European Union Bill

William Cash Excerpts

Monday 24th January 2011 Commons Chamber

[Mr David]

I have read all the evidence submitted to the Committee, and the significant point about that particular quote was the use of the word “gesture”. The Bill is a gesture, and I will say more about that later. It is a gesture to placate hostility to the European Union among Government Back Benchers, but it is not a serious, considered piece of legislation.

[Mr William Cash (Stone) (Con)]

The hon. Gentleman has referred to Professor Hix’s evidence to the European Scrutiny Committee. Will he note that the professor also said that previous EU amending treaties—Maastricht under a Conservative Government and Amsterdam and Nice under a Labour Government, as well as the Lisbon treaty—should all have been subjected to referendums? If the conditions of the Maastricht referendum campaign, which I founded and which had about 750,000 signatures, had been implemented by the Government at the time—let alone those for Amsterdam and Nice—is it not right to say that we would not be sitting here today discussing this nonsense?

--- Later in debate ---

[Mr David]

No. I will move on. It is important that we realise that as well as the significance provision, the exception provision and the specific exclusion of a referendum on accession of any kind, our good friend the explanatory notes make matters worse and add to the obfuscation of the Bill.

I shall quote from the explanatory notes. Although they are wholly inaccurate and unsatisfactory, they are of some significance. They state that the so-called list in clause 4(4) is “illustrative rather than exclusive,” and they continue:

“In other words, there may be other types of treaty change which do not transfer competence or power from the UK to the EU and therefore do not trigger a referendum.”

What are the other types of treaty change? Has anyone got any ideas? Has the Foreign Office been rubbing its crystal ball? It is not good enough. There should be a clear indication of what the other types of treaty change are.

[Mr Cash]

The shadow Minister referred earlier to the meaning of the word “significance”, and he has just mentioned it again. Is he aware that the “Oxford Dictionary” defines “significance” as

“having a particular meaning; indicative of something”,

and goes on to give as an example,

“in times of stress her dreams seemed to her especially significant”.

Does he know something we don’t?

--- Later in debate ---

[Chris Heaton-Harris]

I concur with the hon. Lady. Several manoeuvres have taken place under previous Governments to determine who is Minister for Europe. The incumbents do not often stay in the role for long. Either they are, like the current incumbent, sufficiently ambitious to move up the ministerial pay scale, or they could easily be a journeyman on the way out. There is a historical context to some decisions about conferring a competence on an EU agency, and one needs to know what the agency was formed to do in the first place. I perceive such conferral as part of the mission creep in Europe. The European Commission, in establishing so many new agencies on such a regular basis, creates its own quangocracy.

When I was a Member of the European Parliament, it was difficult to police the spending and powers of an agency that the European Commission set up. Indeed, it was more difficult than policing some of the agencies and quangos that Governments of different complexions established in this country. If those agencies grab power and take more competences—even for a valid reason at the time—it is important that the Minister of the day understands the historical reasons for setting up the agencies and the intended limits on the powers. I was present when Eurojust and Euro-magistrate were set up—all part of the European public prosecutor, which I look forward to debating tomorrow, and all part of a significant salami-slicing approach of taking powers away from individual member states, and building something that nobody particularly wanted.

I understand that any ministerial decision on the significance test has a kind of double lock. It has been drawn as narrowly as possible, and I would therefore like the Minister to answer a couple of questions. First, I want to check whether any treaty change will require an Act of Parliament. I should like to think that Parliament will have every opportunity to vote for a referendum on such a change. That is why I support amendment 11. Secondly, the decision on significance is subject to judicial review to ensure that decisions not to hold a referendum only on genuinely insignificant matters are backed.

Those matters are important because, as I said, they are about getting the British people to trust the decisions that we make on Europe again. No member of the public wants decisions to be made behind closed doors, without reasonable explanation. I emphasise strongly to the Minister that the amendments are not about trust in him, his ability to undertake the role or his decisions. I would like clarification that Parliament will have a say because that is what we were sent here to do.

My hon. Friend the Member for Stone (Mr Cash) has tabled some tempting amendments to which the Minister and the hon. Member for Birmingham, Edgbaston alluded. In amendment 1, my hon. Friend manages to do a fantastic decapitation job on the Bill that would basically put all changes up for referendum. Although there is validity in my hon. Friend’s reasoning—he has seen through the years a lot more of what goes on in this place than I have—I do not want everything to be decided by a referendum. The British people will not take that. They want Parliament to say, “These are important decisions and there will be a referendum, a debate in both Houses, or an Act and a vote,” and the Bill makes such provisions. We can then choose whether to amend a measure so that it is subject to a referendum because we believe it to be so important. If we think that a subject is insufficiently important, we can decide not to have one. I am tempted by amendment 1, but I am simply unable to support it for those reasons.

