European Union Bill
William Cash Excerpts(13 years, 3 months ago)
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Mr Lidington
I welcome what I take to be the hon. Gentleman’s support for a reversal of some of the Lords amendments and a restoration of the Bill to the state that it was in when it left this House. However, I am in his hands and those of other Members in terms of the time that it will take to deal with the amendments. I feel that we should do justice to the consideration that the House of Lords devoted to the Bill by dealing in turn with the amendments for which it voted.
Mr William Cash (Stone) (Con)
If I may quote the hallowed words of, I believe, John Bright, we should perhaps
“Be just, and fear not”.
Will the Minister be kind enough to confirm that he will do everything possible to ensure that the amendments relating to clause 18, to which the European Scrutiny Committee gave such careful consideration and on which it produced such a comprehensive report, will be reached so that we can at least discuss those questions emphatically? They are extremely important, and will allow us to discuss the Supreme Court and its potential interpretation of laws that might inhibit the supremacy of this House.
Mr Cash
Having listened with enthusiasm and interest to my right hon. Friend’s earlier remarks about timing, on the basis that I think it is generally conceded that this particular batch of amendments is entirely uncontroversial and that the whole question of the amendments’ content could be dealt with in about 30 seconds flat, will he be kind enough to address them as swiftly as possible, to ensure that the House can get its views across on all matters?
Mr Lidington
I am encouraged by my hon. Friend’s remarks to be increasingly confident that we can reach the group of amendments on which he is anxious to speak in good time. I remind him, however, that four hours have been set aside for our deliberations on these three groups of amendments, and I think it is right that we should do justice to the consideration that the House of Lords gave to the Bill by addressing each of the amendments it approved.
On Lords amendment 1, all I want to say further is that the phrase “or otherwise supporting” is included to remove any doubt—just as the previous Government used that phrase to remove any doubt when drafting the European Union (Amendment) Act 2008—and to ensure that a proposal could not be adopted in such a way without the appropriate authority required under the provisions of the Bill.
Lords amendments 2 and 4 make it clear beyond doubt that, under the terms of the Bill, a referendum would not be required in the United Kingdom if a treaty change did not apply to the UK but only to Gibraltar, and this would not transfer competence or power from the United Kingdom. I say straight away that it is hard to work out a scenario in which a treaty amendment that constituted a transfer of competence or power would apply only to Gibraltar and not to the UK. It is possible in theory, and this point was raised in the other place, and we have sought to assuage that concern by proposing these two technical amendments.
Mr Lidington
I ask the House not to support the Lords in these amendments. I am afraid that I am going to have to test the patience of my hon. Friend the Member for Stone (Mr Cash) a little on this group, because these Lords amendments were passed against the Government’s wishes and, in our view, significantly weaken the Bill’s safeguards.
The amendments would restrict the scope or operation of the referendum lock that was approved by this House. They are contrary to our clear intention to ensure that any future proposal to amend the European Union treaties to transfer further competence or power from this country to the European Union should be subject to the consent of the British people. The purpose of the Bill is to reconnect with the people whom we serve. It aims to re-engage them with key decisions on the direction of the European Union, on which they have, in the past, been denied their say. The amendments would not deliver on those aims but, on the contrary, make it much more difficult to achieve them.
Mr Cash
Will my right hon. Friend join me in deploring what recent events have demonstrated? Does he, thus, agree that it would have been extremely desirable to ensure that a referendum should apply to any treaty, either current or future, which attempted to change the fundamental relationship of the United Kingdom to the European Union, including in respect of the creation of a two-tier Europe—between the eurozone and the EU—in economic governance? Does he agree that that is a matter on which a referendum is every bit as important? This is not merely a question of a transfer of competence and powers but one that goes to the very heart of the constitutional relationship between the UK and the EU.
Mr Lidington
If, as I hope, this Bill obtains Royal Assent and goes on to the statute book, this Government and future Governments will, from the moment its powers are commenced, be bound by the provisions of this legislation with regard to the way in which they handle any future proposal to amend the European Union treaties, negotiate and agree a completely new treaty or invoke one of the passerelle clauses in the treaty of Lisbon. As my hon. Friend knows, in certain cases a Government would have to hold a referendum before a particular treaty could be ratified by this country. For any treaty change, even one that according to the provisions of this Bill would not automatically require a referendum, an Act of Parliament—primary legislation—would be needed, and it would of course be open to Parliament at that time to decide to go further even than the provisions that we are putting forward in this legislation.
Mr Cash
May I say that I am delighted by that delightfully disingenuous response? As my right hon. Friend knows perfectly well, I am referring to the treaty that has already been made, and I immediately realised what he was up to when he talked about “any future” treaty. I accept that an Act of Parliament may be needed, but does he not, by the same token as the principles that he has set out in great detail, also agree that we should have a referendum on the creation of such a two-tier Europe, which creates constitutional change in the relationship between the EU and ourselves?
Mr Lidington
The principle on which the Government have consistently sought to act in preparing and introducing this legislation has been that a change to the treaties that transferred new competencies or powers from the United Kingdom to the institutions of the European Union would require the agreement of the British people in a referendum. That is the principle, so for us the test for the sort of hypothetical treaty change that my hon. Friend is describing would be whether it transferred competencies or powers from this country to the EU. I do not want to stray too far from the subject of the Lords amendments we are discussing, but the hypothesis that he describes could just as well be a question of a quite separate intergovernmental treaty between members of the eurozone, for example, as an amendment to the treaty of Lisbon, which would require the assent of the United Kingdom.
Mr Cash
Let me have one last shot. Does the Minister concede that there is a world of difference between the members of the coalition Government having entered into an agreement between themselves for purposes that suit them and the constitutional convention that a referendum is required when there is a fundamental constitutional change in the relationship between us and the European Union? It is as simple as that.
Mr Lidington
We sought in this Bill to define a constitutional change of the sort that my hon. Friend describes in terms of a transfer of competencies or powers from the United Kingdom to the European Union. That seems to us to be a significant constitutional change and the definition is one that we have incorporated into the Bill. Now, if he will forgive me, never mind how delightful I find his interventions, I think I ought to make some progress in addressing the Lords amendments directly.
Let me deal first with Lords amendments 3 and 5, which one might term the threshold amendments. They would provide for a turnout threshold of 40% for any referendum under the Bill. If that threshold were not met, regardless of the result the final decision over whether to ratify a treaty change would pass from the people back to Parliament. That runs contrary to the spirit and intention of the Bill and would leave the British people in real doubt about the effect of their vote.
I know that the intention of colleagues in the House of Lords was to safeguard the sovereignty of Parliament, but I do not agree with them that the Bill would challenge the status of Parliament. In fact, Parliament will have a much stronger role than ever before.
Mr Lidington
I am not going to speculate on a hypothetical Scottish referendum. We have said clearly not just on this Bill but on the Bill that authorised the referendum on the alternative vote system that we felt the decision should be taken by those people who voted, and the outcome should not depend on any artificial threshold that we chose to impose.
Mr Cash
My right hon. Friend may recall that it was my amendment that led to the question of the threshold in the AV Bill. Does he accept that something profoundly different went on in the 1970s regarding Scottish devolution, because it was a different formula? On this particular issue, however, there is no doubt that the same kind of spontaneous combustion would occur in relation to any referendum on the European issue, fortunately, and the same kinds of figures would prevail as were registered in parts of Staffordshire—80% against the Government’s proposals to enter into a treaty that was unacceptable to the United Kingdom. There is nothing that anyone can do about it. Tests, thresholds and all the rest of it would be swept away.
Mr Lidington
I am confident that if and when a British Government made a proposal to support a treaty change to give extra powers to the European Union and put that to the people, the turnout would be significantly above 40%. I have confidence in the voters.
Mr Lidington
One thing that I have learned in my 19 years in this place is that each House is very jealous of its own procedures and privileges, including what the rules should be on the declaration of financial interest, so I think we should leave that to the House of Lords authorities to decide.
I am surprised that the threshold amendment was supported in the House of Lords by the official Opposition Front-Bench team. I hope that when the hon. Member for Caerphilly (Mr David) catches the Deputy Speaker’s eye, he will provide some explanation of that course of action and indicate whether he plans to lead his party through the Lobby in defence of a 40% threshold, although he has probably given up hope of leading the hon. Member for Luton North.
That support is particularly astonishing because the hon. Member for Caerphilly is seriously at odds with his, and my, immediate and distinguished predecessor. It was the hon. Member for Rhondda (Chris Bryant), who was Labour’s spokesman on Europe, who said repeatedly in debates on 2 November last year that he disagreed fundamentally with the very idea of thresholds, saying:
“I do not agree . . . about thresholds in referendums because, broadly, they are not a good idea.”—[Official Report, 2 November 2010; Vol. 517, c. 846.]
He repeated that a few columns later. As a Conservative politician, I feel slightly nervous trespassing on the frontier between Caerphilly and the Rhondda, but the hon. Member for Caerphilly owes the House an explanation for this departure in Labour party policy that he has presumably devised and implemented.
Amendments 6 to 13 are very significant indeed in their impact. They would remove from the referendum lock several passerelle decisions that would transfer power and competence from Britain to the European Union. The other place accepted that decisions to adopt the euro, give up UK border controls, or create a single, integrated military force should require a referendum. That was a welcome step, but it is not enough. The coalition agreement set out clearly that
“no further powers should be transferred to Brussels without a referendum.”
All the decisions included in clause 6 as it left the House of Commons would constitute such a transfer.
Some Members of the Lords felt the original clause 6 did not provide Ministers with what they termed sufficient “pragmatic flexibility”. I would say in response that it is a direct consequence of the abuse of so-called “pragmatic flexibility” in the past that there is such lack of trust in the European Union today, and in Governments as a species, for decisions taken on European Union matters. It is that lack of trust which the Bill seeks to address. Speaking as someone who disagrees with some of my hon. Friends on the Back Benches, I want to see the United Kingdom playing a vigorous, active, constructive role on behalf of our people within the European Union. Our ability to do that and to enjoy the confidence of the British people in so doing will be enhanced if we can point to the safeguards that are provided for in the Bill included in clause 6.
Mr Cash
On that important point, is my right hon. Friend aware of the remarks of the Prime Minister as reported in The Spectator only a few days ago on the question of the renegotiation of the existing treaties, which I called on the Prime Minister to do when he came back from the last European Council summit? Does the Minister for Europe know that I tabled a written question to the Prime Minister asking him what objectives he has set to maximise what he wants from the UK’s engagement with Europe, and whether such objectives will include any opportunity to renegotiate the UK’s relationship with the EU? As the Minister must know, the answer that I received today says that the Prime Minister is not going to answer that question, I am afraid, and that he has transferred it to the Secretary of State for Foreign and Commonwealth Affairs. Does the Minister have an answer for me, therefore, to the question that seems to have been transferred to him?
Mr Lidington
The hon. Gentleman is nodding, so he must explain why members of his party—not just Labour Back Benchers but official spokesmen in the House of Lords—trooped through the Lobby to say that they wanted to scrap the British veto and allow the fate, for example, of the UK’s rebate to be subject not to consensus but to qualified majority voting. That would be the impact of the measure. The hon. Gentleman is saying that he would remove from the referendum lock a decision to switch from unanimity to QMV on that matter.
Mr Cash
Does my right hon. Friend agree that perhaps it has something to do with the report on the question of economic governance, in which it appeared as if the underlying theme expressed by certain Opposition Members in the House of Lords was edging us towards the prospect of fiscal union? There really is a substantial difference in policy, principle and philosophy, if I can use that expression, in their attitude to the EU and that of the House of Commons.
Mr Lidington
My hon. Friend makes a good point. The Opposition need to own up to where they are coming from. If the hon. Member for Caerphilly wants to intervene and say that his Front-Bench colleagues in the House of Lords had gone rogue and he was unable to control them, that he was sorry and he did not really mean it, a plea for forgiveness might be entertained. But if he really supports the proposal to remove decisions on the MFF from the referendum lock, he should say so clearly to the House, because the Labour party did not say that when the Bill was debated in the House of Commons.
Mr David
I find it amusing and surprising that the Minister is dismissive of senior Members of the House of Lords such as Lord Brittan, who not only had reservations and disagreed with parts of the Bill, but said that there was nothing in the Bill at all with which he could agree.
Madam Deputy Speaker (Dawn Primarolo)
Order. It has been interesting to hear hon. Members discuss their opinions of the careers of distinguished Members of the House of Lords, but I should like the Minister to return to the business before the House, which is Lords amendment 3, and his views on that, rather than on anyone in the House of Lords.
Mr Lidington
My hon. Friend is quite right. In a previous Parliament, when we voted for constitutional legislation as far-reaching as the devolution of power to the Scottish Parliament and the Assemblies in Wales and Northern Ireland, we did not vote for the inclusion of sunset clauses. Parliament took the view that if that legislation, in due course, proved not to be workable, or if there were a profound change in the public mood or a new Government were elected with a mandate from the people to effect changes and reverse that devolution, that was a matter for the future Parliament at that time. The idea that we should impose a sunset clause in this case simply because it is something new seems to be completely inconsistent with the way in which Parliament and successive Governments have approached previous constitutional reforms.
Mr Cash
I am interested in the line that my right hon. Friend is taking. Without pre-empting any other discussion, does he agree that this is also about the whole question of our membership of the European Union being only on loan from this House because under the Factortame decision Lord Bridge made it clear that it was a voluntary act and no more? Does he therefore think that inserting a reference to the European Communities Act 1972, as proposed in the amendment tabled by the former Lord Chancellor, Lord Mackay of Clashfern, would be making a profound mistake in thinking that this all hinges on the Act when in fact it depends on Parliament itself?
Mr Lidington
My hon. Friend is inviting me to comment on the subject matter of the third group of amendments. I hope that he will forgive me if I delay commenting in that fashion until we reach those amendments.
This Bill places Parliament at the heart of every decision to be considered. Each decision will need parliamentary approval, whether by Act or by resolution. The sunset clause would take that power away from Parliament, and until such time as part 1 was revived, none of the controls in part 1—not just the referendum lock but none of them—would apply. Some colleagues in the other place claim that the Government are binding future Governments and not themselves. However, we have already said that we will use the Bill to ratify the current treaty change on the eurozone stability mechanism, and we will also use it to consider the treaty change required for Croatia’s accession. Once the legislation is enacted, this Government, too, will be bound by it.
