European Union (Withdrawal) Bill

Debate between Wayne David and Bernard Jenkin

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Wayne David]

There are many speakers, as we have heard, and I am sorry, but I would rather press on.

In the White Paper of March 2017, it was stated that there would be a significant increase in the decision-making powers of the devolved institutions. That was there in black and white. It also intimated that former EU frameworks would be subject to decisions involving the devolved Governments, but such is not the case. The Bill before us does not return powers from the EU to the devolved institutions, as promised. Instead, in devolved areas, such as agriculture and the environment, power is going from Brussels to London, bypassing and therefore undermining devolution. Moreover, this Bill in effect imposes a freeze on the legislative competences of the devolved institutions. As a report by the Welsh Assembly research department points out, the devolved institutions will not be able to modify so-called retained EU law for Wales and Scotland, but a Conservative British Government will be able to do so for England, and may even be able to do so for the devolved nations.

[Mr Jenkin]

In the last Parliament, the Public Administration and Constitutional Affairs Committee took evidence on this matter from the same academic who advised the Scottish Parliament, and he was very clear that the powers being reserved under these proposals were only ever notionally devolved, because they were of course reserved by virtue of our membership of the European Union. This is not a power grab; the Government’s objective is to make sure that the devolved Administrations finish up with more powers than they had before.

[Wayne David]

We are not talking about notional, theoretical powers; we are talking about actual powers on the statute book, and about whether one institution or another is able to enact laws according to that legislation.

There is a big difference between what was in the White Paper and what is in the legislation before us. What is more, undemocratic changes have been introduced without even a modicum of prior discussion, let alone negotiation, with the devolved institutions. This power grab by the Conservative Government is an affront to the devolved institutions, but it is also a slap in the face of the people of Scotland and of Wales. As Carwyn Jones, the First Minister, said in the Welsh Assembly in July, there is a popular mandate for what the Welsh Government are arguing. To quote him exactly:

“The 2011 referendum…saw a large majority vote in favour of giving this National Assembly primary legislative powers”,

but the European Union (Withdrawal) Bill is

“an attempt to take back control over devolved policies…not just from Brussels, but from Cardiff, Edinburgh and Belfast.”

In his letter to Members of Parliament, dated 7 September, the First Secretary of State said that the arrangement I have described was a “transitional arrangement”. My question is: how long is this transitional arrangement for? How long is the period to which we are referring? How long is the rapid period mentioned in the explanatory memorandum? Is it one month, one year, 10 years, 20 years—how long? This Bill is an undemocratic blank cheque that, if passed, will give unprecedented powers to this Government.

Unfortunately, it is difficult to avoid the conclusion that the Bill has as its prime objective not so much withdrawing Britain from the European Union as concentrating as much power as possible in the hands of a feeble minority Government, headed by a caretaker Prime Minister. Under the cloak of leaving the European Union, the Government seek to emasculate this House and centralise power in their own hands. If the Government were solely concerned about leaving the European Union, there are other ways that it could have been done—other measures could have been put forward—but, no, they chose this particular route. Rather than looking forward to a new and positive relationship with the European Union, this Bill takes us back to the days when the UK was totally London-orientated and inward-looking. That is why I will vote against it, and why I believe that is the right thing to do.

European Union Bill

Debate between Wayne David and Bernard Jenkin

Monday 11th July 2011 Commons Chamber

[Mr David]

But that is precisely the point. What makes the Bill special, different and innovative is that it departs from virtually all other legislation in that its main provisions are applicable not to this Parliament but to the next Parliament.

[Mr Jenkin]

But that applies to a great deal of legislation. I do not understand the distinction that the hon. Gentleman is attempting to make. Actually, what the Bill will do is restrict the ability of Governments to give away power and to reach decisions in the EU and present them to Parliament as faits accomplis without reference to the people. That seems to me a thoroughly good and democratic thing.

The hon. Gentleman has given the game away this evening about the future direction of the Labour party’s policy. What he has told the House tonight is that he is quite happy for aspects of the Bill to go through, but he is not happy for its provisions to apply to a future Labour Government. He does not want a future Labour Government to have their hands tied by the necessity of referendums before they give away more powers. He wants to go back to the system to which my hon. Friend the Member for South Northamptonshire (Andrea Leadsom) referred—of signing up to treaties, promising referendums on them and then ratting on those promises. That was the record of the Labour Government.