I was tempted by amendment 1 because of the accession exemption, which the hon. Member for Caerphilly and a number of hon. Members mentioned. I tabled an amendment on accession to the EU that we will not decide on today, just as we will not decide on many amendments that have been tabled. Amendment 21 is exactly as the hon. Gentleman described it. It would mean that a 3.5% dilution of our voting powers on the European Council triggered a referendum. That is a catch-all—it is completely designed as such—so that we would have a referendum on the accession of big countries.

Given that, amendment 1 all of a sudden comes back into play and I am once again tempted. I would much rather have had a comprehensive and sensible debate on clauses 4 and 5 today or tomorrow or in extra time.

[Mr Cash]

I understand where my hon. Friend is coming from, but there is a difference between significance and the opinion of the Minister on the one hand, and the question of exemption on the other. Clause 4(3) says that certain matters are forbidden territory. I am tempting my hon. Friend by saying that that whole category of exemption should clearly be removed, even if there will be a debate on what is or is not significant.

[Chris Heaton-Harris]

I understand what my hon. Friend says and I am quite sorely tempted, but my problem, as I described earlier, is the minutiae that might be sucked in under amendment 1.

[Mr Cash]

I understand my hon. Friend’s reasoning, but the specific exemptions are set out in clause 4(4)(a), (b) and (c). I understand that he would not want my proposal to go too far. The British people expect these things, which after all include matters such as Turkey and treaties of the type proposed by the French only the other day, not to be exempted. The British people would be left out and not taken into account on such decisions and treaties, yet they would have the most incredible impact on them. I shall explain that later.

[Chris Heaton-Harris]

I always appreciate the lessons that my hon. Friend can teach a humble new Back Bencher and member of the European Scrutiny Committee, and I very much look forward to receiving them, but he makes a salient point. This is about what the people who put us here expect. That is why I ask the Minister please to listen to what hon. Members say about the significance clause and amendment 11. The proposal is not against him; it is about enhancing Parliament and its transparency.

--- Later in debate ---

[Mr Cash]

Amendments 1 and 3 stand in my name. My comments boil down to what I said in my interventions on my hon. Friend the Member for Daventry (Chris Heaton-Harris) and were somewhat anticipated by the Minister earlier. In a nutshell, I see no reason why clause 2 should refer to an exemption condition or subsection (3) should state:

“The exemption condition is that the Act providing for the approval of the treaty states that the treaty does not fall within section 4.”

Without any further let or hindrance, clause 4(4) would exclude from those arrangements that would result in a proposal for a referendum

“the codification of practice under”

the treaties already established

“in relation to the previous exercise of an existing competence”,

and

“the making of any provision that applies only to member States other than the United Kingdom”.

That is, I think, an incredibly important point. Also, as we have debated already, it would remove

“in the case of a treaty, the accession of a new member State”,

which in this case would include Turkey. In the context of what the Government clearly want to exclude—in other words, their positive policy decision not to allow the British people a referendum on certain treaties of immense importance—they are disavowing the very intentions and principles that underpin the Bill.

I have made that point before over the question of sovereignty, where there is a massive contradiction between what is on the tin and what is in the Bill. I say again that those of us who spoke in favour of the sovereignty of Parliament won the argument, but that was not on the tin and it was not what the Whips—or, indeed, the Prime Minister—wanted, so it was voted down. That does not reflect particularly well—if I may say so—on our democratic system. We are faced with exactly the same point here. We are told on the tin that we will have a referendum on important matters—that is the general idea as explained in the Foreign Secretary’s article in The Sunday Telegraph only a week ago—but on examination in Committee, it becomes perfectly obvious that certain kinds of treaty will be excluded. I have mentioned the example of Turkey, but I want to give another specific example of the kind of treaty that would be excluded.

[Charlie Elphicke]

Will my hon. Friend give way?

[Mr Cash]

I think that my hon. Friend can wait, if he does not mind.

I want to give an example that deals explicitly with a matter of immense importance that is coming up in the lift. In fact, it is not merely in the lift; the lift has come up and the doors are opening. Monsieur Fillon, the French Prime Minister, came over to see the Prime Minister specifically about this issue, and I have here the exclusive interview in The Times with Monsieur Fillon. I also had the opportunity to meet the French Minister for Europe and discuss the matter with him personally and privately.

There is no doubt about what they want or what they intend, which is effectively a twin-track treaty, which is a treaty entered into by us and the rest of the European Union—that is, with all 27 member states, in order to legitimise it within the framework of the treaty arrangements—so that they get their treaty and, within that treaty, an arrangement specifically designed to exclude the United Kingdom, even though we would be gravely affected by it. It would apply only to those other member states.