There is another reason why a sunset clause is unnecessary. The previous Government set up a system of post-legislative scrutiny under which the Government of the day are required to publish a memorandum to Parliament on the operation of each Act of Parliament up to five years after the commencement of that Act. This is examined by relevant parliamentary Committees, which can decide whether to conduct a detailed examination of that legislation. I am happy to put on record that we think that this is a good idea and that a future Government must publish a full report on how this Bill has been used within five years of its becoming law. That will result in the clarity and the reflection that colleagues in the other place seek, but without arbitrarily depriving the British people of their say.
The case for this Bill is simple: it is to give the British people the chance to have their rightful say over future changes to the EU treaties, whether through formal revision or use of the passerelles that transfer competence or power from this country to the EU. The Bill does not substitute the British people for Parliament, for Parliament will continue to have a central and strengthened role in approving such key decisions, but it provides a vital opportunity to address the disconnection that has developed over the years between the British people and the decisions taken in their name by Parliament and Government. This group of Lords amendments would not help us to achieve these goals—indeed, they would seriously jeopardise our chances of doing so—and that is why I hope that this House will disagree with them.
Mr Cash
Does the hon. Gentleman accept that the question of fettering a future Parliament is secondary these days, unfortunately, to the fact that the Supreme Court could, as the European Scrutiny Committee examined in its evidence and report on this Bill, assert that it has ultimate authority in certain circumstances? That is the mischief that we must ensure does not happen under any circumstances. We will come on to debate clause 18 and the Government’s proposals, which open that door in an alarming fashion.
Mr David
Like the Minister, I do not want to stray into that debate. One thing that has been clear from this whole debate, including on Second and Third Reading, is the real threat to this institution comes from judicial activism. That threat does not come so much from the European Union as from our own judiciary. We must be mindful of that.
Another expert witness who gave evidence to the hon. Gentleman’s Committee was Vernon Bogdanor, a research professor at King’s college London and a former tutor of the Prime Minister. He said that
“the purpose of the bill must be to prevent a future government from supporting such an amendment or transfer without a referendum. The bill seeks, in other words, to bind a future government. That seems to me inconsistent with the declaratory proposition that Parliament is sovereign.”
That is an extremely powerful statement. We must consider the full impact of this legislation.
Mr David
I very much hope that in this Parliament that will not be the case. I have taken heart from the rebellious comments and actions of the hon. Gentleman. I very much hope that Parliament will assert itself through the course of this Parliament and that his concerns will prove to be mistaken.
I hope that most Members of this House would uphold the time-honoured doctrine, despite the qualifications that have been expressed, of one Parliament being unable to bind its successor. I hope that Members do not question that. We should never seek to dictate in one Parliament what should happen in the next. I concede that, strictly speaking, the European Union Bill does not bind future Parliaments because, as has been said, those future Parliaments could modify the legislation. Nevertheless, at the very least, the Bill questions that principle and strongly goes against its spirit. I say that because the heart of the Bill will effectively come into operation during the next Parliament.
In the other place, Lord Howell said from the Government Front Bench that the Bill will be “operative” in this Parliament. He cited the Government’s commitment to bring forward an Act of Parliament on the European stability mechanism, the so-called bail-out mechanism, and its inclusion in the treaty. The Minister has just said that an Act of Parliament will be brought forward if Croatia accedes to the European Union. The Government have said consistently that they will not agree to any transfer of sovereignty to Brussels during this Parliament. That is an important qualification. There will therefore be no need to hold a referendum. Of course, we may see a significant transfer if the Government decide to opt in to the European Court of Justice opt-in provisions. The Government are illogically against holding a referendum if they decide to opt in. That reinforces the point that the main intention behind the Bill is to influence future Governments and Parliaments. What happens during this Parliament under the Bill will be relatively small beer. We are talking about a piece of legislation that will have a direct influence on the Governments and Parliaments of the future, after the next election. That is the fundamental point. Despite the qualifications that have to be expressed for the argument to hold up, that is an important and telling point.
Mr David
It is important that we recognise that the British people have a voice, which is why we have been clear that it is important that referendums are held on major constitutional issues and the issue of a single currency. It is important that the British people are engaged in the debate about Europe in a way that they have not been for a good time. However, the way to do that is through constructive and rational debate. There is nothing wrong with having referendums on big, important issues, but we are firmly against having referendums on paper clips and minutiae.
Mr Jenkin
I agree with my hon. Friend. I rather like the hon. Member for Caerphilly, who is an engaging and assiduous parliamentarian, but I do not know whether he has given vent to his real feelings on these matters. Unfortunately, if one is speaking from the Front Bench, one’s real feelings rarely matter. One just has to do the bidding of one’s superiors. I just wish to end by—
Mr Cash
Before my hon. Friend ends his speech, would he be good enough to allow me to put one thought to him? The number of occasions when the referendum will be required has been dramatically, drastically and absurdly reduced by the Lords amendment. However, does he agree that the fundamental question is not whether we select what functions might or might not be affected, but the whole business of our relationship with the EU, that completely failed project, which is quite clearly causing enormous damage not only to the UK but to other countries? That is the test on which a referendum should be determined. It should not be determined just on the minutiae of individual questions, including the single currency, foreign policy and so on.
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.
Kelvin Hopkins
I will speak on these amendments only briefly because much has been said already that I need not repeat. I took the trouble to spend some time in the Library going through the Order Paper and amendments, and I wrote against each of them, “KH against”—those are my initials, so it meant that I was personally against all of them—which seems to be in line with the Government’s position. I hope therefore that my hon. Friend the Member for Caerphilly (Mr David) will advise Labour Members either to abstain or to support the Government’s position.
The amendments have clearly been moved by people who are trying to undermine and wreck the Bill by making it toothless. It is not a strong Bill but, with the amendments, it would be feeble indeed. To restrict referendums to these three areas only would leave enormous scope for those who want constitution creep to succeed. I do not want it to succeed; I want the Government at least to consider a referendum for any significant change to any EU constitution. As to joining the euro, I think that the Labour Front Bench has become more Eurosceptic. There is no prospect of us supporting joining the euro, and one can see that very few Labour Members are willing to come along and take a strongly pro-euro position, as was perhaps the case under the previous Government and ones before that. I am pleased about that because I have been critical about joining the euro for many years.
The euro is in very serious trouble. As of today, we are talking about Italy—not just Ireland, Portugal and Greece—as being a significant problem. I also understand that the French proposal to roll forward the Greek debt and not to take too strong action has been rejected––I suspect by Germany. The euro faces serious problems, and I suspect that before long the euro may unravel and that several national currencies may be re-established to allow countries to adjust to their economic needs and choose their own interest rates and parities with other currencies, including with what remains of the euro.
Mr Cash
Does the hon. Gentleman accept that over the past few months we have been trying to stem a tsunami, and that for practical purposes it all boils down to one thing, which is the European question as a whole? Does he also agree that the invasion of the Italian interest, and possibly the Spanish and others, is proof that the whole project is a total failure and that the British people agree?
Kelvin Hopkins
The hon. Gentleman recently said that the tectonic plates were starting to move. I think that he is right. Senior civil servants have even said in public that the game is over. I have talked about the sands shifting rather than tectonic plates—different metaphor, same thought. The Governments of Europe will now have to listen not just to their own people, who are increasingly Eurosceptic, but to those in the global financial system who now have doubts about the future of the euro.
My hon. Friend the Member for Caerphilly said, “We’re not going to have a referendum on paper clips.” Such matters are indeed referred to the European Scrutiny Committee, of which the hon. Member for Stone (Mr Cash) is Chair and, on the Committee, we leave no stone unturned, as I am sure he agrees. Paper clips are not a constitutional matter, although some people might argue that we do not want the EU interfering in our paper clips. On constitutional matters, we want to leave things open for Governments to choose when a referendum is appropriate, not to restrict the provisions to the areas in the amendments. There are those who would seek to use every opportunity to extend the EU’s control by skirting carefully around these tight definitions of areas that would require referendums. However, the Committee, led by our Chair, does a good job on non-constitutional matters—several of its members are in the Chamber now and would, I am sure, agree.
The sunset clause puts the onus on a Government after an election to reintroduce the legislation, and no doubt a sensible Government would do that, but if there is no sunset clause, the onus is on the new Government to get rid of the legislation. They could do that by repealing it, but they would then face the anger of the British people for having taken away their referendum rights. A sunset clause is very different from the possibility of repeal after election. The House can repeal any legislation—even, I suspect, treaty obligations. Over time, we could say that we wish to withdraw from a treaty. No doubt we would have to give notice and negotiate, which would cause all sorts of difficulties, but the House could, if it chose, withdraw from a treaty. If there were to be a referendum on membership of the EU and there was a substantial vote in favour of withdrawing, the House would have to debate withdrawing from a treaty. It would have to tell that to the EU. I am not saying that that is going to happen any time soon, but it is a possibility. If a particular piece of legislation is not to the taste of a future Government, they could repeal it, but that is very different from having it automatically die at the point of an election. I therefore strongly oppose the sunset clause, and if there are Divisions on any of the Lords amendments, I will certainly vote against them.
Chris Heaton-Harris
If only the hon. Gentleman’s Front Bench were as wise as he is. I know that he has been campaigning on this issue for a long time, and I thank him for his contribution.
If only those on the hon. Gentleman’s Front Bench could come clean and tell the British what they actually believe on these matters. Do they trust the British people enough to give them a vote on these matters? We are not sure, because up at the other end of the building, where the red Benches are, Labour Members—including Front Benchers—have trooped into the wrong Lobby on these matters on too many occasions. We would very much like to know where Labour Members stand on this. This is the fog of war as far as they are concerned. They want to rattle a few cages and see what comes out, but they certainly do not want to get caught stating any policy. However, these matters are fundamental to the sovereignty of the United Kingdom, and it would have been good to hear something definite from the hon. Member for Caerphilly tonight. Perhaps the hon. Member for Wolverhampton North East (Emma Reynolds) will help us out later.
Mr Cash
In a sense, this whole group of amendments is a con trick and an illusion. The test to be applied in regard to the number of people who vote in an election is a matter on which I spoke very strongly in the AV referendum debate. As my hon. Friend the Member for Daventry (Chris Heaton-Harris) said, many of the people who tabled amendments on thresholds were not the slightest bit interested in them at that time. There is therefore an inconsistency of principle involved. What they are promoting, and everything that they have been doing over the past 27 years since I have been on the European Scrutiny Committee, during which time I have had the pleasure of watching their perambulations and machinations, is designed to force us further and further down the route towards European integration. They have advised Governments of all hues on the Maastricht treaty, the European Government, the exchange rate mechanism and the Nice and Amsterdam treaties.
I must have tabled the best part of 1,000 amendments against those treaties over the past 27 years, and with great pleasure. I have devoted, I suppose, almost a political lifetime to opposing every single thing that those noble Lords have put forward. I do not need to specify them individually; all I will say is that I regard them as having conducted a process that has led to the destruction of the European Community and, now, the European Union. One has only to look at what is happening today and to ask who is responsible for what has occurred. It has been a concert party—a concert party involving not only the United Kingdom establishment but, worse still, the European establishment alongside the United Kingdom establishment—that has led to the mess that the European Union is in now. As I said to my right hon. Friend the Prime Minister when he came back from the European Council the other day, although we are glad that he felt obliged to deny that we would be involved in the Greek bail-out—having conceded, I am sad to say, that we would be involved in the bail-out of Portugal—he now has the opportunity, as the Prime Minister of this country, to go forward in the national interest and renegotiate the treaties, to get us out of the mess that those noble Lords, individually and collectively, have got us into.
Steve Baker (Wycombe) (Con)
We are all grateful to my hon. Friend for his lifelong service on this issue, but on the esoterica of this group of amendments, can he clarify for me that, taken as a whole, they are simply spoiling amendments?
Mr Cash
They are, and it is for that reason that I will not be able to vote for them, even though I happen to have some sympathy for the idea of a reasonable test for referendums. However, these amendments are a blind—an attempt to get people to go along with the 40% test for the electorate on the one hand, but also to associate them with a whole range of matters that are entirely inimical to the interests of the United Kingdom. I am not particularly interested in the list that the Government have produced; as I said at the beginning of the proceedings on this Bill, I think that it is a mouse of a Bill. The issue on which we now need to concentrate is the big landscape and the fact that, as the European Council on Foreign Relations paper argued the other day, Maastricht has to be revised. We will have to return to the question of what kind of Europe we want.
This list of proposed matters—which will never come up in this Parliament, as we know—is, therefore, a blind in its own way, but to reduce it to three core issues really makes it an absurdity. I say to my right hon. Friend the Minister that on the big landscape, this is the time for us to take a bigger, more responsible and more statesmanlike view, in the interests of the people of this country, to see the European question as the failure that it is and to get down to the serious business of renegotiating all the treaties and moving to an association of nation states, so that we can work together co-operatively, rather than by co-ordination, to deal with the real, practical problems that this country faces—the Brazils, Indias and Chinas of this world—instead of dancing on the head of a pin, as we are with most of this Bill.
My argument to my right hon. Friend is very simple. He may have the advantage of having come forward with a few proposals that touch at the margins of this issue, but the real question is what is he—or, indeed, the Prime Minister—going to do to get us out of the mess that those treaties have got not only us but the people in Europe into? Indeed, young people aged between 18 and 25 in several countries are now suffering unemployment of 47%. It is absolutely impossible to accept that, and as I said in the 1990s, when this whole system collapses, it would not surprise me to see the rise of the far right and massive unemployment, destabilising the entire European Union, with the most devastating consequences for the international order. That is the problem that we are faced with, and that is why these amendments are not to be accepted.
Lords amendment 3 disagreed to.
Lords amendment 4 agreed to.
Lords amendments 5 to 13 disagreed to.
Clause 18
Status of EU law dependent on continuing statutory basis
Mr Lidington
I should like first to recognise that the issue we are debating is, to an extent, an issue of detail that has aroused some fairly intensive debate, involving some extremely experienced and high-powered lawyers. It is not an issue related to the rationale for clause 18 as a whole, and I welcome the acceptance by the House of Lords of the rationale for a provision of this nature. Indeed, the author of Lords amendment 14, Lord Mackay of Clashfern, said when he presented his amendment on Report in the other place that there was very little between his position and that of the Government on the point of principle, saying:
“It is important that this declaratory measure”—
that is, clause 18—
“should be made because of the theory sometimes propounded that Community law in the United Kingdom derives from the treaty alone by virtue of the European Union legal order. I believe that it is right that we should make it plain at this juncture that that is not so.”—[Official Report, House of Lords, 15 June 2011; Vol. 728, c. 790.]
