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.

European Union Bill

Martin Horwood Excerpts

Tuesday 1st February 2011 Commons Chamber

[Priti Patel]

I would not rule out anything, to be honest. As I started by saying, the new clause is designed to generate more openness and transparency in the transfer of powers and, ultimately, the amount of say that the EU has over us in this country. Right hon. and hon. Members, as well as the public, could therefore review the report, audit the EU and further hold decision makers to account, so I would welcome the opportunity not only to discuss but to vote and to have full-blown transparency.

The new clause is necessary because the monitoring of EU policies and the transfer of powers is not as effective as it should be. I pay tribute to the European Scrutiny Committee for its tremendous work. Unfortunately, the Chair of that Committee is not here this afternoon. It should be of concern to the legislature that such information is not always readily available and that important qualitative and quantitative data on the EU are not easily accessible.

[Martin Horwood (Cheltenham) (LD)]

I am slightly surprised. Given the evidence of the past three weeks, is my hon. Friend really suggesting that even the slightest scintilla of power moving from this country to the European level will not be noticed by the hon. Member for Stone (Mr Cash) or the hon. Member for Wellingborough (Mr Bone) or all her other hon. Friends? They seem to be on to these things like terriers most of the time.

[Priti Patel]

And quite rightly so. Of course, we have a House full of assiduous Members and the European Scrutiny Committee has been very effective, but I am talking about an annual report and more openness and transparency.

By asking a range of parliamentary questions of 10 Departments, I received information stating that at least 79 current EU directives were pending transposition into UK law at a total cost in excess of £20 billion, and that is just one example. Of course, assiduous Members will ask many other questions and do a lot more fact finding to identify and uncover other transfers, too.

There is no reason why such information should not be published regularly, and Ministers must endeavour in future to be more transparent and accountable. It is therefore important in going forward with the Bill that information on the costs, benefits and powers exercised by the EU is available and accessible, as that greater transparency and opportunity to hold Government policy to account over the EU would, in my view, be most welcomed by the British public.

The new clause would go somewhat further than just making more transparent the EU, the Government’s policies on the EU and transfers of power, because it effectively asks the Government in their annual report to publish details of plans to repatriate the powers and competences from the EU that they believe should be held by this country. As drafted, the Bill will establish a referendum lock and safeguards against further significant transfers of power, which I have consistently supported and welcome, but it does not cover the approach that should be taken to repatriate powers to this country that the EU currently holds that are not in our national interests and on which the public expect us to act.

We have heard about many opinion polls in these Committee proceedings, but I shall refer to another one. An opinion poll conducted four years ago, before the previous Government handed over even more power under the Lisbon treaty, found that 58% of the British people believed that the EU should have less power and that more decisions should—surprise, surprise—be taken nationally and locally, and that 68% of people thought, quite frankly, that the EU did not represent ordinary people in our country.

Across a diverse range of policies, the public and parliamentarians of all parties can point to powers that the EU should not have, and that the British people believe should be brought back to our country, for a range of democratic reasons as well as on cost grounds. They include policies on access to our territorial waters, which we debated last week when discussing fisheries, as well as on justice and home affairs.

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[Priti Patel]

Absolutely not! I believe that the Conservative party has very much embraced the views of the party that I represented back then. I have been campaigning for a referendum for more than 15 years, and the Conservative Government are now proposing it.

I was talking about the powers that have been handed over to the European Union. The European arrest warrant has been the subject of a great deal of debate in the House, and social and employment policies have cost the UK more than £38 billion. We have heard mention of the working time directive, as well as of waste in regional policies, economic controls and financial services, not to mention the endless regulations that burden our businesses, the £1 billion that the EU is seeking to fine the UK and the £50 billion, which I mentioned during questions today, that the UK is set to hand over as a net contribution over the next few years to 2016.

[Martin Horwood]

Many of us think that the European arrest warrant is a useful and positive counter-terrorism measure. Would it not be better to take what would presumably be an annual debate on the hon. Lady’s proposed report and broaden it out into a debate on the work of the European Union or the Commission’s work programme as a whole? That would subject the whole programme of the European Union to scrutiny in this place, and allow those of us who have a more positive view of the EU to put our case as well.

[Priti Patel]

I suggest that timetabling the required number of hours and days for such a debate could be quite challenging, because it would have to cover a vast number of issues.

In my view, the British people deserve to know what their Government are planning to do, not only about the powers that the EU seeks to exercise but about those that it currently uses and—dare I say it—abuses, according to some in this House. Like all Conservative Members, I stood on a manifesto that clearly stated:

“The steady and unaccountable intrusion of the European Union into almost every aspect of our lives has gone too far.”

Following the ratification of the Lisbon treaty, we made a commitment not to let matters rest, and to negotiate the return to Britain of criminal justice powers and the opt-outs of the charter of fundamental rights and of social and employment legislation. The new clause would give the Government and the Prime Minister an annual opportunity to update the House on the actions being taken to deliver that, and to bring genuine openness and transparency to these proceedings.

Forty years ago, when we entered what was then known as the European Economic Community, few could have predicted with any accuracy how deeply integrated and ingrained the EU has now become. Had we known that at the time, I am sure that this Bill would have been even more robust than it is.

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[Mr Bone]

I am grateful for the hon. Lady’s intervention. Her views on this have been most helpful and supportive. I am sure that other Members will try to catch your eye, Mr Evans, and I hope that the debate will still be going on when she returns. She makes the fair point that when both sets of Front Benchers agree on something, it is almost certainly wrong.

[Martin Horwood]

I think that the hon. Lady might have been excluding the Liberal Democrats from the establishment parties, which I would obviously be very pleased about.

The hon. Gentleman will acknowledge, I hope, that Liberal Democrat policy remains in favour of an in/out referendum, although not in the way that his new clause suggests, and we argued for it strongly during the passage of the Lisbon treaty Bill.

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[Mr Bone]

I apologise, Mr Evans. I am also sorry that I did not finish the quotation from my right hon. Friend, the Prime Minister.

I wanted to make it clear to the Committee that Conservative Members will have a free vote if the new clause comes to a vote. I think that there is some confusion about that, and that the Chief Whip does not quite understand the Prime Minister’s instruction. I just hope that some of my colleagues are not put off voting for new clause 11 tonight because of that.

The people of Britain put us in a coalition Government. We must therefore work together as a team—a unit—that works in the very best interests of this country. The public must have seen certain aspects of the Liberal Democrat and Conservative manifestos that they liked. I will deal with the point that my hon. Friend the Member for Cheltenham (Martin Horwood) raised. I would like to think that the following part is what particularly caught the eye of Liberal voters. To quote another piece of literature that was interesting, although not quite as good as the first:

“The European Union has evolved significantly since the last public vote on membership over thirty years ago. Liberal Democrats therefore remain committed to an in/out referendum”.

That is straight out of a good piece of literature, the Liberal Democrat manifesto 2010, “Change that works for you—Building a fairer Britain”. It certainly works for me, and I hope it works for the country.

[Martin Horwood]

Would the hon. Gentleman like to complete the sentence from our manifesto that he quoted?

[Mr Bone]

I am afraid I have already tried your patience, Mr Evans, so I will not quote any more.

[Martin Horwood]

The end of the sentence, which the hon. Gentleman omitted, stated that we were committed to a referendum when a significant transfer of power takes place from the British to the European level. In essence, that was an alternative to the current Bill, which the Conservatives instigated. We can have one or the other, but not both.

[Mr Bone]

I really should have added that, because it helps my case, and I apologise for not having done so. The hon. Gentleman is absolutely right, and that is exactly what my new clause would achieve. If there were a significant transfer of power, an in/out referendum could occur. That is exactly what the Liberal Democrats want, so the new clause should gain their support more than a proposal to have a referendum that was not even in the Conservative or Liberal manifestos, such as on the alternative vote.

[Martin Horwood]

I am afraid that what the hon. Gentleman is proposing is not what was in the Liberal Democrat manifesto. The question is, what should trigger a referendum? In our view, it should be a substantial transfer of power. His new clause suggests that it should be the loss of a previous referendum, presumably only weeks or months before.

[Mr Bone]

I am afraid that we are in a coalition, and we do not get everything we want, but we get the best of it. I am taking the best of the Liberal suggestion, and it is only fair that I go on to examine the Conservative view.

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[Mark Reckless]

My hon. Friend is correct, but the key point is that we can still have the referendum that the Liberal Democrats wanted. The Conservatives cannot go back to the pre-Lisbon EU position because the founding treaties have changed. We have the Lisbon treaty, but we could still decide to hold an in/out referendum.

[Martin Horwood]

rose—

[Mark Reckless]

The in/out referendum is still an option, and I would hope the hon. Gentleman still supports it.

[Martin Horwood]

It is no surprise that the Liberal Democrats voted for the Lisbon treaty—we were in favour of it. Is the hon. Gentleman arguing against the logic of the Bill? Under new clause 11 there would be an in/out referendum when a transfer of power happens, but the Bill proposes specific referendums on those transfers of power. There is absolutely no logic to having an in/out referendum after a transfer of power is defeated in a referendum, because no transfer of power will have taken place.

[Mark Reckless]

I am saying that the principle of an in/out referendum is important. The Liberal Democrat position, as I understand it, is that the British people should decide whether we stay in the EU with Lisbon, or whether we leave. Let us have that referendum.

The most important point in respect of the Bill is that Ministers seem not to have noticed that the world has moved on. A Bill that would have been perfectly satisfactory in 1992 at the time of Maastricht is now, after 19 years of further transfers of powers to the EU, utterly inadequate for its task. My constituents are not especially concerned about referendums on technical transfers of power five or six years—at the earliest—down the road; they want to vote on our membership of the EU, and they want to do so now.

Ministers have made a serious mistake in thinking that the Bill will somehow buy off dissent, or that my constituents will believe it really changes the EU situation. My constituents believe that the transfer of powers to the EU has already gone much too far. The only thing that can deal with that situation is an in/out vote, so that we can re-establish our independence as a nation.

I am more surprised about the political error that Ministers are making in thinking that the Bill is sufficient. They do not consider what they leave themselves open to if the right hon. Member for Doncaster North (Edward Miliband) flips position, as I believe he might. We have debated the Liberal Democrats’ position, but Conservatives cannot assume that we will always be on the popular side of the argument relative to the pro-European Labour party. There are very few Labour Members in the Chamber, but what defines the Labour party in respect of Europe is not that it is pro-European but that it does not feel that strongly about Europe relative to other issues.

My friend over the water whom I mentioned says that there is a first rule of politics. He says that, essentially, all parties in government are pro-European, and only Opposition parties become genuinely Eurosceptic. What will happen if in two or three years, the right hon. Member for Doncaster North flips position and says, “The Labour party is pro-European and we want to put that case, but it is for the British people to decide.” Where will that leave the Conservatives? Will the Minister accept that the principle of the in/out referendum is now overpowering? Will he allow the British people their choice?

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[Dr Julian Lewis (New Forest East) (Con)]

rose—

[Martin Horwood]

rose—

[Keith Vaz]

I give way to the hon. Member for Cheltenham.

[Martin Horwood]

I rise with some fatigue, having I thought made this point three times already, but the Liberal Democrat position was to support an in/out referendum at the time of a substantial transfer of power from the British to the European level. The Bill provides for far more referendums. That is not necessarily what the Liberal Democrats would have wanted in the first place, but this is the Bill before us and our Conservative colleagues believe that it is very important. Those referendums will be referendums on the specifics of a transfer of power. There is no logic to the new clause—and certainly no consistency with the Liberal Democrat position—because it says that only when a referendum is lost, thereby establishing that there will be no transfer of power, should an in/out referendum be held. It is barmy.

