European Union Bill

Wayne David Excerpts

Wednesday 26th January 2011 Commons Chamber

[Mr Cash]

I am happy to endorse the view that has been expressed. I wanted to make a general point, and that is really all I need to say at this stage.

[Mr Wayne David (Caerphilly) (Lab)]

I would like to address my remarks to clauses 7, 8, 9 and 10, rather than to the amendments.

[The Temporary Chairman]

The hon. Gentleman will be able to talk about clause 7 when we come on to clause stand part.

--- Later in debate ---

I am grateful to my hon. Friend the Member for Daventry for raising the question specifically and to my hon. Friend the Member for Hertsmere (Mr Clappison) for his amendments. I thought it would be sensible if I took the opportunity to set out the position of the Committee in relation to the exchange of correspondence with the Minister. As a rider, I would just add that we appear to be acquiescing in the move to a system of abstract law, which is not in the interests of the people of this country. The issue is not that we are where we are: it is the impact that where we are is having on our constituents. That move towards acquiescence is causing me ever more concern, because we are being absorbed into a system that is changing the face of our politics, our judiciary and even our parliamentary sovereignty. For all those reasons, it should be taken very seriously. However, judging from the fact that yet again no Labour Back Benchers are in their places, we can form some judgment about the extent to which they care about their constituents in relation to matters that will have an enormous impact on their daily lives.

[Mr David]

I thank the hon. Member for Stone (Mr Cash) for providing an indication of what his Committee’s recent report says. We have heard over the last few days how important his reports have been in the consideration of this Bill. I also thank him for providing a useful context to the developing relationship between British law and European law.

During the last couple of days, we have heard a great deal from the Government about so-called direct democracy—enabling the people to make decisions themselves. However, it is worth remembering that the Conservative party has never been the party of devolution in Britain and it has always had a very limited definition of the European concept of subsidiarity. During the last few days, we have also discussed the exemption clause and the significance test—ways in which the Govt are substantially qualifying their apparent commitment to referendums. This afternoon, we go on to discuss the Government’s proposals for those issues that they deem, to quote the Minister for Europe, are “not of sufficient significance” to require a referendum.

Clause 7 sets out where primary legislation is required in such areas. It is interesting that the Government see Parliament playing a key role, but only on what it considers to be second tier issues—issues that do not require, to quote the Minister again, a “full-blown referendum”. Leaving aside the difference between a full-blown and a half-blown referendum, this differentiation between what is deemed appropriate for direct democratic decision making and for parliamentary decision-making well illustrates the incoherence and contradictions at the heart of this Bill.

For example, yesterday we heard from the Minister how under schedule 1 to the Bill any change to the appointment procedure of the advocates-general of the ECJ would attract a referendum. However, according to the letter that the Minister sent to his Back Benchers in November, a move from unanimity to qualified majority voting for decisions concerning the number of advocates-general would not attract a referendum, but would be covered by clause 7. Perhaps he will be kind enough to explain to the Committee why there are to be different procedures on those two related issues. It would be difficult in the extreme for any Government to explain why a referendum would be held on the one issue, but not the other.

It should be stressed that clause 7 is not about stopping changes at either the Council of Ministers or the European Council, because any member state can block a change to an internal passerelle clause. Clause 7 is only about providing parliamentary approval if the Government have already agreed to use one of the decisions set out in the clause. As my hon. Friend the Member for Wolverhampton North East (Emma Reynolds) pointed out yesterday, it would be extremely difficult for a Council decision to abolish unanimity in respect of the adoption of any future acts. Indeed, Sir John Grant, the former United Kingdom permanent representative to the European Union put the matter extremely well in his evidence to the European Scrutiny Committee when he said that

“everybody’s got to agree that some of them are going to be outvoted.”

It is extremely unlikely that such a scenario would arise, so in reality the impact of clause 7 will be very small indeed.

After clause 7 we have clause 8, which would give Parliament a greater role over the so-called flexibility clause in the Lisbon treaty, and after that there is clause 9, which deals with justice and home affairs issues. Yesterday we discussed how some justice and home affairs issues would be covered by a referendum; today we discuss some justice and home affairs issues that will not. In particular, I want to refer to opt-ins to measures

“under the area of freedom, security and justice”.