However, noble Lords who voted in support of Lords amendment 14 took the view that the European Communities Act 1972 is the only route by which EU law takes effect in the United Kingdom, and that all the references to directly effective or applicable EU law in other Acts are linked to that Act. Lords amendment 14 therefore amends clause 18 to refer specifically to the European Communities Act 1972, rather than to the wider reference point of “an Act of Parliament”, in order to affirm that this is the sole route by which directly effective and directly applicable EU law takes effect in the UK.
Mr Cash
I rather suspect that my right hon. Friend expected that I would rise at about this point. Very quickly, the European Communities Act 1972 might be the Act of Parliament by virtue of which we voluntarily entered into the acceptance of European law—as it has accumulated, like a tsunami, since 1972, both widening and deepening—but does he not agree that the crucial words are those of Lord Bridge in the Factortame case, who said that we voluntarily did that? Therefore, the special significance of the 1972 Act has to be tempered by the fact that it was what Parliament decided at that time. That is the crucial question to which we shall turn shortly.
Mr Lidington
I agree with my hon. Friend, and I am sure he will recall the debate on these matters on Second Reading and particularly on the first day in Committee when we spent an entire day debating clause 18. He will also recall—it is clear from Hansard—that I made it clear on behalf of the Government that the European Communities Act 1972 had effect in this country, so European law had effect here insofar as it stemmed from that piece of legislation, because Parliament had willed that that should be the case. If a future Parliament were to decide to repeal that Act, it would be perfectly within that Parliament’s power so to do, although my hon. Friend would be the first to appreciate that there would be immediate consequences for the UK’s treaty obligations. There would be a political crisis at that point. We debated that important issue of principle for a day in Committee, as I said, but I want to try to focus on the Lords amendments now.
Mr Cash
Indeed. That is precisely why my right hon. Friend knows I must move on to ask him about the assertions of certain members of the Supreme Court—criticised by the late Lord Bingham in severe terms—to the effect that Parliament has only a qualified sovereignty and that the ultimate authority effectively rests with them. It is precisely for that reason that we should be extremely anxious to ensure that no words are imported into this clause, as the Bill leaves this House and will finally be enacted, that would in any way allow the Supreme Court to move in on that territory and claim ultimate authority.
Mr Lidington
I want to make some progress.
It is not only the devolution legislation that mentions European Union law. The Company Directors Disqualification Act 1986, the Chiropractors Act 1994 and the Competition Act 1998 are further examples of legislation that allows European Union law to have direct effect in this country. Section 9A of the Company Directors Disqualification Act requires the United Kingdom to make a disqualification order against a person in certain circumstances, including circumstances in which an undertaking commits a breach of competition law under either article 81 or article 82 of the EC treaty—now articles 101 and 102 of the treaty on the functioning of the European Union. That Act refers directly to the treaty provisions without referring to the 1972 Act.
The amendment accepted by the other place removed the reference that makes it explicit that only by virtue of such Acts does directly effective and directly applicable EU law take effect in this country. Removing that reference leaves open the possibility of arguments that directly effective and directly applicable EU law could enter our law by other means, thus undermining the rationale behind the clause. The amendments that the Government propose seek to restore that important qualification, and to remove any doubt about whether directly effective or applicable EU law could enter United Kingdom law by other means.
Mr Lidington
We welcome the acceptance in the House of Lords of the principle of clause 18, and recognise the concerns raised by colleagues there about the formulation of the clause. We believe that our amendments will both meet the concerns expressed by the proposers of the amendment and ensure that the provision reflects the law accurately. I therefore urge Members in all parts of the House to support them.
Mr Cash
I am sorry that the Minister deemed it unnecessary, or undesirable, to accept my intervention, but that does not prevent me from making my point.
As the Minister will recall, it was the clear view of the European Scrutiny Committee that clause 18 was unnecessary. I am glad to say that a conversation in which I engaged today with one of my—let us call him—long-standing contestants in matters European, Lord Howe of Aberavon, confirmed that he shared our view. I have great respect for his legal knowledge, and I am delighted that we have achieved such a degree of understanding.
The Government are embarking on what is, in matters constitutional, an extremely dangerous path to tread: a primrose path that could lead to disaster. I know that there was a great deal of detailed discussion—I hear of these things—with Lord Mackay of Clashfern, who, after all, used to be Lord Chancellor, and indeed was Lord Chancellor at the time of the Maastricht treaty. I remember well, as I am sure he does, that the whole business of European government was conceded, to our deep regret; hence the rebellion which I had the pleasure to lead.
The Government appear to have been caught on the horns of a dilemma, and I think that they should have dealt with that in a different way. On one hand they are confronted with the European Scrutiny Committee, the expert legal advice that it has received, the further consideration that it has given to these questions throughout the intervening period, and its conclusion that clause 18 is unnecessary and undesirable. On the other hand—the other horn of the dilemma—is the view of Lord Mackay of Clashfern that the amendment is merely declaratory.
Mr Jenkin
May I just test my understanding? Am I right in thinking that my hon. Friend is saying that the original wording of the clause, covered by the Interpretation Act, covered everything, but referring specifically to the European Communities Act 1972 serves to limit the meaning of the clause so that future amendments to the 1972 Act will not be covered by it and are therefore subject to the interpretation of the Supreme Court?
Mr Cash
Effectively yes, and that is the one thing we wanted to avoid above all else. That is why the Committee took the view that it did on clause 18, as shared by Lord Howe of Aberavon, who is by no means a Eurosceptic. On a matter of clear interpretation after very considerable consideration—he is both a former Foreign Secretary and distinguished Queen’s counsel who brought the European Communities Act into being in the House of Commons in 1972—he says that clause 18 is completely unnecessary. He agrees with the Committee, and now, for the sake of trying to counter-balance the views of Lord Mackay of Clashfern, the Government are falling into the trap that I have described and making the potential for interpretation by the courts extremely dangerous.
Mr Lidington
I respect my hon. Friend’s expertise in this area, but to suggest that Lord Mackay of Clashfern would be party to any kind of sleight of hand is not to do him justice, and I hope that my hon. Friend would reconsider that point.
Mr Cash
I have no problem in acknowledging someone’s powerful views on constitutional questions. For example, I remember during the Maastricht proceedings that the noble Lord was quite clear on the question of whether the Maastricht treaty took us further and deeper into the integration process. He argued that it did not make any difference in principle because the 1972 Act already conceded that there had been a change in the constitutional position and, to all intents and purposes, there was, thus, no real change in the substance of the issue. That is not to accuse anybody; it is merely to recognise that they have a constitutional viewpoint and to recognise how they really regard the encroachments on our sovereignty, which were evident in the Jackson case, in the evidence that the Committee received from many distinguished witnesses and in the fact that the Government’s previous explanatory notes led us into a situation where we criticised the Government and they withdrew the offensive words, precisely for the reasons that I am presenting.
The reality is that we have caught out the Government on their wording and they have now acquiesced in other wording which opens the door to statutory interpretation by the Supreme Court. That is the kernel of this matter. Whether or not my right hon. Friend the Minister really likes the way in which I have expressed this is neither here nor there. The real question, on which I challenge him, is this: does he deny that the wording in the Government’s amendment, in response to the Lords amendment, imports the opportunity for the Supreme Court to apply statutory interpretation and, thereby, to create a situation that could be best avoided, as set out by Lord Howe of Aberavon, our European Scrutiny Committee and the evidence that we received from so many people, by having no clause at all, rather than the current clause 18?
The Minister knows that I feel very strongly about the fact that we promised in our manifesto a sovereignty Act, and that was the consequence of discussions at the very highest level with the leadership. We knew that that was put into the manifesto as a direct response to the promises that were made. The bottom line is that we were given a second-rate provision that is unnecessary and that has since been criticised by the European Scrutiny Committee and eminent constitutional experts, including Lord Howe of Aberavon, and what the Government are introducing merely acquiesces to a degree in what Lord Mackay of Clashfern has proposed. That simply is not good enough and the Government should withdraw the proposed clause while they have the opportunity to do so. It is for those reasons that I shall be voting against it.
Mr David
This long debate, which has taken place over a number of months, has almost come full circle. I recall that we began our deliberations with the hon. Member for Stone (Mr Cash) and others saying that what had been originally promised was a sovereignty Act but what was proposed was a truncated, boiled-down and diluted version of their intention in the form of a solitary clause—clause 18. Whichever permutation of clause 18 one looks at, be it what was originally suggested by the Government, the Lords amendment or the Government amendment to the Lords amendment, one finds that it is basically a declaratory statement. It does not take us back or forward; it is a pious declaration, a statement of fact and a statement of the legal position at the moment. Therefore, it does not do any harm and, in fact, it could possibly be useful.
There has been a modest change of emphasis in Government amendment (b) to the Lords amendment, and it is a sensible one. The words “by virtue of an Act of Parliament” were omitted from the Lords amendment and we were concerned that the emphasis was being placed solely on the 1972 Act. Although we recognise that that is the most important piece of legislation regarding the primacy of European law, other items of legislation are involved here. I was particularly pleased that the Minister referred to the legislation on the devolved institutions, as that is important in ensuring that we take a comprehensive approach. Therefore, the Government have put forward a modest improvement to what was suggested by the Lords. I recognise that they have gone some way towards accommodating what the Lords have said and I welcome that, which is why we will be supporting the Government amendment.
Mr Cash
Is the hon. Gentleman actually saying that he agrees with the Government’s proposal, notwithstanding what has been said by the European Scrutiny Committee, Lord Howe of Aberavon and all the other people I have mentioned, and notwithstanding the most powerful legal advice that has been submitted, which suggests that this is a very unwise and dangerous move, for the reasons that I have set out?
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 Cash
Would my hon. Friend be interested to know that I was talking to an extremely eminent lawyer, although I hesitate to say who it was, and when he heard my arguments on clause 18, he said, “If a majority of the justices of the Supreme Court took the view that you are taking, it would be open to Parliament the next day”—he used those words—“to reverse that”? That troubles me, because if that happened it would precipitate a 100% crisis.
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 Lidington
My hon. Friend has made his point. Not only Lord Mackay but the Lords Constitution Committee recognised that clause 18 is a reflection of the existing position in United Kingdom law. I do not want to get into a long argument with my hon. Friend the Member for Stone about the report of the European Scrutiny Committee, but that report focused largely on the bigger question of whether parliamentary sovereignty was a common-law principle. I repeat to the House what I said during Committee—that this clause does not get into that issue at all. It makes clear the basis on which European law takes effect in our domestic legal order.
Let me address the detailed point that has been put. Both my hon. Friends the Members for Stone and for Harwich and North Essex argued that the reference to the 1972 Act taken together with the Interpretation Act meant there was a risk of future amendments to the 1972 Act falling outside the scope of clause 18. This point was specifically considered in the drafting of the Government’s amendments to the Lords amendment. That is exactly why the Government’s amendments, especially amendment (b), do not limit the clause to the 1972 Act but also take account of all Acts that might give rise to directly applicable and enforceable EU law, which will include any Acts amending the 1972 Act. I hope that with that reassurance colleagues on both sides of the House will be able to endorse the Government’s amendments.
Amendment (a) made to Lords amendment 14.
Amendment (b) proposed to Lords amendment 14.— (Mr Lidington.)
Question put, That the amendment be made.
Future Diplomatic Network
William Cash Excerpts(13 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Hague
Of course Whitehall has experience in all those matters, but the hon. Gentleman will also see from my statement that running the necessary network of sovereign posts and consulates around the world is very expensive for any Government. Any newly independent nation with any hope of maintaining its diplomatic strength in the world would have to come up with the several hundred million pounds in additional costs that would be necessary.
Mr William Cash (Stone) (Con)
The Foreign Secretary makes an excellent case for bilateral relations. I am sure he will understand if I point out that under the Lisbon treaty, the External Action Service creates circumstances in which there could be conflict between our own national interests and those promoted by the European Union. Does he therefore accept that it would be far better if we were to retrench, and abolish the External Action Service by renegotiating the Lisbon treaty?
Mr Hague
I think that if my hon. Friend had his way, all our relations in Europe would be bilateral. He and I both opposed the Lisbon treaty and the creation of the External Action Service, but we have to work with what we have. As we are in this situation, and as we respect the fact that we are a coalition Government, our approach is to make the best of this and to ensure that there are British people working in the External Action Service. I hope that we shall not reach a point of conflict, as my hon. Friend puts it, between the External Action Service and the United Kingdom’s approach to foreign affairs, because decisions on foreign policy are taken by unanimity in the European Union, and in the event of a direct conflict arising, the British Foreign Secretary would be able to veto any such proposal in the EU.
Middle East and North Africa
William Cash Excerpts(13 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Hague
Sympathy from the hon. Gentleman is entirely unnecessary in my case; I can assure him that I will be fine without it. Anyway, I suppose I am grateful for it. Let us think about the alternatives for which he seems to be calling. One is to weaken in what we are doing, to say that we do not really care what happens in Libya, and to allow Colonel Gaddafi to run amok in murdering thousands of his own people, destabilising everything else in north Africa. I reject that alternative. The other alternative to our policy is to say that we are not really going to abide by the UN resolutions and that we will do whatever we are urged to do, because we think that our public’s patience is too limited in any matter of international relations and so we will be panicked into doing other things. I reject that alternative, too. For too many years, we have been accused of not having the necessary legality or moral support for, or an international coalition behind, what we are doing. We are going to maintain those things in what we do in Libya and that requires persistence in the policy we have adopted.
Mr William Cash (Stone) (Con)
The Foreign Secretary and I have had a number of exchanges on this subject. I have a great deal of sympathy with what the hon. Member for Islington North (Jeremy Corbyn) said, because the Prime Minister has written to me today saying that
“we do not rule out supplying lethal equipment, but we have not taken the decision to do so, and there remain legal and practical questions which need to be carefully considered.”