Clause 4(4) refers to

“the making of any provision that applies only to member States other than the United Kingdom”.

They look like innocuous words, but what do they actually mean? That exemption condition—in other words, no referendum, to put it bluntly and simply—means that there would be no opportunity for a referendum if the other member states agreed to go down that route. They may well do that, despite all the protestations to the contrary, some of which were rather subtly indicated by the Prime Minister in his press conference, albeit without excluding the idea of any such treaty; rather, it was merely on the supposition that that might not affect us as much as we believe, or as I believe the British people would believe if they saw it in black and white. What do those provisions include? In particular, they include arrangements of that kind relating to fiscal, political, social and employment measures, not to mention other matters that would affect the relationship between us and the rest of the European Union. A massive juggernaut would be created, through a form of extremely enhanced co-operation between those member states, that would have an enormous impact on the United Kingdom.

I have been looking at the balance of payments between us and the other member states. The figures, which I got from the Library, only bring us up to 2009, before the catastrophe that hit Europe occurred, and they are alarming. The imbalance in the balance of payments between us and the other member states has been moving critically in the wrong direction. I could give the precise figures—I may do so later—but we only have to consider the following example, which was on the “Today” programme this morning. If one had listened to the programme, one would have heard about Belgium, which is in massive crisis, with protests and people on the streets, and no Government for 22 months. Greece is in absolute chaos, with protests and implosion, while Ireland, with its political crisis, is totally imploding. Spain has 4 million unemployed, with 40% youth unemployment and people on the streets on a massive scale today. Similar problems are also occurring in Italy, and there have been riots and serious unrest in France, too.

The bottom line is that Europe is not working according to the economic governance that has been prescribed. Yet under what is proposed, the opportunity to address the very kind of treaty that would enhance the ability to confront us with a massive juggernaut of policies that have been going wrong—policies that would undermine the opportunity to grow from our 45% to 50% investment in Europe—would be severely depleted. That would be the most damaging kind of treaty that could be entered into. Indeed, as I said in The Times on the day that the French Prime Minister came over, it would be the kind of treaty that I would expect our Prime Minister to veto on behalf of the British people. However, we cannot have confidence that that would happen, because of the argument being presented. This Bill was introduced on 11 November, when we know that treaties of the kind that I have just described were already being anticipated, however damaging and disastrous they would be for the very people of this country who, if they knew the facts, would say, “I insist on a referendum on any treaty relating to arrangements of this kind.”

It would be an abomination for us to be confronted with the kind of arrangements that are being put into place—arrangements that would be so damaging to our growth and our relations with the European Union. That is why I say that this exemption provision has to be taken out of the Bill, for precisely the reasons that I have given. I do not need to enlarge on that point, but I absolutely insist that these provisions should be taken out. I look to the Minister, if he thinks that I am wrong, to give me a reasoned answer as to why.

[Ms Gisela Stuart]

I rise to speak to amendment 11, on which I hope the Committee will have time to vote. The amendment goes to the heart of what is wrong with the Bill. There are plenty of other things wrong with it: it is inconsistent, and all kinds of other things, but let us leave that aside for the moment. The hon. Member for Daventry (Chris Heaton-Harris) made an important point when he said that there was not a particularly clear party political divide on Europe, and that there were pros and cons on both sides. Very few people vote for their Member of Parliament because of the candidate’s view on Europe. They do, however, have a sense that, in a parliamentary democracy involving the Crown in Parliament, the House will ultimately have to decide on these matters.

What worries me about the whole construct of the Bill, which purports to strengthen Parliament, is that it will actually do no such thing. There is a sense of “Oh God, make me virtuous, but not in this Parliament”, and, because one Parliament cannot bind another, God knows what will happen in the next one. However, the default position will introduce the judiciary into the proceedings. It was bad enough that, when we were discussing parliamentary sovereignty, we were seriously asking whether it was a common law concept that would be open to judicial interpretation. It is not. The default position is that there must be a substantive vote in the Commons, and that that must be the ultimate decider if there is any doubt. There are manifold reasons why people have lost trust in the political process, but it is true to say that all parties have a tendency to behave differently once they are in government. They are much less inclined to ask the people than they were when they were out of government.

I am fundamentally in favour of the accession of Turkey to the European Union, but I would not like to go out and campaign in a referendum on that question. The Bill calls for referendums on significant changes. At the time when Turkey might accede to the European Union, its population will be larger than that of Germany. It will be the largest country in the EU by population, and its voting weight would therefore be larger than that of any other country. Anyone who argued that Turkey’s accession did not represent a significant change would be living in cloud cuckoo land.

