European Union Bill

Stephen Dorrell Excerpts

Monday 24th January 2011 Commons Chamber

[Mr David]

The answer is simple. I have faith in Parliament; I do not have faith in this Government. That is the issue that is at stake. I think that many Members have twigged that the subsection is very significant.

[Mr Stephen Dorrell (Charnwood) (Con)]

Will the hon. Gentleman address the question asked by my right hon. Friend the Minister a bit more seriously? New clause 9(2) makes it clear that the Opposition are suggesting that there could be significant transfers of power that did not merit a referendum. Will the hon. Gentleman give us an example of a significant transfer of power that he thinks should not merit a referendum? The principle is there in his new clause.

[Mr David]

There is a fundamental point here. We are not second-guessing Parliament’s view. These are essentially subjective statements. I think it wrong for the Government to pretend that there can be predetermined formulas that will suit any eventuality. They know in their heart of hearts that that is not possible in the real world, which is why they have come up with the “significance” subsection.

[Mr Dorrell]

Will the hon. Gentleman give way?

[Mr David]

I will give way once more, but then I must move on.

[Mr Dorrell]

I am grateful to the hon. Gentleman, who is being very patient. However, he is not second-guessing the Government; he is proposing an amendment to the House of Commons. He is proposing that there should be a dual key before a referendum is held. First, a proposal should be significant; secondly, his committee should recommend a referendum. That implies the possibility of a significant transfer of power that would not require a referendum. It is his proposal; I am simply asking him to explain it to the Committee.

[Mr David]

What I am saying is that it depends on how “significance” is defined. I propose that, rather than our accepting a formula stating what is and what is not significant—which, as the Government themselves recognise, would fall at the first hurdle—responsibility for deciding what is important should be in the hands of parliamentarians. That would mean a transfer of decision-making power from the Executive to Parliament, of which we are in favour.

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[Mr David]

Perhaps I should not have given way on that point. I want to go on to make it absolutely clear that the Opposition would like to see Turkey join the European Union. There are a host of positive reasons for that to happen. Our position on the European Union and Turkey’s membership has not changed, but I cannot understand how the Government can say on the one hand that they believe in holding referendums on EU changes that affect the UK and on the other that they are against holding a referendum on such a huge issue of great importance to this country. The Government cannot have their cake and eat it.

[Mr Dorrell]

May I bring the hon. Gentleman back to the subject of his amendment? Does it follow from what he is now arguing that if the committee existed he would anticipate that a proposal that Turkey should join the European Union would constitute a significant transfer of power or competence? Does he think that in those circumstances, if the committee reached that conclusion, the decision would require a referendum to be held?

[Mr David]

It is not for me or anyone else in the debate to say what the committee should or should not decide. I am saying that the Bill expressly excludes a referendum on Turkey’s accession, irrespective of whether it is considered important or not, as a matter of principle. The Bill says that there will not be a referendum on Turkey’s accession no matter how important it is. That is illogical.

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[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.

[Mr Dorrell]

May I ask the hon. Gentleman a simple question? Is he in favour of a referendum on Turkey’s accession to the European Union?

[Mr David]

In terms of this debate, I believe it is important for the special committee to consider the pros and cons.

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[Mr David]

On judicial activism, I read the explanatory notes, and they gave me the impression that I should not worry if the Government decide not to have a referendum, because there will be the ultimate safeguard of judicial reviews. The notes made that point not once or twice, but four times, and many Members said, “Fair enough; we will have an opportunity to challenge a decision in the courts because we believe that right is on our side and the strength of our argument is self-evident.” That opportunity does not really exist, however, because all the evidence suggests that all the Government are proposing, as the European Scrutiny Committee concludes in its report, is an illusory safeguard. At the end of the day, the Executive will decide in many, many areas whether there will be a referendum.

[Mr Dorrell]

The hon. Gentleman cannot get away with that. Some of my hon. Friends are concerned, as he appeared to be, about the threat of judicial activism, but as my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) says, if the judges are not going to engage in the issue, it will be a matter for the House of Commons, not for the Executive. The Executive make a recommendation; it is the House of Commons that decides.

[Mr David]

And I want the House to have more influence and power; I want clause 18 made real. I believe in the sovereignty of Parliament, but the Bill undermines that in pursuit of weak-kneed, ill thought-out populism.