That is the Government’s policy, the legal basis of which seems to be as clear as mud. The problem, very simply, is that we want to relieve the pressure on civilians and to ensure that the people in Libya are properly protected. Unless they are given arms and the right kind of equipment under the resolutions—including paragraph 9(c) of resolution 1970, which I have mentioned before—there will be hand-to-hand fighting and they will not have the ability to deliver. That is where the problem lies and the policy must be made clearer. Why does not the Foreign Secretary go back to the sanctions committee and find out?
Mr Hague
I hope the policy as I have set it out is very clear about the Government’s understanding of what is legal under the UN resolutions and about what we are doing, which is different from going the whole way under the resolutions towards arming civilians and the opposition in certain circumstances. We have not taken the decision to do that, as my right hon. Friend the Prime Minister said in his letter to my hon. Friend. We are giving a great deal of other assistance. We should remember that what the United Kingdom is doing as regards the deployment of the Royal Air Force and its military action over the past five weeks, which has potentially saved the lives of hundreds or thousands of people, is a greater help to the civilians of Libya than we can provide to them in any other way.
Libya (London Conference)
William Cash Excerpts(13 years, 7 months ago)
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Mr Hague
The Government’s understanding of the legal position is the one that I have set out: it lies in the exact words that I used earlier. The Prime Minister used the same words, and I used similar words on the television last night. That understanding is, of course, based on the Attorney-General’s views. As an experienced Member and former Minister, the hon. Gentleman knows the position on Government publication of the legal advice, although he also knows that we have been more forthcoming about that than has sometimes been the case in the past. The advice that I have given to the House—the statement of the Government’s position—is very much based on the legal advice and can be taken as the Government’s definitive view on the matter.
Mr William Cash (Stone) (Con)
Will the Foreign Secretary note that I am glad to hear that the Government have moved somewhat since my exchanges with the Prime Minister a week last Friday, when resolution 1973 was published? May I also say that we cannot have it both ways, and that the Sanctions Committee is also involved in this? Have any suggestions been made to approach it with a view to ensuring that what is done is legally done, in accordance with the best legal advice?
Mr Hague
As my hon. Friend will understand, we are not proposing, at this point, to change our policy on this. If we did so, we would want to be absolutely satisfied that that was not only advisable but legal. We would need to be sure of that and able to assure the House of it, so I will bear his advice in mind.
North Africa and the Middle East
William Cash Excerpts(13 years, 7 months ago)
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Mr Hague
The Prime Minister speaks to President Obama extremely regularly. The same goes at all levels of the US and UK Governments. I cannot tell the hon. Gentleman the number of times they have spoken about human rights, but we have continual discussions with the US Government on all these issues—I spoke to Secretary Clinton last night, for instance. I can update the hon. Gentleman on that point another time, but I do not have the details to hand.
Mr William Cash (Stone) (Con)
My right hon. Friend speaks of human rights, but human rights include the right to live as well as the right to protest. As we speak, it appears that Benghazi airport is being attacked and people there are being massacred. Why have the arrangements for lifting the arms embargo in relation to those in the resistance not been followed up, despite calls by me and others over the past two weeks—when there was time to do that—for such action? I understand the problems, but it appears that no real attempt has been made. I think that we will pay a great price for not having done so.
Mr Hague
Again, I will come on to the situation in Libya. My hon. Friend knows that UN resolution 1970 was passed nearly three weeks ago, which placed an arms embargo on the whole of Libya, as well as many restrictions and sanctions on the Libyan regime. He also knows that we are arguing urgently—these discussions are starting again as we speak in New York—for a new UN resolution that would improve our ability and that of our international partners, including in the Arab world, to protect and support the civilian population in Libya. I will say more about that in a moment.
My argument fits with the issues that hon. Members have been raising. The right to peaceful protest must be respected and responded to with dialogue, and no country can safely or legitimately ignore these demands. Indeed, in both Tunisia and Egypt, Governments paid the price for not responding quickly enough to the aspirations of their people. The example of Tunisia, where preparations for elections are being made, media censorship has been removed, political prisoners have been freed and formerly banned political parties have been allowed to operate for the first time, has inspired others in the region and raised their expectations. To some extent and in some ways, the same is true in Egypt, although there are deficiencies, as the right hon. Member for Lewisham, Deptford (Joan Ruddock) has pointed out. However, Egypt’s internal security agency, which for decades has been blamed for human rights abuses and was regarded as a powerful symbol of state oppression, has been abolished.
These extraordinary times call for an unprecedented response by the international community. We have not brought about these events, and neither we nor our allies can determine the future of middle eastern countries or dictate who leads them, but we cannot be bystanders. Our values and interests require us to be actively involved in encouraging economic and political development, to stand up for universal human rights and to give practical assistance where we can. If change can be achieved peacefully in the middle east, it will be the biggest advance of democratic freedoms since the countries of the old Warsaw pact threw off the oppressive yoke of communism. However, if change cannot be achieved peacefully, we are likely to see turmoil and unrest that sets back the cause of democracy and human rights, erodes gains that have been made, betrays the hopes of many who look to us for support, and damages our interests, including our security. As the Prime Minister said in his speech to the Kuwaiti Parliament:
“political and economic reform in the Arab world is essential as a long term guarantor of stability,”
prosperity and security. We will not be silent in our belief that freedom and the rule of law are what best guarantee human progress and economic success, and that each country should find its own path to achieving peaceful change.
Mr Hague
Yes, very much so. Again, that brings me to my next point.
There are many international organisations, such as the United Nations and the World Bank, that will have an important role to play in supporting democratic development in the region. However, there is a particular onus on European countries to be bold and ambitious. In a sense we have been here before, when we helped the young democracies of central and eastern Europe. The nations of north Africa are not European and will not join the European Union. Nevertheless, this is the most significant watershed in the external relations of the EU since that time, and we must be ready with a positive vision for the region that can act as a magnet for change.
Over the past two months, the Prime Minister and I have made the case in EU meetings for a transformed EU neighbourhood policy that supports the building blocks of democracy in the Arab world, offers incentives for positive change and targets its funding effectively. The German Foreign Minister, Guido Westerwelle, and I wrote to our colleagues last week calling for a comprehensive partnership of equals between the peoples of Europe and the European neighbourhood, underpinned by deeper and wider economic integration and using the many instruments at the disposal of the EU to promote freedom, democracy, the rule of law and human rights. We believe that this transformation partnership should bring all the EU levers and incentives into one policy, and give the greatest support and benefits to those countries reforming fastest, with clear conditions attached.
We have proposed a path towards deeper economic integration with the European market, in clear stages leading up to a free trade area and, eventually, a customs union, progressively covering goods, agriculture and services. We are calling for an increase in the number of scholarships and grants, access to the resources of the European Bank for Reconstruction and Development, the re-apportionment of EU funds in favour of democratic reforms, the removal of existing quotas for countries that disregard the fundamental values of the EU, and consideration of an EU regional protection programme for north Africa to support the protection of displaced persons and to improve local infrastructure.
Mr Cash
In the light of the Prime Minister’s attempts to get a no-fly zone—which are greatly appreciated by many people on this side, and across the House—and the problem of not being able to supply arms to the resistance, surely the Foreign Secretary understands that these problems have arisen because the European Union, among others, has been resistant to those ideas. We do not have the necessary unity, and talking about quotas, assets and all the rest of it has no bearing on the real problem, which is that we need to help the people who are in such peril in Libya at the moment.
Mr Hague
I am going to talk about Libya in a moment. What I am talking about now is the long-term approach of the United Kingdom and, we hope, the whole of the European Union to the region. I am talking about the offer that should be made, and the magnet that should be held out to encourage positive change in the region. If all the levers and policies of the European Union relating to its neighbourhood were brought into one coherent policy, even my hon. Friend might be driven to agree that that could play a positive role in the developments in the region.
Mr Alexander
Let me continue the recently established tradition of the Foreign Secretary in thanking my right hon. Friend for that intervention, especially given that the next paragraph of my speech addresses the issue of trade.
I welcome the fact that the Government now advocate that the Commission should be developing a package of trade measures that addresses in particular the tariffs and quotas that currently lock out north African agricultural goods, not least those from Tunisia. Further, each European country, with their different democratic traditions, should stand ready to assist those countries working to strengthen and support civil society. I hope I speak for all in this House in paying tribute to the work of our own Westminster Foundation for Democracy, and I hope it will be able to play an active role in supporting that transition.
However, just because the media’s focus has moved on from Egypt, that does not mean the process of change in Egypt is now complete. When the Minister winds up, will he update the House on what discussions the Government have had with the military authorities in Egypt about the timetable and preparations for the free and fair elections?
Mr Cash
On the right hon. Gentleman’s recitation of the advantages of the EU in the context of trade and investment, it should be pointed out that we have been supplying moneys to the Maghreb countries for generations, so there is nothing new in that. The real question about the crisis in Libya, and the massacre that may yet come, is this: does he believe it was right that there was resistance within the EU to the no-fly zone, and what does he think about the failure to lift the embargo for those in the part of Libya around Benghazi who need arms and are fighting valiantly, but who are increasingly in peril?
Mr Alexander
Let me try to address each of the three questions that the hon. Gentleman cunningly asked within that single intervention. First, I was seeking to make a different point about the EU position. I was saying that trade barriers are a crucial issue if we are to enable these countries to trade their way out of the stagnation that has contributed to many of the problems in the region. I accept that there are issues in relation to resource transfer, and I am on the record as saying about the EU’s external budget that we should look at whether, for example, resources should be transferred from Latin America to north Africa in the light of what we have witnessed. There is a pressing challenge in relation to trade, therefore.
Secondly, on the European Council’s deliberations on Friday, it was disappointing that there were such discordant voices around the table. It is not yet fully clear to me whether a specific proposal was tabled at the EC, or whether a general conversation ensued. From my experience of working in the Foreign Office as Europe Minister in a different period, I was surprised that the judgment was made that a joint letter issued by the British Prime Minister and the French President was likely to secure European unity. Given the need to try to secure not least the support of Chancellor Merkel, I would have thought a more judicious approach might have been to try to ensure the co-operation and engagement of Berlin at an earlier stage in the process.
The hon. Gentleman’s third point was about the arming of the rebels. I have consistently made it clear during this crisis that all options should remain on the table and all contingencies should be considered by the international community. I am not convinced that the EU would be the appropriate body in that regard, but I have said that all contingencies should remain on the table.
Let me now make a little more progress with my speech. First, I ask the Minister who winds up this evening to answer the following questions on Egypt: have the British Government taken steps to ensure that the Egyptian authorities release the political prisoners who were detained at the time of the protests, and what specific recommendations have been made on the recognition of trade unions and other institutions in Egyptian civil society?
On 14 February, the Secretary of State told this House:
“We have also received a request from the Egyptian Government to freeze the assets of several former Egyptian officials. We will of course co-operate with this request, working with EU and international partners as we have done in the case of Tunisia. If there is any evidence of illegality or misuse of state assets, we will take firm and prompt action.”—[Official Report, 14 February 2011; Vol. 523, c. 715.]
We discovered only at Foreign Office questions on Tuesday of this week that the Government did not have the necessary information from the Egyptian authorities and that our European partners were not moving quickly enough. Will the Minister therefore tell the House what steps the Government have taken to get the necessary information from the Egyptian authorities, and what the Government are doing to move the process along in the European Union?
Bahrain has, rightly, already been the subject of a number of interventions. The situation in Bahrain is deeply worrying, and it is deteriorating. The real risk today is not simply that the legitimate aspirations for reform and change in that country are denied—important thought that is—but that this tiny island could become the violent fulcrum of a wider battle for regional influence. That is why I stand with the Government in their urging of restraint in these dangerous days. Indiscriminate violence used against peaceful protests is unacceptable anywhere and should be condemned comprehensively.
The security response taking place in Bahrain cannot be a substitute for a political resolution. A political solution is necessary and all sides must exercise restraint and work to produce a dialogue that addresses the needs of all the Bahraini citizens. I listened with care to the Foreign Secretary’s remarks indicating that our Prime Minister had talked to the King of Bahrain and that the Foreign Secretary himself had spoken to the Bahraini Foreign Minister, and I welcome those interventions, but may I ask the Minister to tell the House what representations the Government of the United Kingdom have made to the Government of Saudi Arabia to urge restraint, and have our Government obtained a clear picture of Saudi Arabia’s intentions in Bahrain?
Reform towards a constitutional monarchy is being countenanced not only in Bahrain: in Morocco on 9 March King Mohammed tasked a group of esteemed Moroccans, including dissidents, to draft a new constitution. In particular, he called for a separation of powers, including an independent judiciary, a more equitable system of governance across the country’s provinces, and a series of amendments that would enshrine individual liberties, human rights and gender equality. What some have called “the King’s revolution” must translate words into deeds and the promise of reform into the reality of change.
Elsewhere across north Africa and the middle east we need to be consistent in urging the embrace of more democratic reform, which is why, on Yemen, the Government are right to urge progress on national dialogue with opposition parties and democratic reforms. Clearly, there also needs to be a clear plan for economic development and poverty reduction in Yemen, as well as an intensification of action against al-Qaeda in the Arabian Peninsula.
Mr Bain
The hon. Gentleman makes an important point, and one I will refer to later in my remarks.
We ought to follow the lead of the opposition national council and the EU and take the steps required to protect against future and further atrocities by the regime. There are important contrasts with the more complex no-fly zone that operated in Iraq between 1991 and 2003, which required on average 34,000 sorties a year, at an annual cost of nearly $1.5 billion. Shashank Joshi said recently:
“In Libya, by contrast, NATO might only need to cover Tripoli, its transport corridors, and… urban areas threatened by Qadhafi loyalists.”
As he also pointed out this week, arming the opposition would cause a serious risk. Portable anti-aircraft missiles could slip out of responsible hands and be used against western targets, and small arms proliferation is already a blight in that part of the world.
Mr Cash
Does the hon. Gentleman realise what he has just said? I think that he said that we should not arm the resistance movement. Does he realise that Richard Dannatt and many others who have great experience are calling for these people to be properly armed? Otherwise, there will be a massacre. Does he really appreciate what he is saying?
Mr Bain
There is a range of views on this, and we should proceed very carefully and in full recognisance of all the arguments before taking steps over the next few days, particularly on arms.
It is clear that any no-fly zone would require a sound legal mandate invoking chapter VII of the UN charter where possible. There are also practical difficulties in enforcing a no-fly zone against helicopters, as a breach of it might require attacks against ground targets.