--- Later in debate ---

[Mr Clappison]

My hon. Friend makes a very fair point. Why are we making all the other requirements for a referendum clear on the face of the Bill if we can simply tack something on to Report or Third Reading? Why are we bothering to go through the whole process? To leave out this question, when we are making all those other requirements, would leave a significant gap, and in times to come we might contemplate with some regret our failure to fill in that gap. I cannot see the great problem with requiring a vote of the House to approve a Minister’s opinion. On these Benches, and probably in other parts of the House, Members stood on a manifesto that promised greater parliamentary scrutiny, and this is an opportunity to fulfil that promise. I can see no great obstacle to doing that.

[Mr Cash]

In supporting amendment 11, may I ask my hon. Friend whether he is aware, as I became recently when the Finnish delegation came over, that Ministers in Finland—and certain other member states—have established a very good practice whereby they must appear before the Finnish Parliament’s equivalent of the European Scrutiny Committee to ensure that there is compatibility between what goes on in Parliament and what the Minister decides on such important matters?

[Mr Clappison]

With his great experience, my hon. Friend makes an important point, and there are similar arrangements in the Danish Parliament. The House should seek to have the best arrangements possible. I welcome right hon. and hon. Friends’ movement in the right direction, but if they do not move on this point, they leave a significant gap in future. Briefly, I will try to explain how big a gap that could be.

There are only two clauses that cover a statement of significance by a Minister and to which the significance test applies. The others all concern competences or changes in the voting procedure. However, these two clauses are very important, as they cover the transfers of power that are apt to be made under the simplified revision procedure of article 48(6) referred to in clause 4. I will give way to the Minister for Europe, who is looking very interested in these points, if he disagrees with me. The powers that Ministers decide are significant enough to warrant a referendum, if they are transferred to the European Union, are those that will come to the House as a result of the simplified revision treaty. That important procedure was introduced specially by the treaty of Lisbon. I will give way to any Member, including my right hon. Friend the Member for Charnwood (Mr Dorrell), who wants to disagree. That procedure made it easier and quicker to make constitutional change, and to bring about a transfer of power from nation states to the European Union.

We have spent some time debating whether we should have had a referendum on the treaty of Lisbon, the treaty of Maastricht, the treaty of Amsterdam or the treaty of Nice. However, under the simplified revision treaty, a treaty in those forms is not required. There is no requirement for a convention and all the other lengthy procedural steps that preceded the treaty of Lisbon. It is simply a matter that can be agreed between the member states at a Council meeting, and then approved by the individual Parliaments. The whole point of the simplified revision treaty was to make it quicker and easier to integrate powers in the European Union. It is a sort of “speeding up of European integration” provision. The provisions that are subject to a ministerial test of significance are the ones that will ensure that these matters are brought before the House. They embody the procedure of simplified treaty revision. There are only two of them, but they are very important. All the other provisions—or at least the preceding ones, which deal with competence—would require a full constitutional process under the ordinary treaty revision procedure with which we are all so familiar.

--- Later in debate ---

[Mr Clappison]

My hon. Friend has clearly given the matter great consideration, but I think that he is wrong, and that if others agree with him, they are wrong as well. The procedure for which my amendment provides is exactly the same as that which the Government propose in other parts of the Bill relating to other transfers of power, including those relating to the title V provisions on justice and home affairs. If my proposed procedure is defective, so is the Government’s proposed procedure, because the terms of the amendment are the same as the Government’s. If the Minister’s opinion was that the effect was not significant enough to warrant a referendum and Parliament did not agree with that opinion, there would have to be a referendum, because the significance test would not have been met. That provision is in the Bill, so I do not think that it could be any stronger.

[Mr Cash]

The opinion of the Minister will in fact be the opinion of the Whips, who will wish to ensure consistency in the Act of Parliament to which reference has been made. For practical purposes, my hon. Friend is right. If Parliament has said that it does not approve of the opinion of the Minister, it will be an awful lot more difficult for the Bill to be whipped; and if the Whips did that, they would be in defiance of the very sovereignty to which I have referred repeatedly during our debates on the Bill.

[Mr Clappison]

My hon. Friend is right. The amendment follows the scheme of the Bill. Unless a Minister says that the transfer of power is insignificant, there will have to be a referendum, because the significance condition will not have been met. The amendment provides that if the significance condition is met because the Minister says that the transfer is sufficiently significant, there must be a vote in the House to prove that what the Minister has said is correct, and if the significance condition is not met, there must be a referendum.

Broadly, the question is this: does Parliament decide, or does a single Minister decide? The Government propose that a single Minister should decide, but, as my hon. Friend knows, there is a fall-back position, namely that the Minister should be challenged not in the House but by means of judicial review. I find that somewhat strange, as did some of the distinguished academic witnesses who gave evidence to the European Scrutiny Committee.