[Keith Vaz]

I am not surprised that the hon. Gentleman has had to explain that three times, because I am afraid that he lost me in the first sentence. I do not think that what he said is logical at all. I understand what the Government are trying to do. The Minister is here, and I know that the hon. Member for Rochester and Strood said that he had met him a few years ago at a dinner party. I first met the Minister for Europe when I was 18 years of age—[Interruption.] The hon. Gentleman was 18 as well? Goodness, that is rapid progress. Perhaps it was the same dinner party. Anyway, what the hon. Member for Cheltenham has set out is an illogical position. There is absolutely nothing wrong with having such a referendum.

--- Later in debate ---

[Mr Hollobone]

Those countries would still be able to trade with us. The big difference between 2011 and 1972 is the fact that trade barriers have fallen all over the world and continue to do so. As a free independent trading nation, Britain would still be trading with China, India, South America and the European Union, with lower trade barriers than we had 40 or 50 years ago.

[Martin Horwood]

If the hon. Gentleman is not persuaded by the argument about the jobs that would be lost if we left the European Union, what about the democratic deficit that would result from our trying to trade and have full market access to the EU, while having absolutely no say in the regulations and legislation that would deliver that access?

[Mr Hollobone]

The democratic deficit in this country lies in the fact that most people want to leave the European Union, but are not being given a say in that.

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.

--- Later in debate ---

[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]

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.

--- Later in debate ---

[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.

European Union Bill

Martin Horwood Excerpts

Tuesday 25th January 2011 Commons Chamber

[Martin Horwood (Cheltenham) (LD)]

I just want to clarify the practicality of the hon. Gentleman’s suggestion. He mentioned minimum judicial procedural rights as one of the home affairs subjects that relate to this. We opted in to that because it is important, for instance, for British citizens arrested abroad to be protected. Is he seriously suggesting that if that issue came up in future he would want it to trigger a referendum, even though it is within the existing competence that we have already conceded to the European level of government?

[Mr Clappison]

The hon. Gentleman is furrowing his brow, so perhaps I can help him. We have heard it argued so many times that because a measure has merit we should opt in to it, whether it relates to victims, tackling crime, or this, that and the other. He must come clean and see it, as I have been arguing, as all of a piece, because it is part of a programme of the European Union. It is set out in the treaty of Lisbon as one of the objectives of the EU, and the European Commission is forever coming forward with proposals. It has a whole programme for creating what it describes as an EU area of freedom, security and justice. On the example of judicial procedural rights, the issue is where we determine which judicial procedures should apply in what country. Do we decide that our judicial and criminal procedures should be determined here in this House, or do we hand it to the EU so that it is decided on qualified majority voting and subject to the European Court of Justice?

We have heard those arguments many times. I draw the hon. Gentleman’s attention to the fact that this is part of a programme from the EU, and it was set out in the EU’s 2011 work programme as one of its five main political priorities. President Barroso set that out in his state of the Union address to the European Parliament on 7 Sept 2010. The third main priority, after dealing with economic matters, was building an area of freedom, security and justice. We must take it as a whole, rather than picking compartmentalised issues one by one and looking at them judiciously because doing so might make an improvement here or there. It is part of an overall programme for building a European area of freedom, security and justice.

[Martin Horwood]

I appreciate that the hon. Gentleman is making a point of principle and that what he has described adds up to a general direction of travel that he is legitimately concerned about. However, I would ask him to consider the practicality of it. If we have an uncontentious and pretty technical issue that is relatively minor in the great scheme of things and that no one particularly objects to it, such as the minimum judicial procedural rights that are intended to protect British citizens abroad, would he really want that to trigger a referendum or, as is more likely because of the fear of a referendum being lost, for it simply not to happen?

[Mr Clappison]

I am afraid that the hon. Gentleman is again quite wrong. None of the items being put forward by the EU are being put forward because they are minor, technical changes that will make little difference; they are being put forward precisely because the EU believes they will make a difference and will help to build a European area of freedom, security and justice.

So much of this is bogus. Much has been said about what will happen in different countries and about the cross-border dimension, but the decisions will affect every single criminal and civil case that takes place in this country in so far as we have adopted the European directive in question. The EU is trying to introduce its jurisdiction in civil and criminal matters in this country into the whole of our legal system on the basis of what might happen in cross-border cases. I think that individual members states should decide on their criminal and civil legal systems for themselves, as that is a characteristic of a member state and part of its nature. If the hon. Gentleman has so little confidence in what takes place in other member states, he could start by relying on the fact that we are all signatories to the European convention on human rights, as are a number of other countries.

[Martin Horwood]

The hon. Gentleman is being generous with his time. My point is not really about the point of principle that he is labouring. He should imagine a hypothetical situation that would apply in this case, in which a matter is important but not massively so in the great scheme of European government and the whole European project and is something that everyone agrees should happen and that is uncontentious. In such a situation in which even he supported the practical step, would he really want to put the UK to the vast expense of a referendum on something that everyone supported?

[Mr Clappison]

It is difficult in the field of civil and criminal procedure to disconnect one step from another. The European Court of Justice, whose jurisdiction will be opened up, can always come along and make a decision that goes far beyond what was originally envisaged. We must look at the whole system of civil and criminal justice, including whether decisions are taken in this House, or whether we abnegate self-government and hand those decisions over to the EU.

The hon. Gentleman can make his case, but I am concerned about the scrutiny and decision making that take place each time we take one of these decisions. He referred to technical matters, but in the course of this short Parliament we have already had two very important directives in the field of freedom, security and justice: the European investigation order and the draft directive on the right to information. I do not know whether he or his colleagues took part in the debate we had in the European Committee, but it was accepted on both sides—it was put forward by the Secretary of State for Justice—that it was an important step in itself. I am not sure what his party’s participation in that was, but that was the basis of the decision. That process took place under the existing scrutiny of this House.

The European Commission has an ambitious programme for the year ahead, and the Minister has conceded that there are 30 or 40 more such measures coming along from the EU. In Mr Barroso’s work programme, “Pursuing the citizens’ agenda: freedom, security and justice”, the first three items listed are: a legal instrument on European contract law; a regulation on improving efficiency and enforcements on judgments in the European Union; and a directive on the rights of and support for victims of crime. With respect to the hon. Gentleman, I do not think any of those could be described as minor or technical.

[Mr Clappison]

The hon. Member for Cheltenham (Martin Horwood), whose opinions differ from mine, has made his case very honourably, and it is one that might attract many people outside this House. I have to ask whether he is happy with the ways in which those matters are currently dealt with before this House. The amendment tabled by my hon. Friend the Member for Stone seeks to make those matters subject to an Act of Parliament and a referendum. My own humble amendment, which we will come to later—I hope that this debate will not prejudice its consideration—would make matters within the area of freedom, security and justice subject to approval by a vote of this House, which I hope is not too radical a step to propose.

On any view of it, these are matters that will come before the House, whether as my hon. Friend describes, or, as I shall try to argue later, as a minimum, in the way I am seeking. The hon. Gentleman must look at the system that we have in place for scrutiny of these matters as they come before the House. When they come before the House, as in the case of the investigation order and the right to information order, which we have already had, it is very hard for the House to express its view on those important issues.

My right hon. Friend the Minister has brought forward some proposals and made a statement last week on how to improve scrutiny of opt-ins to the area of freedom, justice and security. If I may pay my right hon. Friends the Minister and the Foreign Secretary a compliment, I should say that they have made a real step forward with their proposals, but we need to find out just how far that step forward is going to go.

The following questions are relevant to amendments 36, 37 and 38, because they cover the same area. In each case, when the opt-in to certain European areas such as freedom and security is exercised, a decision will be taken whether the United Kingdom is going to opt into specific measures that the European Union has brought forward. There have been half a dozen already, and there are another 30 or 40 down the track, but, under my right hon. Friend the Minister’s scrutiny proposals, will the House have an opportunity to vote on each occasion? That is very important.

How will the scrutiny override proposals work? I hope the hon. Member for Cheltenham agrees on this point, because he would want to make his case about what a good idea such measures were, and what benefits they would bring. I should want to make my case that such measures should be decided in the House, but we could each make our case and have a vote in the traditional way. I should hope that that was not too dramatic a step for any hon. Member.

I am concerned about what my right hon. Friend the Minister said about scrutiny override in his statement. That is one aspect on which we could improve, because he said:

“As currently, the Government will not override the scrutiny process unless an earlier opt-in decision is essential. Where the Government consider an early opt-in to be necessary, it will explain its reasons to Parliament through the statement set out above. In these circumstances, it would usually be appropriate for the statement to be made orally.”—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]

I am not sure that we should put the administrative matters that lie behind the decision, the timetable of the European Union and whatever interminable administrative processes have to be gone through in the Foreign Office before the House’s approval. It really does not put us in a very good place—behind what are termed “essential” decisions. The House should have an opportunity to express its view on the decision first, so I invite my right hon. Friend to go away and think about that. It is all very well having a statement after a decision has been taken, but the House would like the opportunity to express its view through a vote before such a decision is taken.

I have taken part in European Scrutiny Committee debates, and decisions have been taken, the Government have agreed to legislative measures and then we have had the debate in a European Committee. We do not have any opportunity to inform the Minister’s thinking or to debate the matter before the decision is taken, let alone to take a vote on it. Under the current procedures of the House, we cannot do so; it is very difficult to have a substantive vote on security matters. The most that the European Scrutiny Committee can do is to hold a matter in reserve until it has been debated in a European Committee, but neither those nor debates on the Floor of the House provide for a vote to approve or disapprove of particular legislation.

[Martin Horwood]

rose—

[Mr Clappison]

I give way to the hon. Gentleman, who has been very reasonable on these matters.

[Martin Horwood]

I return the compliment. The hon. Gentleman is spending a lot of time talking about the existing scrutiny process in this place and the importance of having a substantive vote. There is a real debate to be had about that, and I am certainly in favour of proper parliamentary scrutiny, but as I read the substance of his amendments I find that their potential impact is to trigger a referendum. That is of a wholly different order of cost and complexity, and it is likely to discourage the very act that we are discussing. In fact, his proposals would probably stop any measure coming before the House for a vote at all, because it would be deemed impractical to go through a referendum.

[Mr Clappison]

The hon. Gentleman makes a fair point, and my hon. Friend the Member for Daventry, who made an extremely good case, will have heard what he said and decide whether to press his amendment to a vote. I take it from what the hon. Gentleman says about proper parliamentary scrutiny that that would include approval for a vote in the case of opt-in, however, because it is no use having just scrutiny, talk and the expression of opinions; we need to have a vote each time an opt-in takes place. I am open to correction from him through another intervention, but I take great heart from what I think he says about regarding a vote on an opt-in as a part of scrutiny, because there is not much point in scrutiny unless we can vote. I think that he agrees, so that is a great step forward. He made some very good points—fair points—about referendums, and I ask my right hon. Friend the Minister to reflect on those matters, because they are important decisions.

--- Later in debate ---

[Austin Mitchell]

My hon. Friend is absolutely right, as usual. The key is the ability of a nation to control its own waters up to the 200-nautical-mile limit, which it would have been sensible to retain, and which we could have retained had we negotiated harder in 1972, but we did not. Only a nation can conserve its own national resource—what is handed on to the next generations of fishermen. The Heath Government made a tragic decision from the point of view of the fishing industry. I want to reverse that, and we should work to do so. I still want to pull out of the common fisheries policy. Perhaps it would require a few gunboats around the coast to establish that.