The humanitarian situation in Libya and its neighbouring states has worsened over the past few weeks, with the UN High Commissioner for Refugees reporting that more than 280,000 people have fled Libya and crossed the borders into Tunisia and Egypt. This week, the UNHCR reported that people seeking to flee combat areas in search of refuge are unable to do so or are being prevented from doing so, with a particularly critical situation affecting trapped refugees and asylum seekers who have been detained. We should support UNICEF in its efforts to make an immediate response to alleviate the humanitarian crisis as soon as it can safely enter the country.
The key point is that the international community cannot abandon the Libyan people in this time of need. This must not be another situation like 1992 where, having supported the Shi’a community in Iraq, we then abandoned them when Saddam began to attack them and gave little other than moral support thereafter.
In the few moments remaining I will turn to some of the other states in the neighbouring areas. In Bahrain, movement towards a genuine constitutional monarchy seems to me to be the most likely step to bring about reconciliation and progress. Other middle east Governments must respond to the movements for political and economic reform, such as those in Saudi Arabia and Yemen. As many Members have said, we need to revive the Israeli-Palestinian peace process and secure a viable Palestinian state, cohabiting alongside an Israeli state, in order to begin the process of providing a better future for people in the region.
I saw some very interesting data from the Pew global attitudes project last year, which found a decline in support in the Muslim world for radicalism and terrorist attacks. I think that that shows the genuine beliefs of the people in the middle east. They want peace and security and, above all, economic development and reform. As Secretary of State Clinton set out in her speech in Doha on 13 January, there are many signs of the potential for a new and innovative middle east, but there are also huge problems, such as mass youth unemployment, which is approaching 20%, a stagnant political order and depleted resources. We in the west can play our part by securing a completion of the WTO Doha round to liberalise trade and to encourage growth in poorer states, and by building links between the EU and the middle east and north Africa.
Developing civil society, helping to reform the economy and helping the peoples of the middle east and north Africa to increase their human rights and freedoms will be vital to their future and to the security of the region, and in an interconnected world it will be increasingly important for our security here at home in Britain, too.
European Union (Amendment) Act 2008
William Cash Excerpts(13 years, 7 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Lidington
I had better invite the hon. Gentleman to read the Hansard record of the debates on the European Union Bill in which he took part—both in Committee and on Report. If he does read them, he will see that the Government introduced an amendment precisely to make explicit the requirement for this proposed treaty change to be subject to more rigorous parliamentary scrutiny than would have been permitted if the current statutory procedures under the Constitutional Reform and Governance Act 2010 had been allowed to stand and to suffice. I hope that he was not asleep when we debated that amendment. If he examines Hansard, he will find that we have covered that point in some detail.
The previous Government left the country with a system of control that was grossly inadequate. Section 6 of the European Union (Amendment) Act 2008 requires that when a draft decision under the simplified revision procedure—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 without amendment before the Prime Minister can signal his agreement to its adoption at a subsequent European Council. That is the point in the decision-making process that we have reached tonight.
There is an option, under the 2008 Act, for the Government of the day to insert a disapplication provision into this type of motion. Such a provision would enable the Government to agree to subsequent amendments to the draft decision to amend the treaty without having to come back to the House for approval. The options were put before me by my officials and I was absolutely clear from the moment I read the papers that to introduce a disapplication provision of that kind would be completely unacceptable and would give Parliament absurdly little control over such an important matter. For that reason, there is no such provision in the motion.
Let me make it clear: if the House approves the motion, it is authorising the Prime Minister to agree to this draft decision—this text alone—at the European Council. Should there be any suggestion of amending the draft decision at the European Council—there is no such suggestion from any quarter at present—the Prime Minister could not legally agree to it at the European Council without first coming back to this House and the other place for additional approval after a further debate. The draft decision that is referred to in the motion will be the version that is agreed at the Council and there can be no other version of the treaty change without the further approval of the House in a debate such as this.
The European Scrutiny Committee has rightly assessed the draft decision as politically important and has recommended it for debate on the Floor of the House. We are scrutinising the draft decision, as the Committee has requested, and debating whether the Prime Minister may signal his support for its adoption at the Council on 24 and 25 March.
Mr William Cash (Stone) (Con)
My right hon. Friend is going through all the procedures and the technical side of things, but, as he knows, that is not really what the treaty is about. I hope he will agree that it represents a huge change in the relationship between the United Kingdom and the European Union. Anyone who cares to look back at what those of us who have argued this case before have said, and to look in particular at The Economist this week, will know that the treaty is a hybrid one that is being devised, driven and pressed forward by Germany and those countries that wish to acquiesce in Germany’s dictated terms. Does he agree?
Mr Lidington
No, I am afraid I do not agree with my hon. Friend on that point. As I have said, it is in the interests of the United Kingdom for there to be stability in the eurozone. To some extent, the measures that the eurozone countries are now taking are a response to the kind of critique that he and other Members of this House made 10 or 11 years ago when the euro was first created. They—I was very much in this camp—argued that it would cause huge difficulties to create a currency union involving a single interest rate and single monetary policy that did not have some way of reconciling very different rates of growth, inflation and unemployment in the countries in that single currency area.
I want to finish on the procedural points and then move on to the content. If the draft decision is adopted by the European Council, all 27 member states will have to approve the treaty change and ratify it in accordance with their respective constitutional requirements before the decision enters into force. The treaty amendment cannot come into effect until we—and everybody else—ratify the adopted decision.
My right hon. Friend the Foreign Secretary and I have already given an assurance at this Dispatch Box that this and every other future treaty change will be considered in accordance with the terms of the European Union Bill, once that enters into force. That Bill will require Ministers to lay a statement before Parliament within two months of the commencement of part 1 of the Bill, explaining whether the treaty change would fall within clause 4 of the Bill—namely, whether it would involve a transfer of competence or power from the United Kingdom to the European Union.
The treaty change will then have to be ratified by primary legislation—a full Act of Parliament—before the United Kingdom is able to say formally that it has completed the ratification process, so even when we get to that stage, the final version, agreed by all 27 Heads of Government, has to come back to Parliament for ratification and will be debated in all the stages of primary legislation. Tonight is therefore not the only opportunity that my hon. Friends will have to debate the measure.
Mr Lidington
No, I am not giving way again at the moment.
A number of my hon. Friends were also keen to be reassured that the proposed treaty change does not and will not transfer any competence or power from the United Kingdom to the European Union, and I want to reassure them now. As I have mentioned, the treaty change involves an amendment to one of the provisions that applies only to member states whose currency is the euro, not to others. Therefore, we cannot be part of the ESM without joining the euro itself.
The change is also being undertaken using article 48(6) of the treaty of the European Union, which explicitly states in its provisions that it
“shall not increase the competences conferred on the Union in the Treaties”.
All member states are agreed on that point and stated so, in terms, in paragraph 6 of the recitals to the draft decision. The opinion of the European Commission, dated 22 February, reaffirms that the proposed treaty change does not affect the competences conferred upon the Union.
Some hon. Members have questioned whether the Government should be required to hold a referendum even when the United Kingdom is not directly affected, and this starts to address the point that my hon. Friend the Member for Stone (Mr Cash) made in an intervention. As I highlighted earlier, the European Union Bill, after our seven days of debate on it, will ensure that any treaty changes constituting a transfer of competence or power from this country to Brussels will be subject to a referendum. But this treaty change will enable no such thing, and it does not make sense to try to insist on a referendum on agreements that concern only other member states. It makes sense no more than it would have made sense for Germany to hold a referendum on the recent defence treaty between the United Kingdom and France.
The treaty change under discussion is in our national interests, but on top of that, to come to the point that my hon. Friend the Member for Basildon and Billericay (Mr Baron) made, the Prime Minster during the course of the negotiations achieved two further important objectives. First, as the conclusions of the December European Council and, more importantly, the preamble—the recitals, as they are known—to the draft decision itself confirm, once the ESM is established to safeguard the stability of the euro area, article 122(2), on which basis the European financial stability mechanism was established, will no longer be used for such purposes. Therefore, our liability—bequeathed by the previous Government—for helping to bail out the euro area through EU borrowing backed by the EU budget, under the EFSM, will cease. That was an important achievement for British interests.
Mr Cash
As my right hon. Friend will know, according to Reuters and many other news agencies Portugal is on the brink of needing a bail-out because its economy is imploding. Does he accept that, as this debate continues, we will be exposed under the EFSM to the tune of up to whatever is the proportion that we should contribute under the proposals until 2013, and that we should have insisted that that was repealed and revoked when the other arrangement was entered into? That is the concession that we should have got, and the Government did not even seek to achieve it.
Mr Lidington
We inherited from our predecessors a legislative measure that was brought in under an existing competence and treaty base and that was, from that time, legally binding. My hon. Friend will understand that I am not going to be drawn into speculating about the position of other individual member states. My understanding, on the basis of the most recent information that I have, is that no other member state has been asking the EU authorities for additional financial help.
As the Prime Minister has made clear many times in this House, securing a tight and disciplined budget for the future is the highest priority for the European Union. At the last European Council meeting, Britain led an alliance of member states to unprecedented success in limiting the 2011 EU budget increase to 2.91%—a very marked improvement on our predecessors’ performance in the previous year. Crucially, in moving forwards, working alongside key partners such as France, Germany, Netherlands and Finland, we are committed to a real-terms freeze in the EU budget in the new perspective, which we expect to run from 2014 to 2020, and we have written collectively to the President of the European Commission setting out our position.
Mr William Cash (Stone) (Con)
The essence of this debate is not just the technicalities, which we heard about at great length from the Minister, but something far more fundamental—the political landscape of Europe. The Minister knows it and the Foreign Office knows it. To give an example, there was a massive row between Nicolas Sarkozy and Mr Kenny about the terms of European economic governance only a few days ago. Furthermore, as was said this week in The Economist:
“Mrs Merkel has struck a Faustian bargain with France’s Nicolas Sarkozy.”
He knows that France is losing influence, and as one senior EU official commented:
“France needs Germany to disguise its weakness, and Germany needs France to disguise its strength”.
The fact is that we have the strength to prevent this hybrid treaty arrangement, which presents Germany with a predominant role. We have great sympathy for Germany’s predicament, given that it contributes so much to the European Union and is having to pay out so much. I have fairly regular meetings with German politicians, who tell me that if their country had the opportunity, it would almost certainly go back to the Deutschmark. There is a serious crisis in Europe, but the response is about the nature of a treaty, something in which this Government are acquiescing—it is not far short of appeasement.
The plain fact is that this is a serious moment for the future of Europe. This is a new, unprecedented situation, and it is accompanied by other proposals, which, as I understand it, will also be considered on 24 and 25 March, namely the proposals for the euro pact, which has otherwise been known as the competitiveness pact. However, nobody really knows exactly what the ingredients of it are, any more than they knew about the ingredients of the proposal that we are discussing this evening in its earlier stages. Indeed, I had to use an urgent question to extract from the Government the fact that it was even being made. That is the manner in which Europe works: by secrecy and behind closed doors. Indeed, there are already signs of committees meeting, and we are discovering—through leaks and otherwise—the manner in which they are going forward.
One element in all this is that, as my hon. Friends have rightly said, it would have to be determined by unanimity, so we would have the leverage to stop this juggernaut moving forward. I described it the other day as being like an aircraft carrier in comparison with a rowing boat, but we in Britain will not be regarded as a rowing boat by any means. If such arrangements were being made co-operatively by a voluntary association of nation states, I would be the first to say, “This is fine”, but they are not. They are being dealt with in the context of a legal treaty. We are parties to it, which is why clause 4 of the European Union Bill is such a disgrace. I say this with great respect for my right hon. Friend the Minister, but he talks about how we would be under no legal obligation and how there would be no transfer of powers or competences, but that is not the issue. The issue is whether the United Kingdom is affected. That is the point that I put to the Prime Minister repeatedly, and he cannot answer it. The fact is that the arrangements in question do affect the United Kingdom. They are matters of foreign policy; they are not just constitutional questions relating to sovereignty, competence and powers.
Martin Horwood
I hope that the hon. Gentleman appreciates that I am missing the Cheltenham festival to be in Parliament this week, which I do not mention flippantly. The festival is enormously important to my constituency economically, and it depends enormously on Irish euros to make it succeed. If in the long run the outcome of the stability mechanism adds some discipline and rigour to eurozone economies such as Ireland, can he not see that that would be of enormous benefit to the festival, to Cheltenham and to the whole of the UK, and should we not do everything in our power to facilitate it?
Mr Cash
I was one of the first—in fact, I think I suggested that we should help Ireland through the bilateral Bill that we eventually produced. However, the Irish are now being put under pressure, at the dictation of Germany in particular, to reduce their corporation tax. That will not do much for the Cheltenham gold cup.
There is a serious problem, because the Government are effectively obscuring the nature of this measure by giving the impression that it is all about institutions. It is about realpolitik. In the days of Bismarck, the German states were brought together in a customs union. That was done for understandable reasons; I do not want that to be misunderstood. However, there is now a problem for Europe. Our problem is that, in the 43 minutes that the Minister spent addressing the House, he did not deal with the politics of this matter at all. That is most unfortunate. In every serious commentary on this issue, including those in the Financial Times, the real question is whether Germany is becoming increasingly predominant, and whether that is intentional or whether it is happening by accident and Germany is making the most of it.
Germany is making the most of the financial crisis to get a greater degree of political control, and the question of whether we can influence that by entering into an arrangement of this kind—which affects us even though we are technically excluded from it—is a serious foreign policy matter for the innermost parts of the Foreign Office. It is also a matter for this House. I believe profoundly that these issues, including the euro pact itself, are not being properly disclosed. The Minister might know what is going on, but we do not. We are not being told. We do not know what the strict conditionality affecting the other member states in the eurozone will be under article 138 as amended. The plain fact is that in that conditionality a crisis lurks. If over-severe conditions are imposed, we will have another crisis in Europe.
This is a bad treaty proposal. The leverage comes now, when we have the opportunity to say no. The Government propose that this will be dealt with in a Bill, but that will be far too late. The Government are acquiescing in this, and I regard that as a form of appeasement to the modern problems of Europe in the form of a predominant Germany, which is not in the interests of Europe, not in the interests of the United Kingdom, and not in the interests of Germany itself.
Hindi Radio Service (BBC)
William Cash Excerpts(13 years, 7 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Leigh
That is absolutely right.