[Mr Dorrell]

Will the hon. Gentleman give way?

[Mr David]

No, because other Members want to contribute to the debate.

In conclusion, this tortuous Bill is problematic in the extreme. This part of the Bill in particular undermines the centrality of Parliament in Britain’s democracy. The convoluted clauses setting out when a referendum will be held are not only complex but contradictory; the significance and exemption clauses place a question mark over the Government’s true intentions; and the false impression given in the explanatory notes about judicial reviews is truly reprehensible.

We have tabled amendments that would significantly alter and, we believe, improve this ham-fisted Bill. Central to our main amendment is a belief that Parliament should be at the very heart of our democracy, and such an approach would ensure that the long-standing principles of representative parliamentary democracy were truly upheld. Without the amendment, this part of the Bill is at best a ragbag of half-baked inconsistencies and at worst a recipe for constitutional chaos.

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[Mr Clappison]

I am grateful to my hon. Friend for putting his name to my amendment, and it is indeed the case that, whether or not the significance condition is met, there will have to be an Act of Parliament to give approval to what is proposed. However, there would be no requirement for a vote in the House on whether to hold a referendum, and there should be such a requirement in the Bill. I will endeavour to explain how relying on an Act of Parliament would be very inferior. If hon. Members want an illustration, they will see none better than all the vicissitudes of parliamentary process that we are experiencing this afternoon in trying to amend the Bill. For example, if this evening we do not reach the question of whether to hold a referendum on an accession treaty, the matter will fall, and unless it is chosen for debate on Report, again subject to all the vicissitudes of the parliamentary process, it will simply not get considered, even though it is very important. That might also happen in future, and that is why relying simply on amending parliamentary legislation is very inferior to putting a requirement on the face of the Bill.

[Mr Dorrell]

Is there not an important difference, however, between the circumstances today and those that would prevail in the context of future legislation that the Government concluded was not sufficiently significant? Putting such a killer amendment to the Bill would mean that no Member who would have supported that amendment if it had been called should have any reasonable basis to support the Bill on Third Reading.

[Mr Clappison]

The point could also be made that we have a very friendly Government who have given us five days—we would have liked a bit more time—for debate in a proper way. Those of us who can remember the treaty of Lisbon being taken through the House will remember how guillotines can be applied and how very important issues can go without being debated at all. I seem to remember that we debated the entire foreign and security policy and the question of common defence in about 45 minutes.

[Mr Dorrell]

I do not think my hon. Friend will remember a Bill going through the House without going through Third Reading.

[Mr Clappison]

There is that point, but I think that my right hon. Friend would find that it is all subject to the vicissitudes of parliamentary process, and such a reliance is inferior to placing a requirement in the Bill. In future, if the argument were advanced for a referendum, he and I might see a Minister stepping forward to the Dispatch Box and saying, “It is all very well hon. Gentlemen arguing for a referendum. When we had the European Union Bill, it was decided not to make it a requirement for Parliament to have a vote, and to leave it to the Minister alone to decide whether the matter was significant.” To coin a phrase, that would be a killer argument.

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[Mr Jenkin]

I will not give way, because my point was not designed to provoke the Opposition and I want to press on. The Opposition’s inability to answer the question of how the proposals would help to get a referendum meant that they fell into the trap that was set for them by my right hon. Friend the Member for Charnwood.

[Mr Dorrell]

Did not the Opposition spokesman’s responses give the game away that Labour is unwilling and resistant to the idea of promoting referendums in the context of the Bill? The purpose of both coalition parties is to open the door to consulting the people on the decisions envisaged in the Bill.

[Mr Jenkin]

I agree totally, but perhaps my right hon. Friend was a little unwise to draw more attention to himself. Perhaps he will speak later and give way generously, as the Opposition spokesman did to him. I have a few points to put to him about how enthusiastic he is about a referendum, given that he voted against the referendum on the Maastricht treaty and at that stage even opposed the principle of a referendum on the single currency. Who would take that position today?

[Mr Dorrell]

Given that it is unlikely that I shall have the opportunity to address the Committee and respond to all my hon. Friend’s questions, perhaps we shall have to defer that pleasure for another day. However, I invite him to consider the benefits of a sinner who repents.