[Martin Horwood]

I understand the hon. Gentleman’s point, but does he not fear that if we returned fisheries entirely to national competence, not every nation would be quite as observant of their own rules as the Norwegians, and there might be a free-for-all that would fatally damage the British fishing industry?

[Austin Mitchell]

That, of course, is nonsense, because nations that have taken control of their own waters and their own 200-nautical-mile limit, such as Iceland, have operated very good and effective conservation policies. It is only nations that have to admit other nations into their waters, under force of European law, that cannot do that.

--- Later in debate ---

[Kelvin Hopkins]

I support my hon. Friend, yet again. Clearly, it is simple to monitor what is landed in one’s own country, but impossible to monitor what is landed in another country. If we had our own fishing waters with our own fishing vessels—

[Martin Horwood]

Spanish fleets.

[Kelvin Hopkins]

Spanish fleets would not fish in our waters, because the idea is that countries would fish in their own waters. I cannot see the problem and I agree with my hon. Friend.

[Austin Mitchell]

My hon. Friend is absolutely right. The Liberal Democrats are slavish in their idealism of Europe at any price, and will abdicate any British interest to express their devotion to the nefarious construction called the European Union.

[Martin Horwood]

rose—

[Austin Mitchell]

If the hon. Gentleman wants to express more devotion to the farce of the European Union, he is welcome to do so.

[Martin Horwood]

I am just intrigued about precisely what method the hon. Gentleman would use to defend our waters. The Icelanders use gunboats. Is he advocating gunboat diplomacy from the Labour Benches?

[Austin Mitchell]

Frankly, yes. However, I am sure that the hon. Gentleman is not so distrustful of our European partners and friends that he believes that if we took legal control of our waters, they would come in and try to steal our fish. Is that his estimation of their character? Is he telling us that there are nations of thieves that would come in and steal our fish if we took our own waters, as is our right? Is that what he is saying? Apparently not.

Amendment 81 expresses an important principle that we need to express and defend constantly. The amendment is a way of defending that principle, so I shall certainly vote for it if it is put to the vote.

I shall move on to amendments 8 and 79. I congratulate the hon. Member for Stone (Mr Cash) in drawing the attention of the Committee to this situation, because it is extremely dangerous from a British point of view. He said essentially that we will be liable, under article 122 of the treaty on the functioning of the European Union, for difficulties produced by the failure of the euro, and that we will have to make a contribution. That will be decided on by qualified majority voting. If correct, that is an appalling situation. It is important for the Government to tell us tonight whether it is correct.

In my view, one of the greatest achievements of the previous Prime Minister was that he kept us out of the euro when he was Chancellor, against the overwhelming enthusiasm of the then Prime Minister, who saw joining the euro as a romantic gesture of support for Europe—almost an emotional spasm of support for Europe—against the wishes of the majority of the Cabinet, and against the pressure of the Liberal party, which has always been slavishly devoted to any European instrument, however damaging the consequences.

[Martin Horwood]

indicated dissent.

--- Later in debate ---

[Austin Mitchell]

That is true—and then the EU forces us to eat its overpriced agricultural products. The EU gets it all ways. It steals about £3 billion-worth of our fish every year through the common fisheries policy, and costs us about £18 billion on the common agricultural policy, and then expects us to buy its overpriced exports.

[Martin Horwood]

Is the hon. Gentleman aware that Iceland has just unilaterally increased its mackerel quotas, which if anything—I would not use the word “stealing”—is potentially damaging to Scottish fish stocks? That is quite a major diplomatic issue at the moment and it has occurred under precisely the regime that he is recommending.

[The Temporary Chairman (Mr Graham Brady)]

Order. May I suggest that we are ranging a little wide? Ranging as far as discussing Iceland might be out of order.

--- Later in debate ---

[Stephen Gilbert]

I am grateful for that intervention and I am sure that the fact that the Committee will look at this issue will be as worthy of note as the fact that I have joined hon. Members from both sides of the House in signing the early-day motion on discards policy. On every occasion that this House has debated the CFP, a clear signal should have been received by Ministers that we want reform and we want it now. However, amendment 81 is not that reform.

It is clear that negotiations on the CFP will start later this year. I would like an assurance from the Minister that he has heard the concerns that have been expressed in this debate and will put protection of the UK’s fish stocks at the heart of those negotiations.

[Martin Horwood]

What is my hon. Friend’s opinion on some of the other amendments that have been tabled? Does he think that reform of the CFP might be made more difficult if we have such a hair trigger for referendums that it brings the whole process grinding to a halt?

European Union Bill (Programme)(No. 2)

Martin Horwood Excerpts

Monday 24th January 2011 Commons Chamber

[Martin Horwood (Cheltenham) (LD)]

I will not often rise in sympathy with the hon. Members for Wellingborough (Mr Bone) and for Stone (Mr Cash) during the passage of the Bill, but I share some of the fears that they have expressed. One is that, as the hon. Member for Birmingham, Edgbaston (Ms Stuart) and others have said, some very significant issues might not be reached today, especially in light of how the grouping of the amendments has panned out.

I am obviously not criticising Mr Speaker at all, but he has wisely included a very large number of amendments in the first group, covering three different clauses and various arguments. I suspect that that is likely to lead to a long and convoluted debate. That will almost inevitably take up a large part of our time, so we might not reach issues such as enlargement, which, as the hon. Lady said, could be very significant.

My other fear is that debates such as today’s, by their nature, can sometimes be hijacked by what one could unkindly call filibustering. Reference has been made to the shenanigans up the corridor in the other place in recent weeks, which I am afraid are not an enlightening example of how to conduct parliamentary business. If the other place has traditionally conducted itself in a more gentlemanly way, with such things not being allowed to disrupt debate, it has certainly failed that test in recent weeks. I therefore reluctantly accept that there is an argument for having guillotines and knives, to prevent a debate of such importance from being hijacked in that way.

However, I ask the Minister to reassure all of us that, as the hon. Member for Birmingham, Edgbaston said, if significant issues cannot be debated today and are cut off by the guillotine, we will have some opportunity to address them later in the process, at the very least by allowing significant time on Report. I hope that the Minister will welcome debate on enlargement in particular at that time.

European Union Bill

Martin Horwood Excerpts

Monday 24th January 2011 Commons Chamber

[Mr David]

What I am saying is that if some of the questions implied by the Bill were put, no reasonable human being, including Members in this House, would understand what on earth the debate was all about. Nobody would. Debating how many angels can stand on the head of a pin might be okay for the middle ages, but it is unlikely to enthuse people in 21st century Britain.

[Martin Horwood (Cheltenham) (LD)]

I may well be more in sympathy with the hon. Gentleman’s position than some of my colleagues on the Government side, but is he not aware—I appreciate, as he said, that he might have some difficulty understanding all of the Bill—of the “significance” provision in clause 3(4)(b)? Surely that is designed to guard precisely against the possibility of having referendums on minutiae.

[Mr David]

It is interesting to hear the hon. Gentleman refer to the exceptional clause in that way. I will come on to the very interesting point that he has raised, which I am sure would not be shared by many Conservative Back Benchers.

Let me pursue my argument. These two factors—the lack of proper debate that having a referendum on a small technical issue would mean, and the low turnout—might lead to a questioning of any referendum result. For example, I cite Professor Hix again in his evidence to the European Scrutiny Committee, when he referred to the example of Texas. I heard a Government Member earlier making a sedentary comment about the USA, so let us look at this example from Texas. It has referendums in local communities on whether smoking or drinking should be banned. I am sure that everybody understands the questions, but they have a referendum on the same issue every year. Why? It is because people keep on questioning the validity of every year’s result because the turnout is so low.

The Bill implies that this Parliament can bind future Parliaments, but we all know that this cannot be done constitutionally. It is an interesting point, as the Government have made it clear that they do not intend to test the legislation. Perhaps one of their amendments might do so, but generally speaking, they do not intend to use this legislation—it is intended for something in the future. I would argue very strongly that there is a constitutional question mark over that.

I also believe that the Bill weakens the role of Parliament because it obliges Parliament to pass on much of its decision-making capacity. Yes, it is true that the Bill gives additional responsibilities to Parliament in some areas, which we will debate at a later stage. The Bill’s most important impact, however, will be to weaken the role of Parliament. I would even suggest that the Bill’s whole approach is crudely populist and fraught with practical problems and constitutional risks.

--- Later in debate ---

[Mr David]

No, I have made my decision.

I have referred to the significance provision but, as if that were not enough, the Bill also contains the exemption condition. If the significance provision is the smoke, the exemption condition is surely the mirrors. With a striking lack of clarity, clause 4(4) refers to “the codification of practice”—one hon. Member mentioned that earlier. That could lead to a significant extension of competences by European Union institutions, yet the Bill does not provide for a referendum on such matters.

Clause 4(4) then stipulates that changes that apply

“to member States other than the United Kingdom”

should not attract a referendum. That may appear reasonable but, given that this country is an integral part of a single European market, it is impossible to say with any degree of certainty that anything happening in the rest of the European Union would not have an important impact on this country.

In addition to all that is the most amazing exemption. In a Bill that claims to be about giving the electorate the ability to make decisions on important changes affecting this country, the

“accession of a new member State”

is expressly excluded in that regard; accession will not trigger a referendum. Where is the logic in saying that we can have a referendum on whether or not a voting system should be changed for the appointment of judges, but not on whether Turkey joins the European Union? Does the Minister seriously suggest that Turkey joining the European Union would be of no consequence? Does he seriously believe that the membership of Turkey, a country of more than 70 million people, will not affect the United Kingdom’s vote in the Council of Ministers? The Minister is a nice chap, but surely he cannot honestly believe that Turkey’s membership will not have a significant impact on Britain’s role in the European Union?

[Martin Horwood]

I understand the point that the hon. Gentleman is making, but surely the issue under discussion is the transfer of power to Europe and that transfer triggering a referendum. What powers does he think would be transferred from the British to the European level in the event of Turkey joining the European Union?

[Mr David]

The ultimate decision-making body in the European Union is the Council of Ministers, where, broadly speaking, votes are exercised according to the size of a country relative to other countries. I am suggesting that if a large country such as Turkey joins the European Union, the influence of the United Kingdom will inevitably diminish—that is absolutely simple and straightforward. Given the logic of the Government’s argument for this Bill, I find it incredible that that circumstance is painfully excluded.

--- Later in debate ---

[Mr David]

I do not think that it is.

Members have asked about our rationale in tabling the amendment. I believe that we have explained it logically and systematically, but I ask the Minister: what is the Government’s rationale in specifically excluding a referendum on accession? Will the Government respond to that? What is the rationale? This is a debate but there is silence from Government Front Benchers—I can only conclude that there is no rationale. There is not, is there?

The situation is quite simple. The Government want Turkey to join the European Union. They consider that to be of tremendous foreign policy importance and they will not allow a referendum to get in the way. That is the truth and they should accept it.

[Martin Horwood]

First, I apologise for saying that I was in sympathy with the drift of the hon. Gentleman’s argument. I am certainly not now. I am very puzzled. A minute ago, he was arguing that we should be wary of having too many referendums. He now seems to be arguing for another one. Does he want more or fewer referendums?