Let me read out a couple of quotations by ordinary people from an article in The Times:
“Vijay Kumar Pandey…every day at 6 am, takes his battered transistor radio and places it on a small table outside his house. Through the shortwave crackle a burst of familiar Indian classical music announces the beginning of a half-hour news bulletin.
Other villagers arrive to listen to the world’s most important events. They have been doing this since 1940, gathering at dawn and dusk to hear BBC Hindi’s twice-daily news programmes.
‘I am in shock,’ said Mr Pandey, a farmer in…Uttar Pradesh. ‘It’s like a family member departing from me.’”
The article continued:
“My life would lose its meaning if BBC Hindi stops its service,”
said Tarachand Khatri from Rajasthan.
“Can you imagine living with somebody throughout your life and, suddenly, that person is gone? BBC Hindi was a person; we used to interact with it through its programmes; we used to share our happiness, feelings, thoughts and concerns.”
The respected Indian news weekly Outlook reports that some villagers have threatened to burn David Cameron in effigy—something that we would all deprecate. Mohammed Hasnain Khan, a schoolteacher from Ghazipur, has threatened to immolate himself if BBC Hindi is shut. Ravindra Chauhan of Assam says that hearing that BBC Hindi will close was as if
“someone tells you that your parents will die in March.”
And so the arguments go on. This decision is an attack on people who have no way of hitting back, and I think that we should protect them, especially as the Department for International Development is set to continue funding the poorest states in India to the tune of £250 million.
Mr William Cash (Stone) (Con)
Given the BBC’s enormous revenue, which is something like £4 billion a year, and how many correspondents it sends across the world in batches, does my hon. Friend agree that this incredible waste—in respect of which he and I fought to bring the BBC’s accounts within the purview of the National Audit Office—is completely disproportionate to the value that is attached to this service? Lastly, he might be fascinated to learn that 10 May 1940—the day on which the service began—happens to be the day I was born.
Mr Leigh
It is a very notable anniversary.
At this precise moment the BBC is wasting hundreds of thousands of pounds on a regionalisation programme—a programme that involves moving the headquarters of “Question Time” to Glasgow, for instance, even though it will continue to move around the country—while it is cutting a valued service in India.
European Union Bill
William Cash Excerpts(13 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr James Clappison (Hertsmere) (Con)
I beg to move, That the clause be read a Second time. As another Member who willingly put his name to the new clause, I am delighted to do so.
Members who are familiar with the Second Reading debate and the proceedings in Committee will know that clause 5 is about a statement that must be laid before the House within two months of the conclusion of any of the treaty changes covered by the Bill, as part of the process whereby a referendum takes place. It covers treaty changes in both the ordinary revision procedure—the one with which we are all familiar, involving a convention followed by the full panoply of treaty change and agreement between the nations—and the simplified revision procedure that was introduced by article 48(6) of the treaty of Lisbon, which makes it much easier for the parties to the European Union to bring about treaty change. Under that article, all they need to do is reach an agreement within the Council and then put it to the member states, and unanimity is required for that. It is generally regarded as a measure that speeds up treaty change.
New clause 1 would require much more information to be included in the statement, or to be provided with it. When my friend the hon. Member for Birmingham, Edgbaston (Ms Stuart) drafted the new clause, she may well have had in mind what took place during this House’s proceedings on the treaty of Lisbon, and I certainly had that in mind when I signed it. The then Government advocated all the measures in the treaty of Lisbon to the House—and to the country—but it was revealed during the debate that at the Convention that led to the drafting of the constitutional treaty which later became the Lisbon treaty, they had opposed a number of key proposals.
Mr William Cash (Stone) (Con)
Is my hon. Friend also conscious of the fact that the Conservative party was, for the first time since 1972, united on that issue, and that it voted consistently against every provision that was worth voting against in the Lisbon treaty, yet subsequently accepted it?
Mr Clappison
Yes—and not only that, because my hon. Friend is being characteristically modest, as some of the warnings about the consequences that would flow from the treaty of Lisbon have proved right in the short time that has elapsed since its introduction. I am thinking in particular of the warnings that were given about what I regard as the unfortunate influence of the European External Action Service and the EU’s new Foreign Minister, Baroness Ashton, which has not entirely served the interests of this country.
Mr Clappison
I stand corrected. I do not know whether the hon. Gentleman’s colleagues voted both for and against an in/out referendum, or whether they voted both for and against having a referendum on the Lisbon treaty. I do remember, because it would be hard to forget this, that one of his colleagues was excluded from the Chamber because he got into such a terrible temper about not being able to have an in/out referendum. I am not sure how many of his colleagues supported the amendment that we dealt with several evenings ago proposing an in/out referendum; the Hansard record will doubtless show the number.
The fullest possible information should be available to this House and to the British people so that we know what is really going on. One of the fundamental problems of the European Union is the feeling of disillusionment that people have about its lack of accountability. We do not know what is taking place and being done in our name. The EU is remote and decisions are taken behind closed doors. Some arrangements are entered into beforehand in an entirely private way, with decisions not even being taken at the meetings themselves, but often being taken behind closed doors. We need more information about such matters.
Mr Cash
Even as we speak, a gigantic deal is being done in Europe. It is called the “competitiveness package”. It took me an urgent question—thanks to you, Mr Speaker—to elicit the truth about what was going on in European economic governance. What my hon. Friend says is absolutely right: a tradition of deceit lies behind all this, and it goes right across the whole of Europe.
Mr Clappison
I am grateful to my hon. Friend, because he has done the House a service. It was entirely due to him that the contents of the Van Rompuy report, as they affected this country, which they clearly did, were revealed to this House. We look forward to having a fuller debate on those in due course. We want a fuller debate on many other issues, but when a treaty change comes before this House and is the subject of a statement under clause 5 we need to have all the information. We need to have everything out in the open so that we can have a full and well-informed debate.
Mr MacShane
There is a curious alliance between two distinguished former Members of the European Parliament—my hon. Friend and the hon. Member for Daventry (Chris Heaton-Harris)—in saying that perhaps this House can learn from the European Parliament. Other right hon. and hon. Members might care to look at that.
The European Union will be taking very big decisions on Friday, when there are two special meetings of the Council, the first of which—
Mr Cash
The right hon. Gentleman, in some dispute with my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), suggested that decisions taken by the Council of Ministers were not legislative acts. Can he think of anything that is more of a legislative act than when, by a majority vote, the decision that is taken is binding upon this House without our having any opportunity to intervene?
Mr MacShane
Yes. In my constituency, which is a very strong manufacturing one, the acts of the World Trade Organisation have far more impact, and we do not consider the WTO to be a legislative body.
On Friday, there will be two highly important meetings of the European Council, the first of which will discuss Libya. I am a supporter of much of the robust line that the Prime Minister has taken since he came back from his trip to the middle east. It will be interesting to see whether the Government publish all the details of the propositions that they are putting up for that debate and decision, or whether they offer a referendum lock to the people of Britain on any future military intervention in Libya, as proposed in certain other areas under the Bill.
Once that meeting is over—I sincerely wish the Prime Minister and his team well; I hope that the whole House does, because Libya will continue to occupy our minds and worries for many months ahead—the British Prime Minister will be asked to leave the room. That is because the next set of decisions that will be taken, on economic governance and the euro, will exclude Britain, even though they will impact on us, as the Council will discuss how to react to the new Irish Government’s position in wanting a serious rewriting of the agreement that the previous Government had reached. It may discuss the European Parliament’s call for a ban on naked short selling, which the German Government have already introduced in Germany and which is very unpopular in the City. Britain will not even be there, because it is excluded from that part of the Council. The notion that we will learn about decisions made in Europe if Britain publishes its documents is nonsense, because unless all 26 other members states do the same, we are left in ignorance on the ebb and flow of discussions.
Mr MacShane
If I may, I will continue, because I am sure that the hon. Gentleman will have a good chance to speak shortly.
Mr MacShane
It is a mixture of both. First, one listens to the positions of all 27 member states, then one says things like, “Look, that’s not going to fly for us. We suggest you drop it. Here are our ideas.” Proposals go backwards and forwards between the Council secretariat and the Commission secretariat, and they come back here for discussion, as my hon. Friend the Member for Birmingham, Edgbaston (Ms Stuart) rightly said. Whitehall has a very effective co-ordination operation. As a result, the finest civil servants in the land meet very early every morning—sensibly that is usually done without any gabby politicians present—and over a large English breakfast, on the eighth floor of some Hilton or Hyatt in Brussels, they hammer out a position and work out where every other country will be to maximise what Britain wants. Very often, we are the demandeurs who want to achieve a policy change in the European Union which requires skilled diplomatic negotiation. I say respectfully that the notion that all that can be minuted and published is not realistic.
Mr Cash
On a point of information, I just wanted to put it to the right hon. Gentleman that the European conclusions of 4 February, to which he referred in the context of the eurozone and the other member states, specifically state:
“Non-euro members will be invited to participate in the coordination.”
They also state that it will be guaranteed that
“the Heads of State or government of the interested non-euro area Member States are duly involved in the process.”
I therefore do not think he was quite right to suggest that we would not be involved, because the conclusions state specifically that we will be. However, the whole system is completely crazy.
Mr MacShane
We will see what happens on Friday. I am concerned, as all hon. Members ought to be, that because we are not in the euro—for perfectly good reasons—Britain is not as fully involved as the other deciders in many areas of decision making. We will leave that to be revealed in Friday’s meeting and future discussions.
I am very attracted to the point made by my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty). We can now, in the House of Commons, announce the new Connarty law: there is a precise ratio whereby the more paper provided on any European decision, the less real discussion and debate there is thereon. I hope that he will agree that that new Connarty law should be enshrined as an official part of how we do business in Europe.
I remember that for the constitutional Convention, on which my hon. Friend the Member for Birmingham, Edgbaston valiantly represented the House of Commons, the then Foreign Secretary and myself set up a special Select Committee and published everything. We had regular meetings for the sake of accountability, but not a single Opposition Front Bencher ever came to them and they were often inquorate. The hon. Member for Stone (Mr Cash) was valiantly present at every meeting, but his party leadership was absent. Again, that reflects the Connarty law—the more opportunity and information right hon. and hon. Members are given on Europe, the less inclined they are to take it up and debate it.
Mr Shepherd
I have just heard another inaccuracy from the right hon. Gentleman, just as previously he was corrected on a matter of fact regarding the invitation of those not in the eurozone to be present at meetings affecting what are profound matters. I shall therefore take with slight caution some of the arguments that he has advanced.
I should declare an interest: I am a parliamentary vice-chairman of the Campaign for Freedom of Information. What is noticeable is that Europe is notoriously remiss in this area. It is proclaimed that work is being done on freedom of information, yet in many ways the bureaucracy in Europe is one of the most secretive organisations of them all.
Mr Shepherd
This is the record on Europe that most of us will recall; it is not the fantasy of some, who see Europe as an object of almost theological insistence.
Mr Shepherd
As I understand it, the European Union purports to be a country now. That change of title happened following Maastricht. We became citizens of the Union, also under Maastricht. Those issues were fiercely fought over. The question of whether Her Majesty the Queen was a citizen of Europe arose on the Front Benches here. We asked those questions and they were debated. The Bill was passed, but it was, as Labour Members will recall, a damned close-run thing—on one amendment in particular.
Mr Cash
The very amendment paper that my hon. Friend is holding in his hand demonstrates the amendments that have been tabled and that are available to everyone who cares to look at them. On the basis that the Council of Ministers is a legislative body, does he not agree that, if we have to receive its legislation and are then allowed to table amendments to it, we should be entitled to see the amendments that have been tabled during the preceding process?
Mr Shepherd
That is the argument, and I am glad that it was so briskly conveyed. On that note, I urge the House to support the new clause.
The Minister for Europe (Mr David Lidington)
This has been a genuinely interesting debate which—somewhat unusually for European debates, dare I say it—has developed in a way that I did not altogether anticipate. We started by discussing a new clause dealing with transparency and public and parliamentary access to information concerning European negotiations, but as the debate continued it developed along the broader theme of the adequacy or inadequacy of our current arrangements for the scrutiny of decisions taken by successive Governments of the United Kingdom on behalf of Parliament and people within the institutions of the European Union. I thank all right hon. and hon. Members who have taken part in the debate.
The key choice that has to be borne in mind in considering the proposition put forward in the new clause tabled by my hon. Friend the Member for Hertsmere (Mr Clappison) and the hon. Member for Birmingham, Edgbaston (Ms Stuart) concerns the most effective balance between, on one hand, appropriate access to information that provides the flexibility to allow citizens and other interested parties to see documents that contributed to policy making and, on the other hand, the need to preserve a space for candid, confidential discussion, deliberation and negotiation to ensure the best possible outcome in the interests of our country. I have sympathy for many of the arguments—certainly the motivations—of the hon. Members who tabled the new clause, but I do not think that it would deliver the right balance. I will make my arguments in more detail in due course, but I hope that at the end of the debate they will not press the motion to a Division.
I want to start by addressing some of the broader issues that have been raised. The hon. Member for Birmingham, Edgbaston said that we needed to know when and how Ministers voted. Of course, one of the changes introduced by Lisbon is that we have new rules for the workings of the Council, including not only a public record but a public broadcast of the final deliberations at a Council session on legislative dossiers. At that point, it is apparent how each member state has voted, if indeed there is a formal division, and the arguments or the statement of position that the Minister or other representative of a member state chooses to put forward are also be made public. I have sat through a number of those public sessions over the past 10 months. I do not think that they will ever command a mass audience on a Saturday evening. I am not aware that they have ever been broadcast as part of the regular prime-time news bulletins in this country or any other member state.
The new clause and many of the contributions to the debate have tried to get at how Parliament, on behalf of the public, can hold Ministers to account more effectively, not just for that final, often rather formal, process of taking a decision on live TV, but for how the negotiating position of the United Kingdom is shaped in the numerous bilateral contacts and contacts with European institutions that are undertaken by Ministers and officials, sometimes over many months. A number of ideas have been suggested. My hon. Friend the Member for Ipswich (Ben Gummer) said that we need to look at the matter in the context not only of the EU, but of our participation in other international institutions and considering the use of royal prerogative powers more generally.
It is interesting that no hon. Member has mentioned the House of Lords, which has distinct and different scrutiny arrangements. There is a question for parliamentarians at both ends of this building as to what methods of scrutiny experience teaches us work best and most effectively. If Government and Parliament are to agree on new scrutiny arrangements, the position of both Houses will have to be taken into account.