[Mr Jenkin]

I am all for that. I remember my noble Friend, the former Member for North Shropshire, Lord Biffen—he who had whipped through and proposed the guillotine on the Single European Act—starting his speech in a debate on the Maastricht treaty by exclaiming that we all have blood on our hands. The important theme to draw from this debate is that there is unanimity about the democratic deficit at the heart of the whole process of European integration. The people have not been involved or consulted enough.

My hon. Friend the Member for Grantham and Stamford (Nick Boles) extolled the virtues of the Bill as the “Thus far and no further” Bill and the great victory for my hon. Friend the Member for Stone (Mr Cash), who has campaigned on the matter for so many years—the Bill Cash memorial Bill. My hon. Friend seemed to be saying that the Bill would succeed in stopping the process of European integration in its tracks, even though the much-quoted Martin Howe, QC, has said that although the Bill might fix our place on the escalator, it does not stop the escalator going up.

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[Mr Jenkin]

I will deal briefly with my hon. Friend’s amendments, which deserve consideration and which I will support if there is a vote. The original pledge was that any new treaty would get a referendum—that was what we were told at the Conservative party conference in 2009. That was going to be the real referendum lock. It seems that the proximity of office blunts the senses, and “any treaty” is now only “certain treaties”.

We are now faced with a treaty of enormous significance in the EU—the treaty for fiscal union that Monsieur Fillon came over to propose to the Prime Minister last week. We will be told that it will not affect us, because there is no transfer of competence, no change in voting rights, no imposition of obligations and all the rest, and that it is not significant, so there is no need for a referendum. I remember being told that we could ratify the Maastricht treaty because it did not really affect us as we would have an opt-out from monetary union, but look how it is affecting us. There is no such thing as “Does not affect us”. Of course, if we were not in the European Union and it went ahead with fiscal union, it would affect us, so it will be argued that we cannot object as long as we have proper opt-outs.

The problem is that we are in the EU and under the European Court of Justice. We are in the decision-making institutions and in the legal jurisdiction of what will become a fiscal union. It is impossible for anyone to argue that the development of the European Union can go ahead to such an extent without affecting legal decisions in this country. Yet the Bill excludes any possibility of a referendum on an extremely significant treaty. That provision should have been in the Maastricht treaty—we all argued for that when monetary union was first discussed. We all pointed out that the no-bail-out clause was worth nothing—article 104c is emblazoned on my heart. We all argued that there could not be monetary union without fiscal union. We warned of the consequences of monetary union without fiscal union, and stressed that our opt-out was meaningless and would not protect us from the consequences of the Maastricht treaty. Now we are warning again that we should not allow the treaty to go ahead unless we get sufficient opt-outs and exemptions from the existing acquis communautaire, yet the Bill does not provide for a referendum.

[Mr Dorrell]

My hon. Friend asserted once or twice from a sedentary position during the debate that it had strayed quite widely in the context of the amendments. It is not clear to me how the French Prime Minister’s proposal for a treaty for fiscal union falls within the scope of the amendments that we are discussing.

[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.

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[Mr Lidington]

If the measures in respect of greater economic union or perhaps fiscal union or shared responsibility for debts were to take the form of a European Union amendment treaty and involved the transfer of competences or powers from this country to the EU, the referendum lock would be triggered. If the eurozone countries choose to do their own thing and have their own intergovernmental treaty, which they can do quite distinct from any move to amend either the treaty on European Union or the treaty on the functioning of the European Union, we would not have a say—not if they chose to go down that route.

[Mr Dorrell]

Were my right hon. Friend a Minister in one of those European Union countries that might theoretically be considering a fiscal union, and were he offered the prospect of his decisions on behalf of his country being subject to a referendum in the United Kingdom—a country that would not be part of that union—which of the two routes does he think that he might take?

[Mr Lidington]

By implication, my right hon. Friend has answered his own question. There is a question about national sovereignty and democratic accountability. We would look askance were another EU member to say that some protocol that dealt with the United Kingdom alone should be subject to a referendum in their country. We should be pretty cautious before we set ourselves up and argue that we will insist that we hold a referendum here on a treaty proposal that does not have an impact on the governance of this country, that does not involve the transfer of new powers away from this country, and that leaves the powers of our Parliament and people completely as they are at present.