Interestingly, the Bill does not really deal with one extremely important area. Britain has a temporary opt-out in the Lisbon treaty with regard to certain justice and home affairs measures. Under that protocol there are transitional provisions that provide for the United Kingdom to participate—or not—in certain European Union justice and home affairs measures. For example, the Government decided not to opt in to the draft EU directive on human trafficking. They decided not to opt in to that directive at the start of the legislative process, making the same decision during that process and at its conclusion, although I understand that they are to review the position when it comes to the adoption of the directive.

We believe that this is an important issue—an issue that clearly has to be addressed on an international and a European basis. I understand that the Government have decided to opt in to the sexual abuse, sexual exploitation of children and child pornography directive—and quite right too—but what about the issue of international human trafficking? Our view is clear: it is an important issue that Britain should be tackling in co-operation with our European partners. However, the issue before us today is whether it is sensible, according to the Government’s own logic, to agree to their proposal that such opt-in provisions should be subject to parliamentary scrutiny, but not a referendum. We fully believe that there should be more parliamentary scrutiny. That is why we agreed to an enhanced role for national Parliaments in the Lisbon treaty. However, given that the Government have been arguing for referendums on important issues, why are they not proposing a referendum on such an important issue?

According to the protocol to the Lisbon treaty, the United Kingdom has an opt-in provision that will last for four and a half years. After that, Britain will be fully part of the justice and home affairs decision-making process. Last night we heard that the Government had absolutely no intention whatever of allowing referendums to take place before 2015 at the earliest. The question that I ask is: why? According to the Government’s own logic, if there are to be referendums on important changes that affect the United Kingdom, there should surely be a referendum on this justice and home affairs opt-in during the course of this Parliament. Nothing better shows the inconsistency and incoherence of the Bill than this. It is a muddled clause in a very muddled Bill.

So much for clause 9. Next is clause 10. If what we have been discussing does not make things complicated enough, clause 10 sets out a further six decisions that require parliamentary approval. It is as though the Government have gone out of their way to create a piece of legislation that is deliberately confusing, obsessively complex and designed to confound every constitutional expert in the land.

Let me be clear: we strongly support greater parliamentary involvement and greater parliamentary scrutiny. That is why Baroness Ashton, when she was Leader of the House of Lords under the previous Government, made a statement setting out commitments by the then Government for more parliamentary scrutiny on actions arising from the justice and home affairs protocols. Last week, this Government made a statement that reaffirmed those commitments, and I welcome that. However, we are genuinely concerned about the lack of clarity. This is an obtuse and even eccentric way of addressing serious constitutional issues. They are issues that affect the people of this country on a day-to-day basis, and the country and the House deserve better than the Bill before us today.

[Mr Lidington]

May I first respond to my hon. Friend the Member for Stone (Mr Cash)? He spoke with his characteristic dignity, courtesy and thoroughness about the issue of EU accession. I am sure that he will understand that I want to look carefully at the report from his Committee, rather than responding on the hoof this afternoon. As he would expect, a subject of this significance needs to be discussed by Ministers collectively in order for the Government to come up with the thorough and considered response that every member of his Committee deserves.

Clause 7 fulfils the pledge made in the coalition programme for government that

“the use of any passerelle”—

or ratchet clause—

“would require primary legislation.”

It sets out that the Government may not agree to the use of a number of passerelles, or ratchet clauses, in the EU treaties unless the approval from this House is specified in an Act of Parliament.

As the Foreign Secretary and I have made clear in the past, there is no straightforward legal or treaty definition of a ratchet clause. The European Union (Amendment) Act 2008 listed 10 such clauses and limited the definition to use of the simplified revision procedure and to nine articles that allow for the giving up of the British veto in specific areas. When we considered that commitment in the coalition programme, we decided that that definition was insufficient. So for a start, we have put a referendum lock on many of the passerelles listed in the 2008 Act. We debated those matters earlier in our Committee proceedings. Others we have subjected to a primary legislation lock under clause 7. So the use of article 48(7) to give up the UK veto in an area that we did not include in schedule 1 to the Bill would, none the less, still require full parliamentary approval in an Act of Parliament. The same principle applies to any proposal to move to qualified majority voting in an area of enhanced co-operation in which the UK is a participant.

--- Later in debate ---

[Mr Lidington]

I am conscious of the pressure on time and I am going to try to make some progress.