I regard all these Lords amendments as completely unacceptable. Whatever shortcomings the Bill has—I am afraid there are many, because it is limited in scope—the amendments are designed to pull the guts out of this democratising measure. The vote threshold proposed in Lords amendment 3 is not a recognisable one but a perverse one. It does not suggest that unless the number of votes reaches a certain level, a decision cannot be taken. It suggests that if the votes do not reach a certain level, the Government and Parliament can carry on as they like. I thought the whole point of a threshold was to test whether there was a measure of consent for a particular constitutional change. The threshold in the amendment is not about testing whether there is a measure of consent but is more about testing whether there is a measure of resistance, or whether there is apathy.

Unfortunately, the people who have largely guided European policy in this country for the past 20, 30 or 40 years have got away with what they have done largely by relying on people’s apathy and ignorance. The proposed threshold is designed to create an incentive for a Government who wish to transfer more powers to the EU to maintain high levels of apathy and ignorance. I am reminded of my late noble Friend Lord Whitelaw, who during the 1975 referendum accused the right hon. Anthony Wedgwood Benn of going around the country stirring up apathy. The amendment is a charter for going around the country and doing just that. It is completely unjustified and should be given very short shrift.

Lords amendments 6 to 13, to clause 6, are simply designed to rip the guts out of the Bill. My right hon. Friend the Minister for Europe very properly went through some of the things that Governments in future would be able to do without a referendum if the amendments were not disagreed to. Under the amendments, Governments could, without a referendum, give up the veto over foreign policy and over almost anything else under article 48(7). The amendments would allow the UK to join the public prosecutor and to extend the role of the public prosecutor to any serious crime with a cross-border dimension. We should think about what that means for the criminal justice system of this country. The amendments would allow Governments, without a referendum, to give up the veto over labour laws, taxes and planning, and the multi-annual financial framework and spending of the EU. The Opposition should shed no crocodile tears over how much the EU is spending if they are prepared to give up that veto without proper consent.

The amendments would remove the veto from all the enhanced co-operation procedures, which would enable what is effectively majority voting to come into effect in a whole lot of areas. Clearly, that is an anti-democratic provision. If there is one thing that ardent advocates of the EU should have learned, it is that that structure lacks popular consent. It legislates without popular consent. If there is one thing that true Europeans should want it is that we reconnect the decisions on how powers are exercised with popular democratic consent. The Bill goes some way towards doing that.

The sunrise provision is simply the last gasp of a past generation who are trying to neuter what is today called Euroscepticism. The support of the hon. Member for Caerphilly for Lords amendment 15 gives the lie to the idea that the new Labour party, under its new leader, is flirting with Euroscepticism. It is not. It has no intention of following through. It might pretend to be, and to sound, sceptical, and it might even start talking of an in-out referendum, inviting one or two of my more radical hon. Friends to fall into the trap of thinking that that is the way out, when it probably is not. However, the fact is that we need a Government who are prepared to negotiate vigorously, and to do so with the extra leverage and strengthened hand that the requirement for a referendum gives them.

--- Later in debate ---

[Mr Jenkin]

I know that my hon. Friend does not advocate an in-out referendum, but the general direction of the EU certainly merits a referendum at some stage. I still flirt with the idea that we should have a referendum on the proposed treaty amendment. My right hon. Friend the Minister for Europe adverted to the fact that four fifths of the British public think that we should have a referendum on any treaty amendment. That seemed to be the substance of the Government’s original commitment, which has been hedged in the Bill.

Perish the thought that I am straying from my support for the Government on the Lords amendments—I would rather stay where I am—but I would finally wish to remark that the authors of the Lords amendments have a track record of their own. The introducers of the amendments are not minor figures. The amendment on the threshold was introduced by Lord Williamson of Horton—he who was secretary-general of the Commission during the passage of the Maastricht treaty; he who was the secretary-general who pushed through the social action programme, which negated any effective UK Government opt-out from the social chapter; and he who was one of the architects of economic and monetary union, which is now collapsing around our ears.

In Lords amendment 8 to clause 6, which incidentally completely fails to define, as my right hon. Friend the Minister for Europe said,

“a single, integrated military force”,

Lord Williamson is pretending that we should have a referendum on defence matters. However, I would just pose this question: does NATO constitute

“a single, integrated military force”?

I would submit that it probably does not. We could therefore form a NATO-style command structure in the EU, which successive Governments have set their face against, and pass such powers into the treaties of the EU, without a referendum. I hardly think that the British people would vote for that.