Mr Cash
I am sure that the Minister would not want to misrepresent the differences between the two Scrutiny Committees. I know he is aware that the House of Lords has more generalised debates, whereas under our Standing Orders, our debates relate to particular legislative documents. To align the two might be a bit of a mistake.
Mr Lidington
That would be a matter for debate. I have heard dissatisfaction with the current scrutiny arrangements and a wish to explore the alternatives from several Members from all parts of the House this afternoon. At the moment, we have a model in the House of Commons and a model in the House of Lords. This business is done in various ways in other member states. Such a debate would take all those approaches into account.
The hon. Member for Linlithgow and East Falkirk (Michael Connarty) and my hon. Friends the Members for Dover (Charlie Elphicke), for South Swindon (Mr Buckland) and for Cheltenham (Martin Horwood) talked more generally about how we could improve our scrutiny arrangements. It seems to me that we need to keep the distinction between Parliament and Executive clearly in mind. Parliament’s role is to hold Ministers to account for their decisions, not to take on the role of the Minister. There is a strong case for saying to Parliament—perhaps I should be more cautious and say suggesting to Parliament—that rather than drowning parliamentarians in paperwork, about which the hon. Member for Linlithgow and East Falkirk made a good point, Parliament and its Scrutiny Committees could seek to call Ministers before them, including in advance of Council decisions rather than necessarily waiting for the final version.
Mr Lidington
When speaking on behalf of the Government, I must be careful not to presume to represent a collective Government position that does not yet exist, nor to pre-empt the views of parliamentarians from all parts of the House on the most appropriate method of scrutiny.
Mr Cash
The Minister is moving away from the proposals put forward by the hon. Member for Birmingham, Edgbaston (Ms Stuart) into a much deeper question, and I know that he is taking this opportunity to do so. As Chairman of the European Scrutiny Committee, I ask him to consider also that because the decisions made by the Council of Ministers are of a legislative character and are binding on Parliament through section 2 of the European Communities Act 1972, it is incumbent on him to consider the idea—in fact, to implement it—that Parliament may decide to vote against proposals that have been cultivated by the Government and to reject provisions that have been decided in the Council of Ministers. Perhaps the Minister can throw that point into the pool of his considerations.
Mr Lidington
That is clearly already possible under our system if a European measure comes forward that requires primary or secondary legislation to transpose it into the law of the United Kingdom. It is up to the Government of the day, of whichever party or parties it is composed, to retain the confidence of Parliament and to persuade a majority in Parliament to endorse their preferred approach.
The hon. Member for Birmingham, Edgbaston challenged me on the question of collective memory. The hon. Member for Linlithgow and East Falkirk said that he regretted the switch from European Standing Committees with fixed memberships to European Committees with shifting memberships. I spent my first Parliament, among other things, doing duty on European Standing Committee A. There is no doubt that I learned a great deal by virtue of that continuity, not least through the example of the late and great Gwyneth Dunwoody on how to hold Ministers to account. She used to deliver a master class in reading the documents in advance and picking out the weaknesses in the Government’s argument.
Mr Cash
I would very much welcome the idea of having, for example, European questions in the House. I have many proposals that would make the system more efficient. I remind my right hon. Friend of the current Home Secretary’s pamphlet, which recommended not only that European Committees should have their proceedings properly advertised, but that if, for example, 150 Members decided that they wanted to have the matter in question debated on the Floor of the House, there should be a free vote on a motion to overturn a decision taken in the Council of Ministers, whether or not the Government had approved the provision there. Some of us would be more interested in the results of a vote than in a mere discussion.
Mr Deputy Speaker (Mr Nigel Evans)
Order. Can we bring the debate back, please, to new clause 1?
Mr Lidington
I simply remind all hon. Members who want to take forward these wider arguments that I said in my written ministerial statement on scrutiny on 20 January, which referred mostly to justice and home affairs, that the Government would
“review the arrangements for engagement on EU issues in consultation with Parliament.”—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]
I invite them to take advantage of that opportunity.
I turn to the detail of new clause 1, which causes me concern because it would result in the United Kingdom having a substantially different policy with regard to information on EU decision making from that on domestic policy making. It would also represent a substantial impediment to the UK’s ability to negotiate effectively in an intergovernmental conference, in the European Council and in the Council of Ministers. As a number of Members have said, it could have a negative impact on our relationship with other member states and the EU institutions, and more generally on the process of good policy making and legislation.
The negative effect on our ability to negotiate at the Council of Ministers concerns me most. First, action to comply with the statutory duty that the new clause would impose on Ministers could reveal sensitive information about the UK’s long-term negotiating approach in a number of areas. I do not believe it is sufficient protection to say that the negotiations would be complete or substantially complete by the time the documents were made available, because it is very rare that negotiating positions taken in respect of one piece of legislation do not have a read-across to positions on other matters that will probably still be live dossiers when that legislation has been agreed to.
Secondly, complying with the new clause would mean that our tactics in negotiations would have to take into account the duty to make negotiating positions on proposed amendments public at a later stage. For example, there are occasions on which we try to persuade other member states to propose, or take the lead on, particular amendments so that we can concentrate our time and energy on different amendments that perhaps have less widespread support. If a Minister knew that he might be criticised if it became public that he had not sponsored a particular amendment, that would constrain our negotiating tactics and weaken our negotiating strategies.
I quite understand that the proponents of the new clause might want to see how a decision is made at EU level and the details of what part the UK has played in that process, but I do not want any Ministers of any Government who are fighting for Britain’s interest in future discussions and negotiations to be doing so with one hand tied behind their back. It is absolutely essential to our national interest that Ministers can negotiate effectively on behalf of our country.
As a number of Members have said, including my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), the new clause would also have implications for information that we have on record about the positions of other member states. There is even a risk that its requirements could put us in conflict with existing European legislation. As a member state of the EU, we are party to the terms of the access to documents regulation, article 5 of which requires that when any member state intends to disclose a document originating from one of the EU institutions, it must consult that institution before public disclosure. If, under the new clause, we had to release a text submitted at a Council working group that included proposed amendments from each member state, and the agreement of the Council as a whole had not been sought or obtained, we could potentially be at risk of infraction proceedings and ultimately a fine. As the new clause is drafted, it is quite possible that our obligations as an EU member state could be at odds with the statutory duty that the new clause would create.
Mr Lidington
The remedy that my hon. Friend seeks can be obtained by Committees and the House being energetic in holding Ministers to account for the positions that they take and for the way in which they agree to whatever compromise is eventually negotiated.
Importantly, the proposed new clause does not specify in any way to what “relevant documentation” refers. That came up earlier in the debate. It is not clear, for example, whether “relevant documentation” covers so-called non-papers submitted by member states, which are intended to be “without prejudice” contributions to discussions. Does it include Council working group documents that give the position in summary of each and every member state on a particular issue? There could easily be widely diverging views on what comprises “relevant documentation”.
That lack of clarity could also cause confusion in relation to UK documents. Reference was made during the debate to whether legal advice given to the Government would be required to be made available under the terms of the proposed new clause. If so, that would clearly undermine the principle of legal professional privilege, the significance of which the Information Commissioner has generally recognised in the context of the Freedom of Information Act. Governments need to receive free and frank legal advice without fearing that it must be drafted in a form that is suitable for later public consumption.
Hon. Members may argue that we should try to use the current renegotiation of the access to documents regulation to implement the provisions of proposed new clause 1, but that measure would take us a long way beyond what would be acceptable in terms of releasing documents that are used at EU level for deliberations and decision making. The positions of other member states in respect of the documents that they make available to their Parliaments and public vary dramatically. Domestic regulations in several states lay out specific criteria on which documents can and cannot be released. Such criteria often allow for a great deal of discretion for Ministers or their officials, or impose strict limitations on the type and origin of documents to be released.
In some member states, the approach is to accept the general principle that as much documentation as possible should be released, with the only limitations being the prevention of harm, with harm often being defined in terms of personal, legal or economic impact.
Mr Lidington
I look forward to visiting my hon. Friend and seeing the framed Hansard extract of my argument. I could return the compliment by wallpapering one of my rooms with the Hansard report of one of his speeches.
Hon. Members referred to a number of EU member states in the debate. Denmark was cited more than once as the prime example of an open country, but the documents that the Danish Government must provide to the European Affairs Committee of the Folketing do not include the positions of other member states or amendments that they have proposed, and nor are the Danish Government required to provide documents that have been prepared for their internal use, such as inter-ministerial correspondence. Even in Denmark, the right of access is subject to limitations when protection of, for example, public financial interests is essential.
Charlie Elphicke
I do not decry the role of the House of Lords, the excellence of their lordships, the work that they do, their courage or the passion with which they advance their cases. Indeed, it is often said that the debates held in their lordships’ House are far more informed, considered, interesting and informative than our debates in this House. Having been in this place and not that place, I cannot compare the two. Nevertheless, it is a dangerous principle to say, “Let’s include a provision in the Parliament Act to say that the House of Lords should be not only the guardian of five-year Parliaments but the guardian of this Bill, to protect it from being altered.”
I would have much more faith in the proposal if reform of the House of Lords had been completed—something that I hope will come to pass. One of the problems that I have with the House of Lords is not the people in it or their mental ability—many of them are excellent people and their mental ability is far superior to mine—but my concern that they do not hold a democratic mandate. It is an important principle that where we have representatives in our legislature, they should have a mandate from the people. I guess it is because I am a Lincolnian politician—I believe in government for the people, by the people, of the people—that I believe that the sunshine of democracy should permeate our entire legislature, and not just this House. I admit to some radicalism in my thinking on such matters, but I believe it is important that all our politicians should be elected and have a democratic mandate.
Mr Cash
Will my hon. Friend turn his mind to this radical thought? If the House of Lords were to become an elected Chamber, it would not make the slightest bit of difference in respect of the argument that he is presenting, because the Parliament Act would remain on the statute book. The argument that my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has put forward would also apply to an elected House. The question, in a nutshell, is one of judicial supremacy, which is why I strongly support what my hon. Friend the Member for North East Somerset has been saying.
Charlie Elphicke
I take the view that this will be an important Act. It will introduce a referendum lock to ensure that we do not get dragged further into the European Union without consulting the British people. Inevitably, because Parliament is sovereign, it would be able to unravel the Act, to repeal it and to take away the people’s right to have a say in a referendum. That is the right of Parliament, but I do not agree with the argument for entrenching it to the same extent as the Parliament Act, as is suggested in the new clause. The Parliament Act is an entrenchment of our basic right not to have our democracy stolen from us. I would not place this legislation on that same lofty plane. It is important that Acts of Parliament should be able to be changed or repealed by a sovereign Parliament. The political issue is that any person or party that repeals an Act such as this will reap the whirlwind from the electorate. I am happy that we are able to pass and repeal Acts, and that the electorate should have the final say at an election, at which point they can condemn any such behaviour. I shall now give way to my hon. Friend the Member for Northampton South (Mr Binley).
Michael Connarty
My hon. Friend’s point is correct, but that is not what we are talking about. He describes a situation in which this or any Government decided to challenge the original decision. A law could be passed that would continue to run contrary to European Union law; I believe that that is happening in many countries. We and the Norwegians are the most obsessed with trying to get everything right in terms of fitting in with European directives. A challenge could be made, however, and we would then have to decide whether it was right for us to negotiate a change in the relationship or to abandon our law and accept the ruling of the European Union. At the moment, that does not happen.
My main point is that we in this democratically elected Chamber can overturn these decisions at any time if we have the will to do so. We are not bound by them for ever. Like any other law, we will be able to challenge this legislation in this Chamber, which is why I do not believe that we have to go through the rather tortuous, although eloquently described, process of applying an amendment to the Parliament Act 1911.
On the ability of the Lords to protect us from changes to our democracy, they have not protected us from this shabby coalition, which is proposing a law that would guarantee that the coalition would run for five years—a proposal that I spoke against in the first debate in this place after the election—unless the shabby minority part of that shabby coalition, the Liberal Democrats, decide to pull it down, because no other person in this place could do that. If the Lords could protect us from that, I might have more confidence in the 1911 Act.
Mr Cash
I should like to endorse the general thrust of the new clause tabled by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), although I must qualify that slightly by saying that I do not take the view that there is a difference between different types of statute. However, that does not make a material difference to the thrust of his argument, which is that we must at all costs preserve the right of this House ultimately to make the decisions. Indeed, in the 1870s—it might have been earlier—the statesman John Bright put forward the proposition that led to the Parliament Act 1911, some 30 years before it was implemented, precisely because he did not believe in privilege, in aristocracy or in the House of Lords as it was then constituted.
The reality is that we can achieve the objectives by adopting the new clause without necessarily accepting that the House of Lords could not become an elected body if that were the view of this House in due course. I do not accept the proposition put forward by my hon. Friend the Member for Dover (Charlie Elphicke) because so long as we have a second Chamber, the House of Lords will be the House of Lords—irrespective of whether it is elected.
The question of constitutional statutes has been introduced as a notion, but it is not intrinsic to the argument. What is essential is to ensure that we do not allow the Supreme Court to adjudicate over and above the decisions taken by our Parliament. That is the key issue. Some futile commentators—and, if I may say so, some Members of this House—mislead themselves from time to time by suggesting that sovereignty is not such an important issue. The reason for its importance is very simple: we Members are elected to make decisions, and all the other issues, such as dealing with burdens on business and so forth, stem from that. That explains my view of the European Union, which is that, where necessary, the sovereign Parliament should override through the “notwithstanding” formula to which my hon. Friend the Member for North East Somerset rightly referred and which I have employed on a number of occasions when I have been supported by Conservative Front-Bench Members—for example, when we were in opposition and with respect to the Legislative and Regulatory Reform Act 2006, and on other occasions.
What we need to insist on above all—it cropped up in the previous debate—is that this House on behalf of the electorate represents the democratic process whereby we are voted in to make decisions. We must insist on that at the expense of judicial supremacy. Even though I am the first to say that it is for the courts to interpret legislation, it is not for them to make it. That is the fundamental point. I thoroughly endorse both the sentiments and the wording of the new clause.