Let me respond to the challenge from the hon. Member for Caerphilly (Mr David) about the numbers of advocates-general. There are not 27 advocates-general, so we are not in the position of having one for every member state, but it is important that we retain the veto on this, and we have no intention of giving it up.

It is important for the United Kingdom to be able to approve the appointments of judges and advocates-general, and we felt that it was sufficiently important to be included in schedule 1.

[Mr David]

rose—

[Mr Lidington]

There will be other opportunities for us to debate the number of advocates-general, and I am sure that the hon. Gentleman is ingenious enough to identify them. He and his hon. Friends have managed to weave the issue into every speech they have made so far at every stage of the Bill’s progress.

[Mr David]

rose—

[Mr Lidington]

I am afraid that I am going to deny myself the pleasure of hearing a further explanation from the hon. Gentleman.

The other articles listed in clause 7—covering decisions on provisions for elections to the European Parliament, on the system of own resources of the EU, and on the adoption of provisions to replace the excessive deficit procedure—already require primary legislation before this country can agree to them, and clause 7 replicates those earlier requirements. Decisions under the articles listed in clause 7(2) would require approval in accordance with the constitutional requirements of the member state before the member state confirmed its approval of a decision. The four articles that I mentioned are also subject to enhanced parliamentary control in Germany following the judgment of the Federal Constitutional Court on the Lisbon treaty.

For the other decisions listed in subsection (4), primary legislation will be needed before this country votes in the Council of Ministers or the European Council. In other words, the Act will be needed before the United Kingdom can cast its vote. We intend that to happen before the final political decision to use the ratchet clause is made at European Union level but after official-level negotiations have been completed, so that it is clear to Parliament that that is the final text and it can make a decision on what is proposed without the risk of further changes.

Unlike the 2008 Act, the Bill does not contain a disapplication provision giving Ministers discretion to approve a decision that has been amended since being approved by Parliament. That is deliberate. We want Parliament to approve the final version, although it will of course be examining the proposals from an early stage under the existing arrangements for parliamentary scrutiny of European legislation.

I should emphasise that these provisions will apply only when the Government intend to agree to a measure. If the Government of the day did not support the exercise of any of the ratchet clauses, they would simply block their adoption. However, the pledge in the coalition agreement and the commitment in the Bill provide that when the Government would be in favour of such a decision, Parliament must approve it first.

--- Later in debate ---

[Chris Bryant]

Referendums in different countries operate in different ways. I think that I have heard the Minister say on a couple of occasions both here and elsewhere that there was never a referendum that supported the Lisbon treaty. That is completely untrue, as the Spaniards were the first to hold a referendum and it had an 83% or 84% yes vote, so he is wrong about that.

I think I have made my argument on Strasbourg.

[Mr David]

My hon. Friend is making a very important point. He has used the example of Strasbourg, but he is making a wider point. The process of change in the European Union, as anybody who knows anything at all about it will be aware, is based on negotiations. The point of the Bill is that it makes it impossible for future Governments in this country to negotiate in Britain’s national interest.

[Chris Bryant]

Absolutely. There are many different things in the European Union—many determined in treaty—that I want to change as a pro-European and as somebody who wants always to defend the British interest. I do not see those two things running counter to each other. My argument in essence is that the Government must have enough freedom to proceed in negotiations, so that they can gain concessions from the other side. If a country has already locked itself down, it is impossible to gain concessions from the other side.

--- Later in debate ---

[Mr Clappison]

That is why the opt-out is so very important, and that point brings me to the subject of this amendment.

[Mr David]

The hon. Member for Stone (Mr Cash) made an indirect reference to the opt-in by the Government on the European investigation order. The Government provided the reason—some might that think that it was an excuse—but it could not be scrutinised by the Scrutiny Committee here or in the other place because of the general election. If the political will had been there, would it not have been possible to have at least informal consultation with leading members of the outgoing Committee, so that the Government had an indication of informed Back-Bench opinion on the issue?

[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.

--- Later in debate ---

[Mr David]

I would like to say a few additional words about clause 9, which follows on directly from what has been said. I do not want to repeat what I said earlier, but I hope that the Minister will respond to the points I raised earlier about the clause. Unfortunately, he simply dismissed my earlier question about the advocates-general. We are in Committee and we have every right to expect proper and considered responses from the Minister.