[Mr David]

Once again, the hon. Gentleman is not following the debate very closely. What we are saying is that these issues should be considered—watch my lips—carefully by a special committee drawn of both Houses. What we are against is a predetermined conclusion that, irrespective of the circumstances, there should not be a referendum on Turkish accession. Although I challenged the Minister to explain the rationale, he declined to do so. I am sure the Committee will draw its own conclusion.

--- Later in debate ---

[Martin Horwood]

Is not the logic of the hon. Lady’s position that the significance condition in clause 3, talking about the simplified original procedure, should have been in clause 2 and then applied to all issues relating to referendums? Why, then, was that not a Labour amendment instead of the rather strange committee-based structure that Labour Front-Bench Members have proposed?

[Ms Stuart]

There are plenty of inherent inconsistencies both in the original Bill and in the amendments. I was involved in the tabling of amendment 11, which makes it clear that if there is any doubt, it should be resolved by this House.

As a final observation, in our Parliament, the Executive always has a permanent majority. We can rely on the strength of this House only if there are sufficient Back-Bench Members who defy their Front-Bench Members. I see the Conservative Benches full of Members, so let me point out frankly that tonight provides them with a chance to show whether they have the guts and the courage of their convictions. They said all sorts of things in the process of their election and now they have an opportunity to defy their Front-Bench team, support an amendment tabled by a majority of Members of their own side and restore faith to this place.

--- Later in debate ---

[Martin Horwood]

rose—

[Charlie Elphicke]

rose—

[Mr Clappison]

I shall give way first to the hon. Member for Cheltenham (Martin Horwood) and then to my hon. Friend the Member for Dover (Charlie Elphicke), who has been waiting very patiently.

[Martin Horwood]

Surely the whole point of the simplified revision procedure is that it relates to changes that are relatively uncontentious and therefore insignificant. That is quite an important factor. Moreover, as even those changes will require an Act of Parliament, they will be subject to a vote in the House of Commons.

[Mr Clappison]

We have just been debating the hon. Gentleman’s second point, but I shall say more about it shortly. However, I think that if he studies the Bill he will find that if he votes in favour of the clause, he will be voting in favour of the possibility of a referendum if the Government consider the effect of the provision concerned to be significant enough. It is not a question of whether it might be significant enough, otherwise the clause would not be in the Bill. If a Minister says that it is significant enough there will be a referendum, and I welcome that. It is a question of how we decide whether it is significant enough for a referendum. Should we leave that decision to a Minister, or should it be made by means of a vote in the House of Commons and the other place?

[Mr Clappison]

It would be a matter for this House and the other place to express their opinion and to vote for a referendum. That is in addition to all the other procedural steps contained in the Bill. It is not a case of either/or. We propose a further process: indeed, a further safeguard against the granting of significant powers to the European Union, as well as the powers for which the Bill already provides. I know that my hon. Friend is concerned about that issue.

[Martin Horwood]

rose—

[Mr Clappison]

No doubt the hon. Gentleman will try to persuade me that the Bill does not say that that is significant enough for the holding of a referendum. I think that, if he reads the Bill carefully, he will find that it is.

[Martin Horwood]

The hon. Gentleman is being very generous with his time.

Surely even provisions that the Minister considers to be insignificant must be subject to a vote in the House of Commons, as an Act of Parliament will still be involved, and surely the backstop referred to by the hon. Member for Dover (Charlie Elphicke) is the ability of Members to vote against the Bill concerned and defeat it if they disagree with it so strongly.

[Mr Clappison]

I do not wish to be unkind to the hon. Gentleman, but I believe that I dealt with that point in my reply to my hon. Friend the Member for Dover. As I have said, this is not an either/or situation; the amendment provides an additional safeguard. I repeat that the powers that are transferred may or may not be significant, and this House and the other place may or may not vote in favour of the transfer. It is a question of whether the decision is made by Parliament or by an individual Minister—a Minister of the Crown, as the Bill puts it.

--- Later in debate ---

[Nia Griffith]

The hon. Gentleman raises a significant point. One difficulty about European legislation is that dealing with these issues often takes an enormous amount of time. Often, developments take place over a considerable amount of time whereas a referendum gives a snapshot of the mood of the country at one time. That might mean that people vote on different issues. It is important that the committee would have the opportunity to go through the issues and decide what is and what is not important. The hon. Gentleman knows as well as I do the situation in respect of Europe, what has to be decided and how it has to be ratified.

[Martin Horwood]

Given that we are all agreed that any change would be subject to an Act of Parliament, what is to stop Parliament as a whole subjecting the change to such scrutiny and even possibly suggesting an amendment on a referendum as the Act went through? I am sure there would be many volunteers on the Government Benches to draft the amendment.

[Nia Griffith]

Perhaps it would be better to have a cross-party committee and to take the matter away from the partisan approach. There are many areas on which there is cross-party agreement on Europe and many issues on which feelings are not particularly partisan. I suspect that there are more differences between Members on the Government Benches than there are between Members on the Opposition Benches and others on the Government Benches.

--- Later in debate ---

[Charlie Elphicke]

I entirely agree with the hon. Gentleman. My central concern with clause 11 is that a Minister could say, “This isn’t significant,” and sign over some massive power. The Act of Parliament will then be whipped and rammed through both Houses. An individual, perhaps a constituent of mine in Dover, might then take issue with that because they think that it is significant. How will that constituent have a say? The Bill’s current protection is judicial review, but if we had a whipped vote of both Houses and a resolution that the matter was not significant, that would weigh in the minds of the courts.

I will go further: on this matter I am a renegade among many of my hon. Friends who say that the courts have no place interfering in the business of this House. I am an old-fashioned lawyer, and I take the view that the courts are an important check and balance in our democracy. Perhaps it is just me, but in respect of our political system wishing to ram something through and take away our rights, I always thought that the purpose of the rule of law was to hold back the Executive and act as a check and balance. The purpose of the rule of law—I think this started with Magna Carta, and it has continued in legal documents written since—and the purpose of the courts is to hold back that express, overweening Executive power and ensure that the subject has their say and stands up for their rights. I do not seek to oust the jurisdiction of the courts in determining whether a significant condition has or has not been met, which I think is an important part of the Bill and an important check and balance.

[Martin Horwood]

The hon. Gentleman is making a powerful case, but surely the ultimate sanction should not be with the courts, but with Parliament. Having an Act of Parliament as part of the process must be the check. He is not really describing a legal check on the Executive; he is implying that it is a legal check on Parliament, which surely rather threatens the constitutional arguments that some of his hon. Friends made last week in relation to the Bill.

[Charlie Elphicke]

My hon. Friend makes a fair point, so let me to clarify my position. We will hopefully have an Act of Parliament that will state that there will be referendums in the case of matters that are of significance. A Minister might then come along and say that he does not think that a matter is significant. An individual will be able to go to the courts to seek a judicial review, saying that they think that the matter is significant on objective criteria. The court will then rule on that ministerial decision. That has to be right.

--- Later in debate ---

To make matters worse, we would be asking Parliament to decide what was substantive and what was not. That is also the problem with amendment 11, which would lead us into trouble and is also unnecessary. As I have said, Parliament will have to pass Acts if there are substantive changes, or any changes at all that affect our relationship with the European Union. New clause 9 is slightly misleading. The Opposition want to look as though they wanted referendums, but the new clause would make it possible not to have them at all, which is wrong.

[Martin Horwood]

There has been some discussion about the risk of votes being whipped. Does my hon. Friend agree that there is a greater risk of a vote in committee being whipped under the system that Labour Members propose, because the Executive can handpick the membership, than there is for a vote on the Floor of the House?

[Neil Carmichael]

Yes. My hon. Friend the Member for Dover went through the possible Members who could serve on the proposed committee, obviously with a slant towards those who are participating in the debate and are interested in the European Union. The point is much the same—the committee’s membership would matter. The shadow Minister has not explained how it would be formed, managed and so on. However, we can assume that whipping would take place. That is not helpful.

I am also concerned about the role that new clause 9 would give the House of Lords, given the events of the past few weeks. We need to put that down as a marker when considering how the Bill would unfold if new clause 9 were accepted.

My hon. Friend the Member for South Swindon (Mr Buckland) is concerned about timing. He is absolutely right. He is a lawyer, and lawyers love time. [Interruption.] I have watched the clocks tick by myself. New clause 9 does not deal with that.

I tabled an amendment to get clarification on what constitutes a decision in the context of the outcome of a European Council meeting. That is important, and I hope that the Minister, when winding up, will explain what sort of decisions we should consider following a European Council or a meeting of the Council of Ministers, and when a decision is actually a decision.

We must acknowledge that the Bill will be seismically important to our relationship with Europe. It will also make a dramatic difference to the way in which the House and the Government deal with Europe in connection with the electorate. Far too often, people have found out about decisions some time afterwards. They have not felt included in that decision making, and consequently and because of their concerns, they have felt angry about the decision.

I am convinced that we will shape a much better relationship with Europe if we have the courage to explain more and to engage people more effectively. The Bill will do that without new clause 9 and other amendments that would stop us from ensuring that Parliament is the first port of call for the necessary key decisions, and that the people are always consulted when those decisions are pivotal.

--- Later in debate ---

[Kelvin Hopkins]

Indeed. The hon. Gentleman is right again. Many of those who protested most strongly against matters in the European Union are people of the left—trade unions, working-class people, the unemployed, minorities and so on. We should not portray a right-left divide; the debate is about democracy and what works.

[Martin Horwood]

Is not the lowest unemployment in the European Union in Germany? Last time I looked, it was in the eurozone. Are not the countries that are particularly vulnerable those with large structural deficits? The problem is not particularly to do with their membership of the euro.

[Kelvin Hopkins]

That is interesting. We could have a long debate about the strength of the German economy relative to other countries in Europe. One thing that Germany wanted from the European Union was to get rid of barriers to its exports, particularly to France. Germany focused its efforts over generations, from Erhard onwards, on wisely ensuring that it had a massive and strong manufacturing base. We have not done that. If we had shown more of an Erhard approach to our policies—and Erhard was no socialist, but a Christian Democrat—we might have had a stronger economy.

As part of the post-war settlement, it was important for the west that West Germany—like Japan—succeeded, so it was allowed for a long time to have an undervalued Deutschmark, which gave it a competitive edge, behind which it built massively strong industries. That is the history. If one looks at the documentation—I used to write and read a lot about such things—one will see that the German surplus was a problem even in the 1970s. It has managed to sustain that for all that time, which was wise. Had we been a bit wiser, we might not have been in quite the weak position that we are in now. Every second car driving along the road is made in Germany, but where has our motor industry gone? We still have some of it, but it is nothing like Germany’s. Germany has been very clever, and I cannot blame it at all.

--- Later in debate ---

[Michael Ellis]

I am afraid that that is not relevant to the Bill.

Matthew d’Ancona has said:

“Imperfect though it may be, the bill is a dramatic punctuation mark in the history of Britain's relationship with the European Union.”

Opposition Members ought to accept that. They ought to acknowledge that the Bill is a ground-breaking, landmark piece of legislation which will do that which has not been done in this country for decades, and give the general public the rights that they so obviously desire in relation to the European Union and further expansion of its powers.

[Martin Horwood]

Thank you for calling me, Mr Brady. It is a pleasure to serve under your chairmanship for, I believe, the first time.

Let me begin by saying, as a Liberal Democrat, that my perspective on Europe is subtly different from that of some of my Conservative colleagues. However, I am at one with them in believing that the debate is crucially important, and that it goes to the heart of our democracy at both United Kingdom and European Union level. I think it important for these issues to be debated.