The noble Lord Hannay, former permanent secretary at the Foreign Office and former chief negotiator for the UK in the EU—an illustrious and distinguished person—is also an author of the Lords amendments. Do not mistake me: I have great admiration for the ability and sincerity of those people, but I just advert to their track record of advocating policy on the EU. Lord Hannay said quite recently that the single currency would be quite a good thing for the UK, as did Lord Kerr of Kinlochard. As recently as 26 May 2009, the latter delivered a lecture in Edinburgh on monetary union, in which he lamented that we were not trying to join the single currency.

I raise those points not to stray from the substance of the debate, but just to question whether the people who proposed the Lords amendments should not stop trying to get Britain further into the EU, and start apologising for the appalling judgment and advice that they have given to successive Governments. Their advice has put this country into a perilous economic position—because of the state of the EU and the euro—but they have also advised successive Governments to hand over more and more powers. I would not usually criticise civil servants in public, but they are now taking part in the political process having advised successive Governments to hand over more and more powers, as a result of which Governments have been in an ever-weaker position from which to defend our national interests.

The Bill is a small step towards starting to redress the balance in the relationship between the overweening power of the EU and the people in this country governed by the laws it makes.

[Mr David]

rose—

[Mr Jenkin]

I will give way briefly, but I am about to sit down.

--- Later in debate ---

[Mr David]

With all due respect, I say to the hon. Gentleman that I have read in great detail all the evidence that was given to the European Scrutiny Committee and I think that his summation of it is his interpretation of the evidence given. Most of the witnesses to the European Scrutiny Committee said, as I have said, that clause 18 is a statement of fact and that it does not take us forward or back. Therefore, we should not get hot under the collar about it.

[Mr Jenkin]

I do not wish to detain the House for more than a few minutes. I had not intended to take part in this debate, as I took part extensively in the debate on clause 18 in Committee and I thought that we had covered all the issues then. I had become reconciled to accepting the clause as the Government had drafted it and I came to today’s debate expecting my hon. Friend the Member for Stone (Mr Cash) to make a technical argument, but one that would not necessarily excite me—of course I was wrong. The hon. Member for Caerphilly (Mr David) says that the clause does not take us back and it does not take us forward, but he has missed the fundamental point about the revised drafting of the clause. I am not a lawyer—I am an amateur lawyer—but ever since we started discussing this clause earlier this year, I have had the sinking feeling that we are in very deep water and that we are potentially creating completely unnecessary problems for this House and for Parliament. I say that because the sovereignty of Parliament is axiomatic; it is self-evident and it is a historical fact.

We do not need to legislate in any way to maintain the sovereignty of Parliament. There would have been some virtue in a declaratory Act with the legal effect of returning powers to the United Kingdom from the European Union to redress our relationship so that we had the ability to negotiate, but this clause, which has erroneously been nicknamed the “sovereignty” clause but is no such thing, does not even attempt to do that. In fact, it does not even refer to the word “sovereignty”.

The clause puts in statute issues that are contested by the European Union legal structures in a context that means that the Supreme Court might have to interpret them. We know that some justices of our Supreme Court question the very notion of the sovereignty of Parliament as I have described it and think it is a matter of common law rather than of history and fact. I believe they are wrong and that Parliament will always be able to prove them wrong by legislating, as statute law always overrides common law.

[Mr Jenkin]

I am grateful to my hon. Friend for drawing the House’s attention to that conversation. We are potentially engaged in the early skirmishes of a dispute between Parliament and the judiciary about which has supremacy. By legislating on this issue, which touches on the sovereignty of the Queen in Parliament, we are tempting the justices of the Supreme Court to begin toying with those concepts. They have already done so in some of their ancillary statements to cases—I forget the right word for such statements. We know that they are tempted in that direction and putting this clause into statute, as the evidence received by the European Scrutiny Committee showed, could be the red rag to the bull, providing meat for the justices of the Supreme Court to chew on.

[Mr David]

Will the hon. Gentleman give way?

[Mr Jenkin]

I am just coming to the hon. Gentleman’s point.

I was minded to accept that we had done such a thing before I heard my hon. Friend the Member for Stone speak, but he has described how the situation might have been made worse than it would have been under the previous drafting of the clause. He referred to section 20 of the Interpretation Act 1978, which, if I understand it correctly, already stipulates that when an Act is referred to in an Act of Parliament that Act is deemed not to be constantly updated by subsequent amendments. The Act referred to in an Act of Parliament stands as it stood at the time of enactment and by specifying the European Communities Act 1972 in this clause we are opening up the possibility that at some stage in the future the 1972 Act will be amended but this clause will not apply to the amended Act or to the amendments to the Act, but only to the Act as it stands now. Should there be a dispute between the Supreme Court and Parliament about the sovereignty issues that touch on our relationship with the European Union, the question would be left open with more ambiguity rather than less.