As the hon. Member for Hertsmere (Mr Clappison) said, this is an important issue. It has in the past been a red line in the negotiations, and the opt-ins that are possible in the not-too-distant future should at the very least be subject to proper debate and parliamentary scrutiny. That is absolutely correct. What I am concerned about, to return to a point I made earlier, is the apparent illogicality of the Bill. If, by common agreement, this is an important area, surely there should be careful consideration of whether or not there should be a referendum on this subject.

I am not arguing the case for having referendums generally—as I said in the debate a couple of days ago, there are profound conceptual problems in having a multiplicity of referendums—but I believe this is an important issue. If the Government claim to be producing a piece of legislation that is logical, coherent and systematic, I would like to know their argument for not having a referendum on these opt-ins.

Stemming from that, the Minister has made it abundantly clear—he made it very clear last night—that the Government will not contemplate holding a referendum until 2015 at the earliest, but the issue of these JHA—justice and home affairs—opt-ins will come to the fore in the next few years. It is therefore important to have a proper response from the Government, so the Minister should at the very least attempt to justify his position.

--- Later in debate ---

[Mr David]

I have some sympathy in policy terms with the Government on the issue of the European investigation order, but would it not have been possible to have had informal consultation with, let us say, the outgoing Chair of the European Scrutiny Committee, rather than having no consultation with Parliament at all?

[Mr Lidington]

I cannot recall without advice whether the Committee had just been appointed but had not met, or whether it had not yet been constituted, but the lesson that I draw from that episode—and the Government were far from happy with the fact that we had to take a decision at the end of the three-month period without a formal scrutiny process—is that we have, in the forthcoming discussions, to find a way to address the real difficulty that arises during a Dissolution of Parliament and the period after that before the scrutiny Committees are fully reconstituted. What the new Government found on coming into office was that the EU’s legislative timetable on justice and home affairs had not stopped and there was an accumulation of measures, each with a non-extendable three-month timetable, at the end of which we had to decide whether to make the initial opt-in. A large chunk of that time had already been devoured by the period of Dissolution, and there were no scrutiny Committees in place to do the job that we would want and expect Parliament to do.

--- Later in debate ---

[Mr Lidington]

I disagree with my hon. Friend’s statement either that we face an impossible dilemma or that the situation is untenable. We have a situation in which two political parties with differences of perspective and tradition on a number of issues are finding a way in which to work together in the interests of the nation as a whole. I think that the coalition is providing stable government. It is new in recent British political experience, but I find that it is hugely welcomed by many people of all political persuasions and no strong political persuasion.

[Mr David]

When the Minister says “people of all political persuasions”, he certainly should not include those on the Opposition Benches. I found his recent comment very interesting indeed. We understand how keen and enthusiastic he was to become a Minister, and this is the first time that he has revealed why he really, really wanted to be one. Also, this is the first time that he—or any other Minister—has acknowledged that the Bill is basically a compromise. It is the result of negotiations between the Liberal Democrats and the Conservatives. It is important that that point is now firmly on record. This is the first time in this whole debate that it has been said. In the interests of transparency and openness, will he elaborate, so that we can find out the exact nature of the negotiating process that led to this rag-bag of a Bill?

[Mr Lidington]

It is a bit rich for the hon. Gentleman to intervene in that fashion. He and I know that, in regard to policy on Europe or on any other matter, Governments of a single party in recent history—Conservative and Labour—have had to compromise a great deal, given the different points of view in the broad churches that those parties represent.

--- Later in debate ---

[Mr Lidington]

We are due to debate the measures later.

The Government will have three options. They can decide to opt in to all the measures en bloc, or they can decide to opt out of them en bloc. The judgment that Ministers will have to make—I emphasise that no decision has yet been made, and that we are nowhere near making one or making a recommendation—is that these are measures in which the United Kingdom freely decided that it wanted to participate, because it served our national interest to do so, during the “third pillar” process that existed before the Lisbon treaty.

The Government of the time—Labour or Conservative—decided that each measure was right and that it was in the British national interest to participate; but, of course, that decision was made on the basis that those were intergovernmental matters which did not fall within the jurisdiction of the European Court of Justice. That is a material difference. If we opt in to all these measures in 2014, we must accept that we are opting in to matters all of which will, from that point, be subject to ECJ jurisdiction.