It is a matter of some pride to me that most of the robust intellectual debate seems to have taken place on the coalition Benches, although there have been some quality interjections from Opposition Members, most of whom are not present now. Partly for that reason, I think that amendment 11 is unnecessary. Every treaty change suggested in the Bill will be subject to debate and vote in the House. As was pointed out by the hon. Member for North East Somerset (Jacob Rees-Mogg), who is no longer in the Chamber, an Act of Parliament is the ultimate constitutional lock. It is unlikely that the Whips could somehow force through such proposals, especially given what has been said today. One of the healthy features of the coalition—I say this with the most deferential respect to my very good and right hon. Friend the Member for Orkney and Shetland (Mr Carmichael)—is that the Whips do not seem to have quite such a stranglehold on debates and votes as they did in the last Parliament, of which I was a Member—

[Mr Cash]

rose—

[Martin Horwood]

I see no signs of the hon. Member for Stone (Mr Cash) giving way to the Whips on anything. Meanwhile, I happily give way to him.

[Mr Cash]

Leaving that aside, let me suggest that, according to the sequence of events provided for by the excellent amendment tabled by my hon. Friend the Member for Hertsmere (Mr Clappison), the question of the Minister’s motion and its approval by Parliament will arise before Third Reading, and almost certainly before Report. For practical purposes, therefore, the House of Commons will have decided the question. Surely the hon. Gentleman is not honestly suggesting that, its approval having been required, Parliament would vote against the proposal on Third Reading. Surely that would not make sense.

[Martin Horwood]

I do not quite follow the hon. Gentleman’s argument. I suspect that the Minister’s decision would almost certainly precede even First Reading. Following the introduction of a Bill and after the Minister had decided whether the proposed change was significant, it would be up to Parliament to amend the Bill and call a referendum if by any chance it considered that necessary. As has already been pointed out, this Parliament cannot bind its successors.

In view of the time, I intend to concentrate on the amendments tabled in my name, but I also want to say a little about the Labour amendments. The hon. Member for Caerphilly (Mr David) said, rather harshly in my view, that the coalition was displaying—I think that I am quoting him correctly—weak-kneed, ill-thought-out populism. May I indulge in a gentle return of serve? The Labour party seems to have tried to find some reasons to oppose a Bill that it obviously wishes it had thought of first, come up with a number of reasons that appear to be mutually contradictory, and settled on the grand solution of a committee that it cannot explain.

I think that if anyone is guilty of ill-thought-out populism, it may be Labour Members. As has been eloquently pointed out by the hon. Members for Stroud (Neil Carmichael) and for Daventry (Chris Heaton-Harris) and many others, Labour’s proposed committee would make things less transparent and less democratic. A real habit of the previous Labour Government was removing powers from primary legislation and handing them to committees, to commissions and even to Ministers. These things were not coming back to this place to be voted on; they were often disappearing altogether.

[Geraint Davies]

Does the hon. Gentleman accept that if the number of referendums available in this Bill were available to every country in the EU, the EU would grind to a standstill—the situation would be completely ridiculous? How can he be an honourable Liberal Democrat and support that?

[Martin Horwood]

The hon. Gentleman might want to listen to the rest of my speech, because there is some risk of what he describes, and that is the thrust behind our amendments.

Amendments 67 and 68 may look drastic to some of our Conservative colleagues, because they seem to remove a swathe of the referendum provisions from the Bill. However, they seek to tease out the rationale for the referendum lock in the case of amendments to the treaty on the functioning of the European Union using the simplified revision procedure. The amendments do not relate to referendums on changes to the treaty on European Union or even to referendums on changes to the treaty on the functioning of the European Union that do not use the SRP. So the amendments do not seek to remove referendums altogether from this Bill; they ask whether referendums on treaty changes under article 48(6) of the treaty on European Union—the simplified revision procedure—which, after all, was created for relatively uncontentious and insignificant changes in the functioning of the European Union, are really justified.

As a small aside, may I ask the Minister to explain why “transfer” of power or competence “to” the EU is used in the explanatory notes and in some of the language associated with the Bill, rather than “pooling” or “sharing” powers and competences “with” the European Union, which has been the established language until now? To those of us who are fairly relaxed about pooling sovereignty and powers with the European Union when it is right to do so, “transfer” sounds a slightly more pejorative term and its use an example of linguistic drift.

[Mr David]

The use of the language is important, because the rhetoric has changed and the Opposition contend that the substance has not.

[Martin Horwood]

That stretches credibility somewhat. The hon. Gentleman has heard in many eloquent speeches from Members on the Government Benches how important the Bill is to our relationship with the European Union and how it offers the possibility of reconnecting the British public with the decision-making processes in the European Union. It is beyond doubt that the Bill will be a significant piece of legislation.

[Mr Jenkin]

The hon. Gentleman asked the Minister why the Bill’s language is about the “transfer” of competences, rather than the “pooling” or “sharing” of competences, which has been the language used previously. I put it him—the Minister might not put it this way—that the notion of “pooling” or “sharing” competences does not fully explain what has been happening over the years and that those are weasel words. A competence “shared” is, in fact, a competence transferred and a competence fully transferred is not even shared. The correct word to use is “transferred” and I give the Minister credit for doing that.

[Martin Horwood]

The hon. Gentleman makes a powerful response on behalf of the Minister, but I would say that “transfer” implies a total handing over, not just a partial one, of some UK sovereign powers, as if the European Union were some kind of imperial entity of which this country is a humble subject. That may be what some Conservative Members fear but, as I hope the Minister will confirm, the reality is that the vast majority of powers and competences in the European Union are not exclusive EU competences, but competences shared with member states or merely competences to support inter-state co-operation. We have only to consider an issue such as the environment and climate change to realise that we cannot really transfer competence over that to the European Union alone, because such an arrangement simply would not work.

[Mr Jenkin]

I am glad that the hon. Gentleman referred to “exclusive” competences. Surely if the EU has gained an exclusive competence, a transfer certainly has taken place. A competence shared with the European Union usually results in European Union legislation. Once the European Union has legislated, it has occupied that policy—that part of the field of legal competence—and the doctrine of the European Court is that the EU cannot give that back; the policy can only then be delegated back to the member state. So “transferred” is a good word to have in the Bill.

[Martin Horwood]

I disagree with the hon. Gentleman’s perspective. He speaks as if the European Union were somewhere else, but we are part of the European Union. Even the hon. Gentleman is a member of the European Union.

[Mr Jenkin]

I certainly am not.

--- Later in debate ---

[Martin Horwood]

Whether the hon. Gentleman likes it or not, as regards formal influence we are one of the four largest member states in the Council and in the European Parliament. In informal terms, we have done remarkably well in supplying civil servants, not least in the new External Action Service, and we have hundreds if not thousands of British citizens working in one way or another within the European Union structures. We do not hand over powers or competences and then have no say on them. On the contrary, as one of the largest member states we have a leading role in the EU. It includes us—and that includes the hon. Member for Harwich and North Essex (Mr Jenkin) and all his hon. Friends. It is not an alien or a foreign body invading our body politic, but a union of all the peoples and nations of Europe.

You will be able to tell, Mr Brady, that I am less convinced of the need for onerous checks and balances than some of my colleagues, but I would like to say that I am cautiously supportive of the overall direction of the Bill. There is little secret that Liberal Democrats alone would probably not have thought it absolutely necessary, but we recognise its importance to Conservative colleagues. Without doubt there is a disconnect between the British public and the decisions made in their name regarding the part that Britain plays in the European Union.

[Mr Cash]

Does what the hon. Gentleman just said bear out what we heard from Lord Mandelson, which is that even at the last minute, after the coalition had been to all intents and purposes stitched up, the hon. Gentleman’s leader, the Deputy Prime Minister, was still on the phone to the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown) to ask whether he could achieve any further manoeuvring in relation to the European Union?

[Martin Horwood]

My suspicion is that that is very unlikely to be true, but I suggest that the hon. Gentleman consult Lord Mandelson’s memoirs to find the authoritative account.

There is no doubt that there is a real disconnect between the British public and the decisions made at a European level and an even bigger disconnect between British parliamentary and political life and the workings of the European Union. I am a long-standing pro-European and I have been supportive of many of the important and necessary treaty changes that we have seen in the post-war era. Even as a pro-European, however, I must reflect on the fact that that process has left something of a rift—a democratic deficit—between the British public and the European Union. I hope that many of the provisions for new democratic safeguards and checks on the power of the Executive over major decisions on future UK/EU relations in this Bill will go some way towards filling that void.

It is also worth reflecting on the fact that the Bill’s direction is complementary to many of the innovations in the Lisbon treaty. That is important as regards amendments 67 and 68. The UK is not alone in the Union in recognising that the pace of EU integration has left a dangerous lack of understanding and a disconnection between EU institutions, national Parliaments and European citizens. In fact, I think that was recognised by all EU member states in the Council, by members of the Commission and by Members of the European Parliament long before the Bill was conceived. That concern was translated into quite concrete measures in the Lisbon treaty.

I welcomed those changes in the Lisbon treaty and I guess it is too early to tell how well they will work, but the direction in which the Union is moving is clear. That might render unnecessary the calling of a referendum in all the cases envisaged by the Bill, hence amendments 67 and 68. The Lisbon treaty innovations, which were obscured in the haze of media and Europhobic hysteria about the treaty, should be seen as the foundations on which this Bill is being built. Let me remind the House about some of those innovations, which dovetail closely with the provisions in the Bill and necessitate a certain restraint in calling a referendum on everything that moves—a restraint that we have tried to articulate in amendments 67 and 68.

[Mr Cash]

Is the hon. Gentleman aware—I am sure that he is, and perhaps on reflection he might like to retract those remarks in the light of the fact that he is sitting in such close proximity to the Minister for Europe—that the same Europhobic utterances to which he is referring were reflected by the entire Conservative party, in unity, opposing every aspect of the Lisbon treaty and insisting on a referendum? I know that his hon. Friends were not doing so; this so-called temporary alliance looks as though it has quite a few splits in it.

[Martin Horwood]

What we have is not a temporary alliance with splits in it, but a business arrangement between two parties with very different traditions and very different views on Europe. The refreshing thing about the coalition, in contrast to Labour when it was in government and there were accusations of psychological disturbance and all sorts of things going on behind the scenes, is that we at least can be open and honest about our different traditions and perspectives. It is to the credit of the coalition and of the Minister that we have managed to create a Bill that largely satisfies both sides.

[Claire Perry]

Will my hon. Friend therefore take his argument one step further and recognise that although we may have political differences within the coalition, and there are certainly differences across the Floor, the point of a referendum is that it is not for us to have a conversation endlessly into the night about what we care about? It is about trusting the people and listening to the voices of the people, which is a tradition that both Conservatives and Liberals share.

[Martin Horwood]

Indeed. That was well put and brings us back to the subject of the Bill and the amendments, which is probably just as well.

I remind the Committee again of some of the provisions of the Lisbon treaty that dovetail with the Bill, and which should give us pause for thought about whether referendums are necessary in all the cases set out in the Bill. Do we need such a hair trigger for referendums when there is the forthcoming European citizens initiative provided for in the Lisbon treaty, which will allow a petition of 1 million European citizens from across the member states to trigger a legislative proposal from the Commission? That is a unique, ground-breaking innovation expressly designed to develop connections between European citizens and the apparently remote EU institutions.