Under the Bill, if one of our constituents is aggrieved by what the Government propose, his recourse will be not to his Member of Parliament but to the courts, through judicial review. I think that that in itself sends a very odd signal. What should I tell a constituent who comes to my surgery and complains about the European Union, as some of my constituents do when it introduces a regulation that has an adverse effect on their jobs or companies, or when they disagree with some transfer of power? Should I say, “I am sorry. You may want a referendum, but you have come to the wrong place: you need to visit the solicitor’s office down the road”? I do not think that that is a very satisfactory state of affairs. We are told that clause 18 entrenches parliamentary sovereignty, but I think that if we adopt the proposal in this clause, we will bypass that.

[Mr Clappison]

I fear that I must part company with my hon. Friend if he is suggesting that our democratic safeguard should lie in recourse to the courts rather than to Parliament. I am afraid that I must put Parliament first. In any event, as was demonstrated by evidence given to the European Scrutiny Committee by esteemed legal experts, it is very unlikely that a challenge to a decision by either a Minister or the House of Commons would succeed in a judicial review. I think that we are being led down a blind alley. In my opinion, even if the possibility of a judicial review of a ministerial decision had been contemplated in the explanatory notes or in ministerial statements, judges would be extremely reluctant to challenge a political decision on the significance of a particular transfer of power. I also believe that the fact that we are contemplating such a step as the main challenge to a Minister’s decision risks undermining the House of Commons while not providing any further safeguard.

[Mr Cash]

Although the Committee has rightly said that a judicial review might be considered unlikely in certain circumstances, the key question is what Parliament has said about the circumstances in which a referendum should be required. We should bear in mind above all else the fact that we in Parliament should decide what is in the interests of our own constituents. We are here to give them the opportunity on these matters—that is part of the Government’s overall case which, regrettably, fails on a number of tests as we go through these proceedings. The object of the exercise is to ensure that the people of this country have the right to decide on matters relevant to their daily lives. Regrettably, the fancy franchises being thrown up by these exemption conditions and significance arrangements are invading the central question, which is whether the people of this country should be allowed to decide after we have made our judgment on their behalf.

[Mr Clappison]

I am grateful to my hon. Friend for that point. The long and short of it is that the Bill provides that unless the significance condition is met and it is decided that a transfer of power is not significant enough to warrant a referendum—some transfers of power will not be significant enough, whereas others will be—there will not be a referendum. As the Bill stands, the Minister alone will decide whether that condition has been met and this House of Commons will not have the chance for a separate vote, before an Act of Parliament, on whether a referendum should be held. Even if someone were lucky enough to find the time and all the rest of it to table an amendment on this during the consideration of a Bill, it is unlikely such an amendment will succeed if this is not contemplated in this Bill. The Minister would simply say, “The Government of the day decided that there were certain occasions when a referendum would be required and this was the procedure for dealing with a referendum in these cases. It was decided that a Minister’s opinion was the test of significance or not, so this does not apply.” I do not see such an amendment being a successful avenue or a good defence to which to turn.

My amendment would provide an important safeguard, which is in addition to there being an Act. I welcome the provision for an Act, because that is a good thing. To be fair, an Act of Parliament is not required in these circumstances at the moment, because the transfers of power under the simplified revision procedure are simply subject to the resolution of both Houses. The Bill’s proposals are therefore a step forward, but we could do so much better. If we do not make the change that I am proposing, we will be leaving a big gap.

[Mr Clappison]

For the same reason that placing something in a Bill is a stronger defence—it has stronger legislative authority—than leaving it to chance in the future. My amendment is a safeguard in addition to the Act of Parliament that will be required, and including in the Bill requirements on a referendum would make things legislatively stronger.

We come back to the question outlined by my hon. Friend the Member for Harwich and North Essex (Mr Jenkin), “Why put any of these requirements in the Bill and why provide these 44 situations where a referendum is required, given that each time we have an Act of Parliament for a treaty change, as we would have to have, we could simply do the same thing then?” That argument is being run in certain quarters, but it makes a mockery of the whole Bill. I do not want to be too unkind to those who promote that argument, but I merely say that it was fully ventilated during the European Scrutiny Committee’s deliberations and it was dismissed, and not only in one report. We produced a majority and a minority report, which disagreed on almost everything but agreed that a change needed to be made on the significance test. When one understands the two spectrums of opinion in the European Scrutiny Committee, one can see the measure of achievement in uniting the two.

[Mr Cash]

rose—

[Mr Clappison]

I give way to one of those spectrums.

[Mr Cash]

It seems inconceivable that if parliamentary approval for the Minister’s opinion were denied precisely because of the arguments that have been heard in the House of Commons, the Government would then say, “We are going to enact this anyway. Parliament has said that it disagrees with the Minister’s opinion that such and such applies, but we are going to pass this by way of an Act of Parliament.” That is just not real. The real decision would be taken on the assessment of the opinion of the Minister and that would be properly gone into if my hon. Friend’s excellent amendment were accepted.

