiny Committee reported on the proposal again on 28 November. We cleared the document, but in January 2013 we pointed out to Ministers that the Government’s uncertainty about whether the exemptions applied to this decision had prevented the new measure from being agreed in good time. That is the history of this matter and it is important to put it on the record.

The draft decision on the number of European Commissioners provides another example of the European Scrutiny Committee takings its findings to the Government and, thereby, to the Commission. We received an explanatory memorandum and a letter from the Minister for Europe on 27 September. He stated that the size and composition of the European Commission was a fraught subject. He went on to say that it was difficult to identify a solution that was equitable, legitimate in terms of the relative size and weight of different European countries, and efficient. That is all in our report.

The European Scrutiny Committee considered the draft decision in its 13th report, which was published on 2 November 2012. We noted that because of delays in the draft decision being communicated to member states and because Parliament was in recess, it was not possible for us to scrutinise the proposal before political agreement needed to be reached on the draft decision at the General Affairs Council on 16 October 2012.

I put that on the record because it is important that these matters have a proper legal base and that Parliament has an opportunity to debate them. We are having this debate on the Floor of the House, so it is open to any Member of Parliament to discuss these proposals, to oppose them, to examine them in Committee and to table amendments.