Do we need a referendum at the drop of a hat, or even of a beret, when the Lisbon treaty has created the new yellow and orange card system, which enables one third of national Parliaments—in Britain, this would be done through the scrutiny Committees—to object to an EU proposal if they feel it breaches the principle of subsidiarity? That will require the Commission to reconsider the proposal or force the Council and European Parliament to come to a decision on whether to scrap the proposal or amend it. Do we need to provide for so many referendums, when the new emergency break clauses in the treaties provide national Parliaments and member states with far greater powers than ever before to block a proposal if they consider it to breach or contravene a fundamental component of their domestic legal framework?

Because it is so pertinent to the amendments, I should be interested to know the Minister’s view of how well that new yellow and orange card system is being applied by our own Parliament’s scrutiny Committees. Such innovations could reassure people and remove the need for a referendum on the slightest technical change. Is the Minister aware of any efforts by those Committees to create their own connections with parallel committees or bodies in other European states, or any system of co-ordination with the national Parliaments in the other 27 member states with regard to the orange and yellow card system? That would start to give effect to the proposals in the Lisbon treaty.

Although I welcome the complementary nature of the Bill to the Lisbon treaty changes that seek to reconnect the public and Parliament, perhaps we can go further. That does not have to be in the form of endless referendums. Let me make a few concrete suggestions. Why not hold an extended annual debate on the Floor of the House on the Commission’s work programme, as we do on our own Queen’s Speech? That would seem to be an obvious and welcome opportunity for Parliament to debate the relative pros and cons of forthcoming proposals, and to offer suggestions to the Government of measures that the UK should seek to add to the Commission’s agenda or even delete from it.

Why not ask Ministers who are going to attend European Council meetings to give oral evidence in advance to their respective Select Committees? That would seem a logical way to engage MPs and Ministers with the major issues under discussion at EU level in their respective portfolio areas. Is not that a better way to deal with the many issues that will inevitably arise, some of them highly technical, rather than prompting a succession of referendums?

Finally, what about establishing portfolio-specific EU sub-Committees, such as those in the House of Lords, which we could do by adapting the remit of existing Select Committees? Will the Minister take those ideas into account and perhaps provide an initial response on their appropriateness in improving parliamentary scrutiny of, and engagement with, European matters?

[Mr Cash]

As Chair of the European Scrutiny Committee, I know that it is universally accepted on both sides of the House, as has already been expressed by the Minister and the shadow Minister, that the quality of analysis that we have given to clause 18 and those proposals has been excellent, and that view has been endorsed by many outside Parliament. I mention that simply because the hon. Gentleman is perhaps moving into territory that he might later regret.

[Martin Horwood]

I do not always agree with the hon. Gentleman, particularly on matters European, but I pay due credit to his Committee and its work. The level of scrutiny that Parliament now gives European matters is certainly on the increase, which is a healthy trend. I give due respect to him for that.

Amendments 67 and 68 would remove the requirement to hold a referendum on any treaty change under the simplified revision procedure that would pool or transfer power or competence from the UK level to the European level. They would not remove the new requirement for Parliament to ratify every treaty change through an Act of Parliament, so Parliament would have the opportunity to put back the requirement for a referendum if that was felt to be absolutely necessary.

The new procedure that the amendments would create for the UK to support and ratify a treaty change made under the SRP that had already been voted for in unanimity at European Council level would simply be for the Minister to lay a statement setting out what the treaty change was and for the Government then to bring forward primary legislation, which would have to be passed by Parliament. That would not touch the requirement for a referendum to ratify any major new treaty under the ordinary revision procedure.

As I have said, even the Act of Parliament under the SRP could ultimately include a referendum in a particular case. In tabling the amendments, the issue we are raising is whether it is advisable to use referendums on any—I stress “any”—transfer or sharing of power or competence with the EU. The provisions for a referendum lock set out in clauses 3 and 4 seem to cover more or less any future change by the SRP, regardless of its size, content, purpose, necessity, or indeed whether it is in the UK’s national interest.

I appreciate that the obvious counter to that train of thought is that if there is a good case to be made for a future treaty change, the Government and Parliament of the day should be able to make that to the British public, and I accept that there is a strong case for that on major questions. That case is perhaps made more strongly by Conservative Members than by Liberal Democrats, but I recognise that it is an important one. It might even include some issues such as EU membership for countries such as Turkey. My concern is whether referendums are the best way to approach any future change, even if it is only technical and insignificant.

[Stephen Gilbert]

One area of competence that the EU currently acts in but does not have defined is combating climate change. Does my hon. Friend agree that saying that we need a referendum when that activity becomes defined is a stretch too far?

[Martin Horwood]

That is a good example of how a completely uncontroversial and essentially technical change might nevertheless, if we are not careful, trigger a referendum. Like the hon. Member for Devizes (Claire Perry), I am an enthusiast for referendums in general and voted for one on the Lisbon treaty and for an in/out referendum at the same time, but those are undoubtedly significant changes.

The House of Lords Constitution Committee has noted more recently that there are some risks and costs associated with referendums. We have held just nine referendums since 1973, although only one has been UK-wide. The Committee conducted an in-depth inquiry on referendums in the UK last year, concluding:

“The balance of the evidence that we have heard leads us to the conclusion that there are significant drawbacks to the use of referendums”.

I do not sense any implied rejection of referendums per se, but there are arguments for using them with restraint and ensuring that they are limited to major issues.

Some of the drawbacks cited in the Committee’s report include, first, that referendums can undermine representative democracy—not a point that I necessarily agree with, but one that some Opposition Members have made; secondly, that referendums are costly—unarguably an important point in the current austere environment; thirdly, that voters show little desire to participate in them; fourthly, that referendums tend not to be about the issue in question—very likely with some of the technical issues in this case; fifthly, that referendums fail to deal with complex issues; sixthly, that referendums never “settle” the issue—despite expectations; and seventhly, that referendums are a “conservative device” or a block on progress. As a result, the Lords Committee concludes that referendums should be used on questions only of “fundamental constitutional change”. Some examples given are, rather alarmingly, referendums to abolish the monarchy, to change the electoral system for the House of Commons and to change the UK’s system of currency.

I have to ask the Minister whether including all SRP changes under the referendum lock in the Bill is in keeping with the Lords Committee’s detailed findings on the use of referendums. Given the current “treaty fatigue” throughout the European Union, SRP is highly likely to be the most common form of treaty change for the foreseeable future. It is highly likely also that future treaty changes will be relatively small and targeted affairs designed to tweak existing treaties rather than to rewrite them substantially. Is it not therefore highly likely that the referendum lock in clause 3 will capture highly specific, arguably complex, limited and uncontroversial treaty changes?

Such changes might, nevertheless, be urgent. For example, in 2007 my constituency was badly flooded, as was much of Gloucestershire, and we benefited significantly from European emergency funds. If, during any future emergency in a part of Europe which technically fell outside the fund’s scope, a treaty amendment were technically required, it would surely be uncontroversial and, in fact, very urgent, so would we seriously say to whichever stricken part of Europe was affected, “Fine, we’ll send aid from the European emergency funds, but we’ll just have to hold a referendum on it first”? That would be inconceivable. My example may be hypothetical, but it is not impossible to conceive of equally uncontroversial and desirable things that the referendum proposal might block completely.

Given the conclusions of the Lords Committee’s report on referendums, can the Minister reassure me that the provisions in clauses 3 and 4 will not produce a plethora of complex and costly referendums that exasperate the public, frustrate proper decision making at European level and are highly vulnerable to hijack by questions that are completely different from those on the ballot paper? Does he agree that the most appropriate democratic check on the use of article 48(6) is primary legislation, as it would give Parliament alone, as the representative of the people, the power to ratify those limited, specific and complex treaty changes that are likely to come under the use of that article?

On the complexity of the referendums that the Bill could produce, can the Minister provide the House with some examples of referendum questions that the referendum lock on SRP treaty changes might create? It is quite difficult to conceive of one so significant that it would justify the use of a national referendum. Can the Minister provide the House with an estimate either of the number of referendums that the Bill is likely to produce in the foreseeable future, or, if that means looking too far into the crystal ball, of the number of SRP changes that are currently in discussion at the European Council or expected to be in the near future? Most significantly in these austere times, can he indicate the expected cost of each referendum on current projections?

The Minister will be aware that the purpose of creating the SRP under the Lisbon treaty was to avoid the need for long drawn-out intergovernmental conferences and painful ratification processes in instances where EU member states wished to undertake targeted and limited treaty changes, particularly uncontentious improvements or enhancements to the workings of the EU for the benefit of all member states. I therefore have concerns over the inflexibility of the referendum lock, and what it will mean in practice. Will the Minister reassure me that the threat or fear of losing a referendum on a treaty change will not prevent future Governments from supporting even uncontroversial and popular changes, and changes that are in the UK’s national interest?

I point out to the Committee that on many occasions in the history of the UK’s membership of the European Union, it has been deemed in the UK’s interest to further pool powers and competence in the European Union. The most obvious example, which should be close to Conservative hearts, is the Single European Act, which was a massive shift away from unanimity voting and towards dropping national vetoes. The European Union was able to dramatically accelerate integration across the internal market—the basic economic rationale that I thought was shared across the coalition Benches. The forward-thinking move to pool and share powers and competence has been of huge economic benefit to the UK and the European Union as a whole. Can the Minister not think of potential instances in the future when further pooling of powers and sovereignty would be dramatically to the UK’s benefit?

In the light of the time and the desire for other Members to take part, I will cut short my planned remarks. In asking the Minister to consider amendments 67 and 68, I suggest that there is a risk of the Bill triggering, on a hair trigger, referendums on every conceivable issue. Liberal Democrat Members, who perhaps do not share some of the fears of those on the Conservative Benches, need considerable reassurance on that issue.

[Mr Jenkin]

I am most grateful to be speaking under your chairmanship, Mr Brady. I will endeavour to be briefer than some hon. Members have been this afternoon.

We are discussing the trigger for a referendum in the Bill. It is worth pointing out the undercurrent in this debate: some people are speaking because they do not think that there have been enough referendums and others are speaking because they do not want referendums. The official Opposition have got into a bit of trouble with their amendment. My right hon. Friend the Member for Charnwood (Mr Dorrell) had some fun at their expense, because they tried to present a set of amendments as pro-referendum when their record on referendums is rather lamentable—perhaps as lamentable as ours when we have been in government.

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[Mr Jenkin]

Amendment 1 would remove wriggle room for any Government by requiring a referendum on any new treaty. That was promised at the Conservative party conference, but it is not being delivered in the Bill.

I reiterate that if we want to protect ourselves from the consequences of the inclusion of fiscal union in the arrangements for the European Union, we need to separate ourselves considerably from all the other paraphernalia in which we are currently embroiled. Even the Liberal Democrats are beginning to talk about repatriation of powers on some labour market regulations, such as the working time directive. Incidentally, we were told that we had opted out of that, but it turned out that we had not—something else that we were right about when we debated the Maastricht treaty.

If we allow fiscal union to go ahead, it is inconceivable that it will not have an impact on taxation throughout the European Union. Taxation is already a shared competence. It is not difficult for the European Court of Justice to argue that, as tax union takes place in the euro area, in order to maintain a single marketplace and a level playing field—and all the jargon that is regularly used—it will enlarge the EU’s competences over taxation. That is inevitable. I am fed up with warning about what will happen and being proved right. It is time that the House acted on the warnings that it has been given for many years.