[Mr Clappison]

My hon. Friend is absolutely right. Hon. Members will just have to face the fact that although the Bill is a step forward and contains very good provisions, we must not leave gaps. If we leave this gap, we leave a get-out clause to be used in the future. Given the volume of change that could come through the simplified revision procedure, that could prove very important indeed and we may regret our decision in time to come. I cannot see what the enormous problem is with having this requirement in the Bill. I am used to hearing the argument that something could be done in a better way and to hearing technical arguments, but my experience is that when such arguments are put before the House, they usually have little real basis. If we want to have something, we should vote for it. I see no reason of policy or substance that is an obstacle to my proposal. Perhaps the Minister will tell us why. He has been very reasonable and persuasive on many other points in the Bill.

[Mr Cash]

And very charming.

[Mr Clappison]

He has been very charming and dealt with things in a very satisfactory and open way.

[Mr Cash]

And very friendly.

[Mr Clappison]

He has been friendly. He has been a model of charm and ministerial competence, but he has not yet produced any credible reason why we cannot have a vote in Parliament to decide whether something is significant enough to trigger a referendum, as opposed to leaving it simply to a Minister. What is wrong with trusting Parliament?

--- Later in debate ---

[Kelvin Hopkins]

The hon. Gentleman is right, and I apologise for momentarily forgetting the name of his constituency—Harwich and North Essex—earlier. I agree with him. We have been right so often. When I argue about the European Union, I do not do that in nationalist or theological terms. I ask people to consider the effects on the European economy, which has grown more slowly than it would have done without the euro.

[Mr Cash]

Does the hon. Gentleman agree that those who take our position—the Euro-realists—are the pro-Europeans because the people who promote the extraordinarily damaging policies create the massive unemployment, riots and protests that are happening?

[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.

--- Later in debate ---

[Kelvin Hopkins]

The decision in favour of going to war was made with Conservative support. In the end, we are accountable not to the Whips. Clearly, we have a party system, and we are elected as party politicians, which I understand. By and large, on most things, we are guided by the Whips, but on some matters of fundamental principle, such as giving further powers to the EU or going to war, we must say, “What I believe and what I believe my electorate want is more important even than what the Whips advise.” I hesitate to say that while my Front-Bench colleagues are listening, but in the end, we must occasionally take a stand.

[Mr Cash]

On the anniversary of Winston Churchill’s death, will the hon. Gentleman accept what he said, which is that country comes first, constituents second and party third?

[Kelvin Hopkins]

We must take all those things into account when we make our decisions, but we make those decisions and stand by them, which I like to think I have done. I have regretted one or two things, but the hon. Gentleman is right. In defence of two-party Government—or our party system—I do not believe that we are elected as individual anarchists. We are here to represent a philosophy and interests in society. I am not by nature an anarchist; I am a collective democrat. That is where I stand.

The most important aspect of amendment 11, which is in the name of the hon. Member for Hertsmere, is that it would have an impact on the EU, which the hon. Member for Stroud (Neil Carmichael) mentioned. If the EU wants to push something through that it suspects will be unpopular in this Parliament, it might not proceed if the provision in the amendment were in force, whereas if it thinks it must win over only the Minister, the Prime Minister or the Executive, it might think it will get away with it. If it knows that its proposals are likely to go to a referendum and that their significance will be voted on by the House, it will be a little more careful.

That impact on the EU is more significant than giving decisions to ourselves because we like to make decisions. The EU will be much more careful about its proposals if it thinks that they might be subject to a referendum in Britain, because it knows very well that the justifiably strong degree of Euroscepticism will come to the fore, that there could be a problem, and that it might not win. If the EU thinks that there is a chance of not winning a referendum, it will not risk it. A referendum is much more likely to be risked if a decision is made in this House rather than by the Minister. That is the way of things.

Finally, I want to draw a parallel. I mentioned the excessive centralisation of power in British politics, particularly in No. 10 Downing street, the Prime Minister and his little entourage, but the other thing that is wrong is secrecy. I was a strong supporter of the Freedom of Information Act 2000. When it was going through Parliament, the Government proposed an amendment to the effect that we could have freedom of information except when the Minister says no. My good friend Tony Wright, the former Member for Cannock Chase and Chair of the Select Committee on Public Administration, led a rebellion. We did not win, but we made our point. He was very much a politician of the moderate left who would go along, by and large, with the leadership—he was not as critical as I was. He was an architect of that Act, and quite strongly in favour of it, but he was quite shocked when that qualification was proposed. Ministers are fine people who do a great job, but in the end, this House must make serious decisions about things, not just Ministers. I very much hope that the hon. Member for Hertsmere presses amendment 11 to a Division, and I certainly wish to vote for it.