[Mr David]

This is a very important point. One legal opinion says that if we reach that point in 2014 and the Government do not take a decision, Britain will have, in effect, opted in. Is that correct?

[Mr Lidington]

Yes, the default position is that we stay opted in. We have to take a decision one way or the other, and the Government are not going to hide in the corner and hope that nobody notices a decision to opt in. We are going to make a public announcement at the due time and have the debate in Parliament.

The third option for the Government would be to opt out of the measures en bloc and then seek to opt back in where we continue to believe that the balance of advantage to our national interest lies in participation. A complicated analysis is involved and we are talking about 90 such measures coming up for determination in or before 2014. As this is, again, a matter within existing competence, it is best dealt with through the enhanced scrutiny arrangements that I am proposing and it should certainly require a vote in the House. The Government have explicitly committed themselves to that and it will, of course, happen before the end of this Parliament in 2015.

The two amendments standing in the name of my hon. Friend the Member for Hertsmere and others tabled by my hon. Friend the Member for Daventry propose to subject all opt-in decisions to a requirement for an approval motion in both Houses, not simply those on which there is a significant level of parliamentary interest. Because of the practicalities of such a move on all opt-in decisions, that requirement would risk preventing the Government from being able to secure Parliament’s approval in time to opt in to any new JHA proposal within the three-month time limit set down in article 3 of protocol 21 in order to enable us to participate in negotiations at EU level. That would have a knock-on effect on our ability to help shape the proposal effectively in negotiation, and sometimes that is of great importance. Our votes made it possible to clinch an agreement on the EU-US terrorist finance tracking measure that suited our national interest and ensured that the Americans were content too. That deal became available during a parliamentary recess, when it would not have been possible to go through the formal procedures that the amendments seek to apply to each and every opt-in. That is one reason why in the discussions about enhancing scrutiny we have to find a way to handle the real difficulties that can sometimes arise, both during recesses and in periods of and following parliamentary Dissolution.

May I say in passing to my hon. Friend the Member for Daventry that, although the detail will be the subject of discussions with the relevant Committees and business managers, the possibility of a parliamentary vote would apply to any opt-in decision under the proposals that I made in my written statement. Included in that would be measures following the adoption of a measure by other member states and decisions not to opt out of Schengen measures where there is strong parliamentary interest in the measure or where the measure is of the importance that I have indicated in my written statement. The process proposed in the amendments does not lend itself to timely decision making when a rapid decision needs to be taken. I have outlined the practical reasons why this approach would not be proportionate and I hope that my hon. Friends will therefore be prepared not to press their amendments to a Division.

Amendment 47 would require parliamentary approval before we could opt in to a measure brought forward under article 83(2) of TFEU, which allows for the establishment of minimum rules regarding the definition of criminal offences and sanctions if such approximation of member state criminal laws and regulations is judged to be essential to ensure effective implementation of policy areas in which the EU has already harmonised standards. For example, if the EU set rules about environmental protection and a criminal sanction proved essential to make those rules effective, the EU could consequently set a minimum standard for a criminal offence in that area.

I listened carefully to what my hon. Friend the Member for Stone said, but I do not believe that article 83(2) is a ratchet clause in the way that articles 81(3), 82(2)(d) or 81(1) are so considered. Article 83(2) makes provision for Europe to be able to act under its existing competence without the need to be able to expand EU action in the same way, for example, as article 83(1) provides for the ability to expand the list of areas of serious cross-border crime in which the EU can act. I do not therefore think that it should be subject to the enhanced level of parliamentary control set out in the Bill to which the ratchet clauses are to be subject, given the relative differences in effect.

--- Later in debate ---

[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.

[Mr David]

The hon. Gentleman is making a logical, coherent argument. The Government’s position on the Bill, as I was led to believe, was that if there were a significant move towards powers being transferred from the UK to the European Union, there should be a referendum. We have referred to a number of cases when there would be small changes, on which there might be a referendum, but he is talking about a very significant change. Does he not think there should be a referendum on that?

[Mr Jenkin]

The hon. Gentleman is right. The Bill is completely inconsistent. Relatively tiny matters covered by the Bill and caught by its provisions will have to come to Parliament and may even have to be the subject of a referendum. But this incredibly significant change to our legal system that is taking place now is exempted from the Bill. It is totally illogical. If there is anything that makes a complete nonsense of the Bill, it is this total exclusion of the 2014 decision.