I want to consider amendment 11 and the test for significance. The amendment is in keeping with the spirit of the Bill. Its scope is narrow. Clause 2 covers “Treaties amending or replacing” the existing treaties. Clause 3 deals with amending the treaty on the functioning of the European Union. Each relies on clause 4, which provides for a whole lot of tests, including subsection (1)(i) and (j), which are subject to the significance test.

The problem with the significance test was best described by the European Scrutiny Committee. I appreciate that many of my colleagues say, “Oh well, that’s chaired by the hon. Member for Stone. What do you expect? It’s been completely hijacked by the ultra Eurosceptic extremists.” However, I invite hon. Members to consider the membership of that Committee. Its members are a pretty reasonable bunch of people. I happen to believe that my hon. Friend the Member for Stone is a reasonable person, too. Although some of the report was contested, paragraph 98 was supported unanimously by Labour and Liberal Democrat as well as Conservative members of the Committee. Paragraph 98 states, in bold:

“We think the possibility for successful judicial review of a ministerial decision whether a transfer of power under clause 4(1)(i) and (j) is significant will, in practice, be limited.”

That is based on evidence given to that Committee. The problem is:

“The expressions ‘if the Minister is of the opinion’ and ‘in the Minister’s opinion’ in clause 4(4) underline the subjectivity of the process and the difficulty of judicial review.”

My hon. Friend the Member for Dover (Charlie Elphicke) said that somehow Mr and Mrs Citizen from Dover can toddle into the administrative court to bring an action that threatens the whole Government’s policy when the Minister has opined to the House of Commons that something is not significant enough to attract a referendum. That is absolutely bonkers. My noble Friend Lord Rees-Mogg and Mr Stuart Wheeler are hardly two typical citizens—perhaps they are my hon. Friend’s constituents—but they have both failed to attract the attention of the courts or to engage them in such fundamentally political decisions. The phrase “in the Minister’s opinion ”clearly makes the decision political. It is a political problem. The skill of amendment 11, which stands in the name of my hon. Friend the Member for Hertsmere (Mr Clappison), is that it brings decisions home to the House of Commons, where political decisions should be made.

The main argument against amendment 11 is that judicial review is superior to the Government’s obtaining the consent of the House of Commons. We do not like rule by judges or judicial supremacy. We prefer democracy, which commends the proposal. The second argument against amendment 11 is even more bizarre.

[Martin Horwood]

Surely the hon. Gentleman will concede that under the Bill, every treaty change will be subject to a vote in Parliament, because an Act of Parliament will be required for every single treaty change, whether there is a referendum or not.

[Mr Jenkin]

I thank the hon. Gentleman for that, because it is the only other argument against amendment 11. He is saying, “You don’t need to bring a decision to the House of Commons, because you can’t get a treaty change without an Act of Parliament and the whole issue can be dealt with then.” However, that is an argument against clauses 2, 3 and 4. What is the point of the Bill? The point of the Bill is to bring matters to Parliament or to the people for decision before we legislate to enact a new treaty change. If the Government and the Committee do not accept amendment 11, which would transfer a decision from the courts to the House of Commons, why are we bothering with the Bill at all? The hon. Gentleman makes an argument against the Bill.

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[Mr Lidington]

I will make some progress, because many Members have spoken and made different points, which I want to answer.

As the Committee knows, a new system for treaty change was introduced by Lisbon: the simplified revision procedure in articles 48(6) and (7) of the treaty on European Union. That enables the European Council to amend those sections of the treaty on the functioning of the European Union that concern the single market, justice and home affairs and other internal policies. The Bill ensures that the method of treaty change, governed by the simplified revision procedure, is subject to exactly the same accountability and scrutiny as the ordinary revision procedure. The only difference is the significance test, which I will cover in detail later. In passing, I should say that article 48(7) decisions about moving from unanimity to qualified majority voting are caught by clause 6(4)(b) of the Bill and require both an Act and a referendum in accordance with schedule 1.

My hon. Friend the Member for Hertsmere (Mr Clappison) was right when he said that article 48(6) says that the simplified revision procedure cannot be used to enlarge the competences of the European Union. Although that is indeed written in the treaty, we have drafted the Bill to require British Ministers to examine even an article 48(6) proposal, to see whether, despite that treaty language, we would judge it to involve an extension of competence. If the British Government’s judgment was that it did, the referendum lock would apply in those circumstances.

Let me turn to the numerous amendments, many of which severely weaken the provisions of the Bill, either by watering them down so that they are toothless, or by extending them considerably beyond what the coalition programme for government promised. Amendments 67 and 68 would remove the referendum lock altogether, and require only an Act of Parliament to approve a transfer of power or competence from the United Kingdom to the European Union.

[Martin Horwood]

That is not an entirely accurate representation of amendments 67 and 68, which refer only to changes under the simplified revision procedure.

[Mr Lidington]

I was going to make the qualification that the amendment applies to measures within the simplified, not the ordinary, revision procedure. I think that that denies the public the chance to have their say on what are, ultimately, important decisions.

My hon. Friend the Member for Cheltenham asked a couple of detailed questions. He asked, for example, whether a technical change to allow for emergency flood relief, agreed to by means of the simplified revision procedure, would be subject to a referendum. As he will know, the so-called enabling clause, article 352, would be available in the event of a need to take urgent action within the European Union’s existing competences if that action were taken to attain the EU’s objectives and if there were no explicit provision to authorise that in the EU treaties, and emergency relief and international development are indeed competences that the European Union shares with member states. Clause 8 of the Bill provides for enhanced parliamentary controls prior to any agreement on the use of article 352.

I disagree with the hon. Gentleman on some of what he termed technical changes. I firmly believe that a referendum should be held on any change that would transfer competence or substantive power from this country to the EU permanently.

The hon. Gentleman also asked how many article 48(6) changes were currently being considered. Only one is being considered at present, the one that was promoted by the German Government and agreed at the December European Council. It affects only the eurozone, and as it does not transfer power or competence from this country to the European Union, there would be no need for a referendum.

Amendments 1 to 5 and amendment 7 would ensure that every treaty change required the consent of the British people in a referendum, even if it transferred no further competence or power from this country to Brussels. I suspect that this was not the authors’ intention, but even a treaty change that would repatriate power from the European Union to the United Kingdom would require a referendum in this country before it could be accepted. A treaty change to remove the United Kingdom’s veto over decisions to amend the number of advocates-general working in the European Court of Justice would require a referendum, as would a treaty change to allow Denmark to participate in justice and home affairs measures. The addition of 18 new MEPs before 2014—when they take their seats automatically anyway—for which the Bill provides would also require a referendum.

The issue is this: what is a suitable matter for a referendum? I believe that decisions that change who decides—decisions that move control over an area of policy from the United Kingdom to the EU—should require the consent of the British people; but not every treaty does that. Should a technical change such as the temporary alteration in the number of MEPs require a referendum? If Iceland decided to join the EU, should that require a national referendum? I think that that argument is very hard to justify, and might well discredit the principle of referendums from the point of view of voters. I also see no justification for referendums on treaty changes that do not apply to the United Kingdom. As I said earlier, in democratic terms, those are ultimately decisions for the countries to which the treaties apply, and not for us. No transfer of competence or of power from this country to the EU is associated with such changes.

European Union Bill

Martin Horwood Excerpts

Tuesday 11th January 2011 Commons Chamber

[Mr Cash]

I was talking about the crow that was quacking on the fence.

[Martin Horwood (Cheltenham) (LD)]

Is the hon. Gentleman now in favour of establishing a common European language?

[Mr Cash]

As long as it subscribed to the classical arrangements that were provided for when we all actually spoke Latin properly, the answer would be yes.

--- Later in debate ---

[Mr Cash]

My hon. Friend makes a very important point, which I think all Members will want to take into account. As a lawyer myself—there are many other lawyers in the Chamber—I know that there always exists within the framework of the judicial or court system the adversarial nature of arguments based on words. One reason I came into this House after a fairly lengthy career in the law was that having had so much exposure to parliamentary legislation and its impact on people, I was conscious of the fact that however clever or adroit a lawyer might be in expressing his opinion in court or in his practice, the impact of law on the people who receive it—the voters—was quite a different matter. The common sense mentioned by my hon. Friend the Member for New Forest East (Dr Lewis) provides a salutary reminder of the necessity to remember that we in this House are Members of Parliament. We are legislators; we are not lawyers. We are seeking to apply principles that will enable this country’s people to be better governed.

Unfortunately, much of our legislation emanates from the European Union, for example, on issues such as food labelling. My hon. Friend the Member for South Norfolk (Mr Bacon) has just proposed a private Member’s Bill to deal with that issue, but his Bill has no chance of becoming law unless we disapply the European element and pass it in this House. That is the problem, and it is, in part, what the supremacy of Parliament debate is all about.

[Martin Horwood]

I would like to question the hon. Gentleman on one of these principles. He is presenting this as a competition between European and British law and between judges and Parliament, yet he himself has said that these debates are happening and this authority has been conferred on British courts because of the European Communities Act 1972, which, unless I am very much mistaken, was an Act of this British Parliament. That rather reinforces the principle of supremacy.

[Mr Cash]

If I may say so, that is not only true but precisely what I am seeking to deal with in new clause 1, which I tabled because the courts have been allowed this unwarranted intrusion into the legislative process by judicial activism. Much of the European Communities Act 1972 invokes regulations, which come into effect in a different way from directives. In the new clause, the interpretation and the construction put on legislation by the judiciary should not under section 3 of that Act extend to the nature or legal effect of parliamentary sovereignty. What I am doing is exactly what the hon. Member for Cheltenham (Martin Horwood) highlighted—dealing with the mischief, as I see it, created for that ultimate source of authority, which lies in this House as a sovereign Parliament, to be able to make and unmake laws as it wishes.

That does not necessarily mean that we would automatically take extreme positions. Some academic lawyers—very distinguished they are, too—have gone to extraordinary extremes in trying to demonstrate, in print, the necessity for their case, and have not done themselves a service in so doing. It is at a much more mundane level that the people of this country are unreasonably affected by some of the legislation that needs to be dealt with in Parliament, and which can be dealt with only by the sovereignty of Parliament in its traditional sense.

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Removing sovereignty from Parliament would pass that sovereignty to some other body, whether it be the European Union, the Supreme Court or any other organisation. Sovereignty is about giving ultimate power to the people’s democratic representatives in Parliament, not to the courts and not to international bodies such as the European Union. It is that democracy which gives voters freedom to choose who governs them and how, and for which people have fought and died.

[Martin Horwood]

The hon. Gentleman is being extremely generous with his time. According to a report from his own European Scrutiny Committee,

“the term ‘Parliamentary sovereignty’ bears a number of meanings which can get confused.”

Does not the risk posed by his amendment lie in the fact that it is so simple that it allows for wide and different interpretations that might be exploited by the very courts about which he seems to be so worried?

[Mr Cash]

I should be more than happy to show the hon. Gentleman a book that is entirely devoted to the issue of the sovereignty of Parliament. The point is that there is no need to define parliamentary sovereignty. The Constitutional Reform Act 2005, which gave greater independence to the judiciary and the whole of which ultimately turns on the rule of law, does not contain any definition of the rule of law. Certain fundamental principles, and methods whereby we are governed, do not require definition for that purpose. They are applied, in the case of both sovereignty and the rule of law. There is a natural constructive tension between the two, but it is our job to protect the element that involves the sovereignty of Parliament.