--- Later in debate ---

[Michael Ellis]

That is absolutely right. Conservative Members have learned lessons from previous enlargements and we will not allow full free movement of workers from all new members, carte blanche, as soon as they join. We should require, it seems to me, complete fulfilment of all the membership criteria, particularly on criminal justice enforcement, for example. Labour messed up on that previously and this country suffered.

I respectfully submit that there has previously been a fundamental lack of understanding of sovereignty issues in this country. One example I would venture to provide is Labour’s creation of the Supreme Court. The very name is a misnomer, I submit, because in this country the law is not as it is in the United States where the American Supreme Court in Washington DC is empowered to say that the Government’s legislation is unlawful and to strike it down. The US Supreme Court can overrule Congress, but in this country Parliament is sovereign. Labour thus showed a fundamental misunderstanding of the British constitution when it called the institution that took over from the House of Lords judicial committee “the Supreme Court”. The law in this country is not supreme; Parliament is supreme and Parliament gives the law its authority, not vice-versa, unlike under the American system.

That brings me to clause 18, which is crucial and reaffirms that Parliament has ultimate sovereignty over European law.

[Mr Cash]

I take issue with my hon. Friend on that, simply because we had a significant debate on it and the European Scrutiny Committee took a completely contrary view.

--- Later in debate ---

[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.

--- 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.

--- Later in debate ---

[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.

--- Later in debate ---

What we are debating today is whether we can plug some of those loopholes. I am afraid that the whole conception of the Bill has been deconstructed in today’s debate.

[Mr Cash]

Amendment 1 would deal with the exemption condition, which in turn would deal with that mission creep, the accession issue and the question of mixed treaties.

[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.

--- Later in debate ---

[Mr Jenkin]

I agree that it is better, if only because it generates an expectation and a moment that will come in our history when people say, “Up with this we will not put! We are having a referendum.” To that extent, it is useful background noise, but I put it no higher than that. It is not fulfilling what we promised before the last general election.

[Mr Cash]

I am sure that my hon. Friend will accept that the real problem is the European Union as it now is. We are not having a referendum on any aspect of the mess that Europe is in. Everybody in the Committee has to accept that the riots, the protests and the collapse of the euro—all these things—are the consequence of the failure of European economic governance that has been predicted from Maastricht onwards. The Bill will do nothing to change that because it does not provide for a referendum on the circumstances that we are now in.

[Mr Jenkin]

I am grateful to my hon. Friend.

I hear the plea of my hon. Friend the Member for Devizes (Claire Perry), but I believe that there is a constant danger of us succumbing to wishful thinking. 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. What is more, whatever other horses there may be in the stable, there are sufficient holes in the door for those horses to squeeze through, if it is convenient for the Executive to allow it to happen. That is what we will see with the treaty coming down the track for EU fiscal union. The Bill will not increase the happiness of the British people about our present terms of EU membership. The Bill fails to address those terms, but they will have to be addressed at some stage in the future.

I refuse to sign a referendum pledge, as I was recently asked to do, saying, “Let’s have an in-or-out referendum”. That is not the way to conduct this debate; the way to conduct it is for the Government to set out their national interests and negotiate robustly for them in the European Union, rather than to continue appeasing the system to avoid a row. I even accept that we may need to do that for a period, while we are in such a difficult fiscal position, but the moment that the EU is asking for treaty changes for which it needs our consent is the moment we should be asking for concessions in return. We certainly should not carry on transferring competencies to the EU without a referendum, as is provided for in the Bill.

[Mr Lidington]

We have had a robust debate, and I want to start by thanking all right hon. and hon. Members on both sides of the Committee who have taken part, whether through speeches or the numerous interventions.

I want to start with a point on which there was agreement, certainly on the Government Benches. Wherever people stand within the coalition or the spectrum of opinion on Europe in the Conservative party alone, there is agreement that the European Union has developed with too little democratic control and without adequate consent being given by the British people. Indeed, the Lisbon treaty was the first time that the United Kingdom agreed to, and then ratified, a European Union treaty that was not even included in the general election manifesto of the winning party at the previous election.

My hon. Friends the Members for Daventry (Chris Heaton-Harris), for Grantham and Stamford (Nick Boles) and for Camborne and Redruth (George Eustice) said that we needed to change what the history of the British political world’s handling of European business had done, which is to undermine support for our membership of the European Union and the idea that what British Ministers do in European Union institutions on behalf of the United Kingdom carries democratic consent. We need to restore a sense of confidence among the public in how British Ministers take decisions on Europe on their behalf, and that is what the Bill seeks to do. We want to ensure that the British people are never again denied their say over the transfer of new competences and powers from this country to the institutions of the European Union.