European Union (Amendment) Act 2008

Debate between Wayne David and Bernard Jenkin

Wednesday 16th March 2011 Commons Chamber

[Mr David]

It is for other European Union member states to decide whether they wish to be part of the eurozone, and there is no doubting their commitment to it.

When the dust had settled after the fraught days in May 2010, moves were made to establish a more permanent stabilisation mechanism, facilitated by a treaty change to provide a stronger legal base. That mechanism will come into force after 2013 and will replace the EFSM and the EFSF.

I find the procedure before us rather strange, to say the least. When or if the European Union Bill, which is currently in the other place, reaches the statute book, there will be a change to the relevant constitutional procedure, as the Minister explained, and the procedure that we are using this evening will no longer apply. Instead, we will have what is essentially a post-decision procedure. Treaty changes will require a statement to be laid before Parliament on whether the decision falls within clause 4 of that Bill. I understand that the treaty change to establish the European stabilisation mechanism would not fall within clause 4, so would not trigger a referendum. However, it would require an Act of Parliament. The Government have said on at least three occasions, and have confirmed this evening, that they would seek the support of the House, using the procedures of the European Union Bill, by introducing primary legislation. As the Financial Secretary to the Treasury said:

“The mechanism is not a transfer of power from Westminster to Brussels, so it does not require a referendum, but it will require primary legislation, which will be introduced in due course.”—[Official Report, European Committee B, 1 February 2011; c. 12.]

Given that commitment, I wondered why the Government were putting forward this motion at this time. The reason, of course, lies in section 6 of the European Union (Amendment) Act 2008, which requires that when a decision under article 48(6) of the treaty on European Union is proposed, a Minister must introduce a motion and have it passed by both Houses of Parliament without amendment. That must happen before the Prime Minister can give his agreement to the adoption of a draft decision at the European Council. In other words, for the Prime Minister to be able to give Britain’s support to this draft proposal at the European Council meeting at the end of next week, it is necessary to secure the approval of Parliament.

I want to make a point about procedure. I welcome what the Minister said earlier on this matter, and I hope that the Prime Minister will adhere to that if there is even the smallest change to the proposed amendment. I hope that that is truly a cast-iron commitment.

[Mr Jenkin]

Is the hon. Gentleman saying that the European Union Bill will set aside the procedure set out in the 2008 Act, and that there will no longer be a requirement to bring draft Council decisions before this House before they are made? I think that he should invite the Minister to intervene on him to clarify whether that is the case.

[Mr David]

I would indeed welcome clarification on that subject. Indeed, I intervened on the Minister earlier and received no clarification. It is my understanding that the new procedure will supersede the procedure that we are using this evening, and that the procedure will be post-decision rather than pre-decision. I invite the Minister to clarify that.

European Union Bill

Debate between Wayne David and Bernard Jenkin

Wednesday 26th January 2011 Commons Chamber

[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.

European Union Bill

Debate between Wayne David and Bernard Jenkin

Tuesday 11th January 2011 Commons Chamber

[Mr David]

The hon. Gentleman makes the point that there is absolutely nothing in the Bill—and no indication whatever from the Government either—to say that the Government do not accept the primacy of European Union law. That is the fundamental point that we are at. I therefore take his comments to be a direct challenge to what his Government are proposing. My second point is that we are also talking about the duality principle, whereby European Union law has effect in this country only because of an Act of this Parliament. That is our position.

[Mr Jenkin]

I think I am safe to agree with what the hon. Gentleman says, and that is why clause 18 is not a sovereignty clause, as he says. Therefore, if he agrees with everything that I am saying, I cannot quite understand why he does not want to make clause 18 a sovereignty clause. It would be quite easy to do so. I cannot for the life of me understand this. What could be less contentious than a declaration in the Bill that said, “The sovereignty of Parliament is hereby reaffirmed”? The idea that this would somehow open the issue of parliamentary sovereignty to judicial interpretation seems to me the daftest bit of legal advice of the lot. We make the statute and statute overrules everything, so if Parliament is sovereign and says in statute that it is sovereign, we clobber whoever challenges that; indeed—it is up to Parliament—we could actually sack the judge who tried to do that.