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[Mr Cash]

Ah. He knows that he may have to answer that question during the debate. Judicial trends have recently moved along that route, and that movement is firmly entrenched, so it is time to call a halt to them, and that is what the amendments would achieve.

[Martin Horwood]

I realise I am on dangerous ground in quoting bits of the hon. Gentleman’s report back to him, but in paragraph 43, the European Scrutiny Committee concluded:

“Overall, the majority of witnesses thought that if an Act of Parliament were to derogate from an EU Regulation or Directive, for example, and in so doing expressly and unequivocally disapply the ECA, the courts would be likely to follow the derogating Act of Parliament.”

The majority of witnesses thought that clause 18 was at worst unnecessary. Only one thought that it was dangerous, so the principle that the hon. Gentleman has espoused is well established and perfectly defensible in British law.

[Mr Cash]

That would be the case if it were accepted by the judges in the Supreme Court. It is precisely because we know that they are not inclined to take that view that the amendments are necessary. We are extremely grateful for the evidence that we have received from distinguished witnesses, but the problem is not what they have said, because they aided us in arriving at conclusions in the light of our need to defend parliamentary sovereignty. The problem does not lie in Parliament or with the witnesses; it lies in the assertions of a circle of certain judges and lawyers.

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[Mr David]

The hon. Gentleman might well have a point. This is something that has to be looked at carefully. I am mindful of the fact that although we are in Committee today, this is not the end of the process. I am sure that we will return to the issue on Report.

It appears that the Government hold the view that parliamentary supremacy is a construct of common law. However, if that is the case, it could be argued that parliamentary sovereignty could be qualified by the courts and that this would not be opposed by the Government. Professor Tomkins, who has been referred to already, is the distinguished chair of public law at the university of Glasgow. He submitted extremely important written evidence before the European Scrutiny Committee and gave extremely significant oral evidence. Let me be clear: Professor Tomkins is not anti-European. He specifically said in his written evidence that he considered that

“it is in the United Kingdom’s clear interest to remain a committed member of the EU.”

However, he expressed his concerns to the European Scrutiny Committee about the supremacy of Parliament and common law as follows. Referring to the Jackson case, Professor Tomkins said:

“one of the things that that case most sharply and, to my mind, alarmingly indicates is that even our highest court, as was, is not sure what to do with parliamentary sovereignty. It isn’t sure what the legal basis for parliamentary sovereignty is. It isn’t sure how much parliamentary sovereignty is under challenge. It isn’t sure how much parliamentary sovereignty continues to represent the group ‘norm’ or the ‘bedrock’ or the ‘keystone’ of the constitution—all of those words are used.

The reason why the Jackson and the Attorney-General case is so long…is that so many of the judges who decided that case…wanted to use the case as a vehicle for the expression of a bewildering variety of different views about the past, present and future state of parliamentary sovereignty. The case, I think, is authority for not much, but it is authority for the proposition that we have the right to be concerned about what is going to happen to parliamentary sovereignty in the hands of the courts.”

That is a powerful statement, and all of us who believe in the importance and the supremacy of Parliament should take note.

As I have tried to argue, the Opposition believe that clause 18 is otiose and unnecessary. It is purely declaratory and merely reaffirms what is widely understood to be the legal and constitutional position regarding the application of EU law in the United Kingdom.

[Martin Horwood]

I am rather confused about the Labour Front-Bench position. Having apparently endorsed the fear that there is judicial mission creep, the hon. Gentleman now seems to be rejecting a clause that seeks to resolve that issue. What exactly is the Labour party suggesting? Would it propose an alternative clause, or would it prefer that the Bill did not exist? What is the Labour position?

[Mr David]

I am just coming to the amendment that we are proposing, which would allow an opportunity for the issues raised by the hon. Member for Stone and others to be considered in a rational and thoughtful way. In the spirit of generosity, we accept that others may have genuine doubts. That is why we tabled amendment 52, which would ensure that the Secretary of State made an annual report—[Interruption.] The Deputy Leader of the House has read our amendment. Well done. Amendment 52 would ensure that the Secretary of State made an annual report to indicate whether parliamentary sovereignty had been challenged or questioned in the British courts or the European Court of Justice. Our amendment spells out in clear terms the duality principle, whereby the law of the European Union is totally dependent on the European Communities Act 1972. We see such a report being presented to Parliament and being voted on annually.

[Martin Horwood]

With all due respect to the hon. Gentleman, I shall have to restate my question. I was not asking whether he was proposing a report to find out the Secretary of State’s position; I was asking him what the Labour party’s position would be. What would he want in that report? What would he expect?

[Mr David]

We would want an accurate reflection of what has been happening in the British courts and the European Court of Justice. I want to see the objective evidence presented to us. It is interesting that we have not heard from the Government in this debate as to whether there is more justification than what they have so far presented to us. I suspect that there is none, but there are many Conservative Back Benchers who believe that there is ample evidence. What I am saying is that there is certainly an indication that there are more things to be considered.

--- Later in debate ---

[Mr David]

I am not sure what the “mission creep” that the hon. Gentleman is talking about really is. We have been talking about the sovereignty of the British Parliament, and we are pretty clear that the European Union exercises its powers through European law in this country by virtue of an Act of this Parliament. That is undeniable, and it is an important principle on which I hope every Member of the House would agree.

I fully appreciate that many Members of the House have sincerely held concerns. Although we would argue that some of those concerns are exaggerated, we should nevertheless have an annual review—an annual report, an annual debate and, yes, an annual vote. If it can be shown that the sovereignty of Parliament is being questioned or challenged in the courts, either at home or abroad, we will have a strong basis on which to act.

[Martin Horwood]

I am hoping that my persistence will pay off. The hon. Gentleman appears to be saying that on the one hand, clause 18 is otiose and, according to all the eminent sources to whom he has referred, that there is no particular threat to parliamentary sovereignty. However, he also seems to be conceding that there is some generalised concern, because he is calling for an annual debate and an annual report on the subject. Let me once again ask: what would the Labour party do? Would it also suggest such a clause? Is the hon. Gentleman suggesting that we should restate parliamentary sovereignty in statute or not?

[Mr David]

The hon. Gentleman is making hard work of this—or perhaps he is not listening as carefully as he might. Our starting point is that we would not have this Bill in the first place. We would be talking about the issues that really matter to the people of this country and the people of Europe. Nevertheless, we recognise that we are in the here and now. The Government have introduced the Bill, dedicating much parliamentary time to it, and, as a good Opposition, we are determined to make the best of it. We are simply saying that, on the face of it, there is no case for clause 18. However, we have respect for the concerns that have been expressed, both here and elsewhere. We are saying that we should be careful to take into account all the points that are expressed, clearly and effectively. However, let us not dwell on them on a one-off basis and make a definitive decision here and now; let us instead have an ongoing process, with an annual review and an annual report. Let us ensure that the Government are fully accountable to the House of Commons. That is a straightforward position.

--- Later in debate ---

[Mr Redwood]

Indeed; the hon. Gentleman makes a powerful point. I, too, would like us to opt out of the common fisheries policy. I would like us to elect a Government in this country who had the necessary majority to go off to Brussels and say, “It is now the settled will of this Parliament that we want different arrangements for fishing, and if you will not grant them through the European Union arrangements, we would like to negotiate our exit from the common fisheries policy.” That is exactly the kind of renegotiation that many of my hon. Friends were elected to achieve, and, had we had a majority, we would have wanted our Government to do something like that. There are a number of other policy areas, some of which are more politically contentious across the Floor of the House, where we think we can make better decisions here than are being made in our name by the European Union.

If such renegotiations could be achieved, we would clearly have reasserted, or asserted, the sovereignty of our Parliament. If, however, they can never be achieved, it is difficult to see how Parliament could still be sovereign. If we are saying that nothing can ever be changed once it has been agreed under the various procedures in Brussels—including the many measures that the British Government did not want or on which they were outvoted—we cannot say that we are sovereign any longer. We would then be in a relationship with the European Union that would fall short of our preserving parliamentary sovereignty.

Tonight we are discussing a narrower, but crucial, legal issue that has been well highlighted by my hon. Friend the Member for Stone (Mr Cash) and the European Scrutiny Committee, whose perception is first class in informing the debate. I do not need to repeat all those arguments. Suffice it to say that I support the important amendments proposed by my hon. Friend. As I understand it, we have a Government who say that they wish to do all they can to reassure people in this country that we are and intend to remain sovereign. They do not wish to pick a fight with Brussels, and we are not asking them to do so tonight. They say, however, that should a disagreement arise in future that cannot be resolved through the usual channels, it will be settled here. I am very much in favour of that; it seems to me to be a wholly admirable and sensible place to take the debate. If that is the intention, it proves that Parliament is still sovereign.

We are arguing only about the words used to carry out that intention. It is one of those rare magic moments when the Conservative party is completely united on its intentions. The Government’s intention to reassert parliamentary sovereignty warms the cockles of Conservative Members’ hearts. It is wonderful to know that in another debate we can have a referendum when anything important happens. There may be some arguments about what is important, but we welcome the spirit. Again, we are at one with our Government.

When eminent lawyers and colleagues who have studied this matter at much greater length than I have say to the House that they have studied it carefully, that they have what sound like moderate and sensible words that basically repeat the Government’s policy and that it would be helpful if those words were written into the legislation, my feeling is—unless the Minister has a very powerful speech coming up—what is wrong with that? If the Minister wants to reassert parliamentary sovereignty, why cannot we just say that in the Bill? It is exactly what my hon. Friend says —it does not seem difficult, so will the Minister please humour us on this occasion?

The fact remains that if we succeeded in amending the Bill in this way, we would not be truly sovereign in future unless we had the will and determination to shape our own destinies, should the need arise. I hope we can do it by agreement. Any sensible person wishes to do it by agreement, given how far we are in this thing with our European partners and what a mess they are in.

[Martin Horwood]

The right hon. Gentleman makes an eloquent case. He and I might disagree on whether we want to withdraw from the common fisheries policy, but would he have seen any constitutional bar to that taking place had a Conservative majority Government taken office? Surely, if this was in the manifesto, he must have believed that it was possible to achieve it under the present constitutional arrangements.

[Mr Redwood]

Withdrawal from the common fisheries policy was not in the manifesto, although it might have been in the personal manifestos of some of my right hon. and hon. Friends. I gave it as an example because I believe it has a great deal of cross-party support. Most people think the common fisheries policy is extremely badly run and is not in the interests of the fish or the fishermen. Casting all those dead fish back into the sea is not my idea of conservation and it does not bring cheap fish to the fish market either, so it does not seem to be good news.

Successive Governments have always said that they quite agree with those of us who make such points, but they have never managed to negotiate a better deal. Would it not be wonderful if the Government said, “If we cannot negotiate a better deal next year, we will use British parliamentary sovereignty to pull out of the CFP”? I would like to do that and I do not think it would be tantamount to leaving the European Union. It would be pretty cross, but it would probably do a deal with us because it would be more embarrassing to have a sovereign Parliament taking unilateral legislative action than to do a deal. I hope the EU would do a deal; it would be sensible for it to do so.

If we are not prepared at some point to assert our power, we lose our sovereignty. Just as the Crown lost its sovereignty, became the Crown in Parliament and eventually lost practically all its real powers, so this Parliament is losing its powers. If it goes on losing them, without sensible provision being made of the kind proposed by my hon. Friend the Member for Stone and without at some point standing up for a better deal for Britain, this Parliament, too, will no longer be sovereign.