I should say in parenthesis to my hon. Friend the Member for Cheltenham (Martin Horwood) that although the word “transfer” in the explanatory notes is a reasonable use of layman’s language, I am sure that he will have noted that in the Bill itself we use the term “confer”. We talk about exclusive, shared, co-ordinating and supplementing competences, which are precisely the terms used in the European treaties.

However, my hon. Friend was right to say that this Bill should not be our only means of addressing the democratic deficit in the way that European decisions are made. He was right to talk about the importance of strengthening our systems of parliamentary scrutiny. I am looking forward to seeing how the scrutiny Committees in the House of Commons and the House of Lords use the opportunities presented by the new yellow and orange-card system. I know that my hon. Friend the Member for Stone (Mr Cash) has been in regular contact with his counterpart committees in a number of other EU capitals. It is important that that network of contacts between the European Union scrutiny committees in each of the 27 member states continues to develop.

I am sure that my hon. Friend the Member for Cheltenham will also have seen the written ministerial statement that I made to the House last Thursday. Although it dealt primarily with issues concerning justice and home affairs measures, it also stated that the Government now wanted to explore—together with Parliament, and therefore with the two scrutiny Committees in particular—ways in which, right across the piece, we can strengthen scrutiny and accountability to the Houses of Parliament for what we as a Government do in Europe on behalf of this country.

[Mr Cash]

I very much acknowledge the sentiment that my right hon. Friend is expressing, but I am sure that he will understand when I say that listening is not the same as actually agreeing, and that there are circumstances where I would have expected him to be a little more acquiescent in relation to some of the arguments that we have put forward.

[Mr Lidington]

In those conversations about parliamentary scrutiny, which I intend should begin as soon as possible, I hope that I can find complete agreement with my hon. Friend. However, he will know that if we are talking about arrangements that will govern how both Houses of Parliament deal with European business and the process of scrutiny, we ought to be striving towards a measure that can command broad support in both Houses, and across all the political parties represented therein.

The Bill is a radical piece of legislation to improve how we handle European business. As my hon. Friend the Member for New Forest West (Mr Swayne) pointed out, in a characteristically vigorous intervention, had the legislation been in force at the time, the treaties of Lisbon, Amsterdam, Nice and Maastricht would all have required a referendum before they could have been finally ratified.

The powers in the Bill include a referendum lock on treaty changes or decisions that transfer powers from the United Kingdom to the European Union. That is the case even if the measures used to transfer those competences or powers are the extensive self-amending provisions introduced by the treaty of Lisbon. The powers include requiring that important decisions—even if they do not transfer power or competence—are still in every case approved by an Act of Parliament. I want to put this beyond any doubt: the Bill will mean that any treaty change at all, whether using the ordinary procedure for amending a treaty or the simplified revision procedure, will have to be approved by primary legislation.

This is a vitally needed improvement. Under the European Union (Amendment) Act 2008, Parliament’s control over the simplified revision procedure and other key ratchets is limited to a vote on a Government motion. That is the case even if the simplified treaty changes or ratchet clauses are proposed to abolish something as important as a national veto over foreign policy.

--- Later in debate ---

The second condition is that Parliament’s approval has to be gained for the treaty change in all cases, no matter how minor or uncontroversial, by Act of Parliament. That legislation would provide for the approval of the treaty change and, where a referendum is required, provide the necessary enabling measures to allow it to be held. The need for an Act of Parliament is central to our role in holding Ministers to account for the decisions they take on behalf of the UK in the EU. If Parliament were of the view that a referendum should be required for a future treaty change, despite that proposal coming in one of the exempt categories, it could amend the approval legislation to provide for a referendum if it so wished.

[Mr Cash]

Does the Minister not accept that it would be a monumental change if proposals relating to fiscal union, social union or employment union were to be incorporated in a treaty between the UK and other member states—excluding the UK, but none the less having a juggernaut impact upon us? In those circumstances, is that material not so important that we would expect to get a referendum—as would the British people?

[Mr Lidington]

My hon. Friend is jumping several bridges in assuming that what might be proposed in those hypothetical circumstances would be an amendment of the European Union treaties rather than a separate intergovernmental treaty involving the member countries of the eurozone—and perhaps some others—who wished to participate in the sort of closer economic union that my hon. Friend described and fears.

I hope to say more about this later, but the Bill is based on a very clear principle agreed within the coalition —that the referendum lock should apply where there is a transfer of competence or of power from the United Kingdom to the institutions of the European Union. That is the defining criterion. The different categories of exemption apply where powers and competences are not being transferred from this country. That is the reason for the distinction set out in the Bill. It is not an arbitrary decision, but one based on a very clear principle.