Mr Lidington
I thank my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg),who I know takes a strong interest in these important constitutional issues—and he is right to do so. Our short debate has allowed him and other hon. Members to seek a means to entrench the Bill once it reaches the statute book, and to protect it from future attempts at repeal. At the same time, the new clause has been drafted in such a way as to permit my hon. Friend the opportunity to raise broader constitutional questions about the ultimate authority to take decisions and whether that should lie with Parliament or with the judiciary. My hon. Friend cited in particular the leading judgment of Lord Justice Laws, which has been quoted on many occasions during our proceedings on theBill.
I am afraid, however, that although I agree with much of the sentiment that underpins the new clause, I cannot support the new clause for reasons that I shall shortly provide. Let me first explain a little about the Government’s interpretation of the new clause and its effect. It would introduce a new category of Bill, which could not be passed under the procedure provided by section 2 of the Parliament Act 1911.
As all hon. Members will be aware, section 2 of the Parliament Act 1911 makes provision under which most public Bills can be enacted ultimately without the approval of the House of Lords. There are, however, two exceptions to the general rule. The first relates to money Bills, which have their own procedure under section 1 of the Parliament Act. The second exception is for what that Act terms
“a Bill containing any provision to extend the maximum duration of Parliament beyond five years”.
Under the new clause, there would be a third exception: namely, any Bill that sought to amend or repeal what would be provided for in sections 1 to 7 of the European Union Act 2011, which this Bill will become if Parliament agrees to its passing. In practice, this would mean that the legislation could not be either repealed or amended in respect of those sections without the express consent of the House of Lords.
I hope it goes without saying that I fully support the political intention of the new clause to help to ensure that the Act remains on the statute book for a long time to come. As my right hon. Friend the Foreign Secretary said on Second Reading, the Government believe that the Bill should become
“part of the accepted constitutional framework of this country”.—[Official Report, 7 December 2010; Vol. 520, c. 197.]
It is right to point out, however, that the Parliament Act 1911 has been amended only once, in 1949. Since then, Parliament has not considered it appropriate to single out any other pieces of legislation—for example, the Acts of Parliament passed to provide for Scottish, Welsh and Northern Irish devolution, the Constitutional Reform and Governance Act 2010 or, indeed, the European Communities Act 1972—for similar special status. Even enthusiastic supporters of the Bill would find it difficult to argue that this piece of legislation should be singled out in this particular way, which is denied to other items of legislation that might generally be accepted to have important constitutional significance.
Mr Cash
Even if my right hon. Friend were right in his general assertions about elements of the Bill, the implications of clause 18, as the European Scrutiny Committee report made clear, puts it into a very special category. Despite our attempts to amend that clause, which were sadly and tragically defeated, the fact remains that clause 18 makes a very significant change to this country’s constitutional arrangements. For that reason, the Bill should indeed be put into a different category.
Mr Lidington
I am grateful to my hon. Friend for acknowledging the importance of clause 18. We had a full day’s debate on that clause at the start of our Committee proceedings, but I rather think that you would warn me, Mr Hoyle, against recapitulating that debate this evening. It is hard to imagine why a future Parliament would choose to repeal this Act, thereby abolishing the referendum lock and the enhanced control and scrutiny that the Bill provides for Parliament and the British people. It would incur a high political cost for any Government who brought forward such a measure and, indeed, for individual Members of Parliament who were prepared to walk through the Lobbies in its support.
It is an important part of this Government’s commitment to rebuilding trust with the British people to make clear what the future arrangements should be. Although it is always possible that a future Government will decide to act differently, I find it hard to imagine that any such future Government would be able to defend taking away from the British people the right to have their say about further changes to the European treaties.
I have further concerns about the impact of the new clause on the long-standing relationship between this House and the House of Lords. It would alter the relationship by expanding the relative powers of the House of Lords. It has never been part of the Government’s intentions for this Bill that it should be used to alter that relationship.
Michael Connarty
I want to speak briefly in support of new clauses 3, 4 and 5. They get to the meat of the discussion we should have been having with the Government before they introduced this silly Bill. It is silly because it is never likely to be used, as there are so many ways that a Government Minister of any political complexion who wishes to continue with the European project can get measures through Parliament, such as by saying that they are insignificant or that it is not necessary to have an Act of Parliament. Therefore, I do not think that the Bill’s measures will be used a great deal. It is based on the premise that the Government want to put in place the measures they introduce, and presumably a Government of any complexion will know that they need a majority in the House in order to introduce any measure that they might decide is significant enough to be dealt with by a referendum or an Act of Parliament.
In reality, therefore, the Bill is a bit of a public relations exercise. But the new clauses are not. They would address the things that are wrong at the moment with the process of dealing with the emergency brake. It should be in place and it should be used properly in a way that gives a Government a chance to speak on behalf of their Parliament and their people in the Council in a fundamental way. New clauses 3 and 4 are very attractive, because would give teeth and meat—a bit of beef—to a Bill that lacks that completely. The Bill is a list of things which might be on the mind of the body politic and perhaps the anti-European press, but it does not have any substance. The new clauses have substance, as they lay out clearly how the brake should be used.
There is absolutely no doubt that new clause 5 is necessary. It deals with a tax and we should have had a similar clause, somewhere along the line, on the giving away of our social security rights. It is clear that people who come to this country to work see social security as an extra payment that does not come out of the pocket of their employer. When someone leaves their family back in Poland, where they still have their house, to come to this country to work, they get all the benefits required under our social security legislation—tax credits, child tax credits and so on—which they often send back home. They also often end up with a council house, because they then bring their family to this country and live in overcrowded conditions, and they leave their house back there being paid for by the British taxpayer. All those things might have been examined seriously if we had had a provision such as new clause 5 to deal with how social security would transfer.
Clearly the own resources arrangement is a tax and will be about creating a European tax as a substitute for VAT. I have been at conferences and seminars called by the Commission in other countries to press that point heavily, and thank goodness Treasury officials were there to argue hard against such an arrangement. We might say that it was one of the three red lines, because we said that tax was a red line that would not be crossed. However, the own resources debate will clearly be pressed again and again by the Commission, which will try to convince us that the proposed arrangement is not a breach of one of those red lines. New clause 5 would put up a nice barrier that we would have to cross purposefully and decisively if we wanted to move away from that red line. I commend the hon. Member for Daventry (Chris Heaton-Harris) for his tenacity, even at this late stage, in tabling well thought-out new clauses. I do not think that they come from a Eurosceptic, anti-European view; they would just be common sense and make good legislation.
Mr Cash
I wish to speak about my amendment 1, because it is important not only in principle, but in practice as we move forward on the negotiations taking place on two main issues. The first is European economic governance as a whole and the other is the, as yet, unformulated competitiveness package, which is coming up in the lift and being promoted vigorously in some other parts of the European Union.
The issue turns on the Bill’s proposal for the circumstances in which a treaty or an article 48(6) decision attracts a referendum. Under clause 4(4)(b), we would not have a referendum where
“the making of any provision that applies only to member States other than the United Kingdom”
came into play. It might sound obvious that we would not want to have a referendum if it did not affect us but, unfortunately, that rather innocuous wording raises a substantial and profound problem.
I remember Chancellor Kohl talking in the 1990s about the need to move forward with a two-tier Europe and he used the analogy of a convoy. The Minister for Europe is doubtless aware of what is coming up in the lift, but he should also be very worried about it because it is one of the greatest and most serious problems that we face. Many people, including distinguished commentators from the Financial Times and other newspapers, take an interest in these matters and get to the root of what is going on in Europe at the moment. Rather than merely having a convoy of ships travelling at different speeds with the slowest eventually being required to catch up—that was Chancellor Kohl’s analogy—these proposals on European economic governance are the equivalent of having an aircraft carrier of the eurozone and a rowing boat of the other member states that are left behind.
I do not believe for one minute that we should be in any way trapped or lured—to use the Prime Minister’s words—into engaging in the kind of European economic governance proposals that apply to the eurozone or to the competitiveness package on their own merits. Given the record of the European Union, neither has worked, is likely to work or will work. But there is a danger in our acquiescing in allowing the other member states to go ahead by participating in the given procedure, be it the ordinary legislative procedure, the special procedure, the special purposes vehicle or something that arises by virtue of a treaty. The key test is whether it
“substantially affects all or any of the political, economic, fiscal, social or constitutional relationship between the United Kingdom and other Member States of the European Union.”
That is how my amendment 1 puts it.
If something falls into that category, as I firmly believe these proposals do, it clearly affects our fundamental relationship with the European Union in such a way as to require a referendum. We went through the arguments about the constitutional treaty and all that followed from it, and we went through the subsequent arguments about the Lisbon treaty and insisted on a referendum on it, because these things affected this fundamental relationship. I am talking about the Conservative party, rather than the coalition, which is quite a different thing. The basis on which we presented our argument for a referendum was that the treaty was creating a fundamental difference in the relationship between the United Kingdom and the European Union.
I cannot think of anything more likely to demonstrate that fundamental difference than the implementation of these procedures, irrespective of the legal niceties of defining the transfer of powers or competences—I could argue that there is, but that is not the issue I am raising. I am saying that the key question is the substance of what is being done, not merely the choice of specific words employed—not in the Bill, but merely in the coalition agreement—about the transfer of powers or competences. I defy anybody to find the words in the Bill which say that wherever there is a transfer of power or competence there will be a referendum. That is not what the Bill says; it chooses a list of circumstances, specifically but not generically, where a referendum will be required. That is a fatal flaw in the Bill, but the real problem is the substance of what is being decided in a given treaty or article 48(6) arrangement. To my mind, the creation of a two-tier Europe, with the United Kingdom bound into it by acquiescence, puts us at risk because it creates the aircraft carrier of Europe and we are left in the rowing boat.
Mr Cash
The answer is that my hon. Friend completely misunderstands the nature of the European Union. That is the problem in a nutshell. I am afraid that she does not understand—I have to put this to her very bluntly—that the creation of a two-tier Europe on such disadvantageous terms would be very damaging to us. If, however, an association of nation states were to decide to go in one direction, while we retained our independence and did not acquiesce in treaty or other procedural arrangements that bound us into that association, I would be content, but that is not what is happening.
What is happening is that we are being actively required to become and are acquiescing in becoming part of a new treaty arrangement that affects us all—all member states as a whole—but they get their solidarity and concentration of power with the new arrangements that they enter into; we are left within the legal framework, subject to the European Court of Justice and all that goes with it, without being party in practice to the arrangements that they devise. That is why the social and employment legislation, the fiscal arrangements and all the rest of it will have a disadvantageous effect on us if they proceed with those arrangements.
My right hon. Friend the Minister may say that the proposed arrangements will be purely intergovernmental. We had a bit of a discussion about that in the debate on an earlier proposal, but that is a far too simplistic way to put it because, as I pointed out in an intervention on the right hon. Member for Rotherham (Mr MacShane), the proposals of the European conclusions of 4 February specifically state:
“Building on the new economic governance framework, Heads of State or government will take further steps”—
I now refer to an answer that I received from the Financial Secretary, who put a lot of emphasis on this—
“to achieve a new quality of economic policy coordination in the euro area to improve competitiveness”.
So they are creating a new kind of co-ordinated arrangement. It continues:
“without undermining the single market.”
I believe that my right hon. Friend the Prime Minister was very insistent on including those words, so that the proposals would not put us at a disadvantage. My argument is that, whether or not those words are included, they will do so.
The proposals then go on to say—this is all part of the manner in which the system is being devised, which I regard as extremely dangerous and implausible—
“Non-euro members will be invited to participate in the coordination.”
It then says in respect of the President of the European Commission:
“He will ensure that the Heads of State or government of the interested, non-euro area Member States are duly involved in the process.”
In other words, the appearance is given, contrary to what the right hon. Member for Rotherham said—that we would not be party to those arrangements—that in practice this is a perfect example of the two-tier system in operation. It requires some careful analysis, but it does us no favours whatsoever.
Mr Nigel Dodds (Belfast North) (DUP)
The hon. Gentleman is putting the searchlight on a very important and difficult issue. It is vital that this matter is highlighted. To continue the aircraft carrier analogy, if we are in the rowing boat, the trouble is that we are not able to row in a different direction; we are inevitably carried along in the wake even though we may be in a different place. That has happened in the past, and it is likely to happen in the future.
Mr Cash
Indeed. As my hon. Friend the Member for Daventry (Chris Heaton-Harris) pointed out, the aircraft carrier is owned by the Germans and the French. That is all part of the problem.
Let us come to the crunch: the reality is that the creation of a German or Franco-German dominated Europe lies at the heart of this. That has been one of the major concerns that has permeated the Government’s thinking for a very long time, right back to when I was advancing similar arguments about the Maastricht treaty. In fact, it was one of the reasons why I took such exception to the treaty, not only because it created European Government, but because, as I said in several books and pamphlets at the time, it was creating a German Europe as well. We need not engage in shock, horror anxiety about that, but it is part of a new dimension that will now have a significant and very damaging effect on the United Kingdom. For that reason, we should not acquiesce in these proposals; we should do everything to defeat them.
Ian Swales (Redcar) (LD)
I give due credence to the hon. Gentleman for all his knowledge on the issue, but can he think of an historical precedent where the citizens of one country have had referendum rights over a treaty to which their country is not a party?
Mr Cash
That is a very interesting question. Conversely, there have been three referendums—one in Denmark, one in France and another in Ireland—that would have an impact on us and people voted against, but the process of European integration carried on notwithstanding those results. In fact, to use an analogy, we got the rough end because, although the referendums went the way that some of us wanted, they made no difference and integration carried on anyway.
We need to understand perhaps that these proposals are, in fact, extremely dangerous. I suspect that my right hon. Friend the Minister will argue that, although we are being denied a referendum, the proposal will require approval by the United Kingdom Parliament in due course. The essence of my case is that it will have such a profound impact on the United Kingdom, by creating a two-tier Europe, that a referendum would be required because it involves a fundamental change in the relationship between the United Kingdom and the European Union.
I should like to say many other things about the proposal—perhaps I will have an opportunity to do so on Third Reading—but I have described its essence. This is a very dangerous move towards a German Europe, or a Franco-German Europe—it does not matter which way we look at it—and it is a fundamental strategic mistake. I see the Foreign Secretary, sitting on the Front Bench. He has bought this argument. I warned him before the general election that we should not enter this landscape. I am glad that he nods his head, because I was explicit about that at the time.
Finally, I recall the words of Thomas Mann who proposed what I still believe to be one of the great questions of our time, as yet unresolved, but probably resolved by these proposals of a two-tier Europe along the lines of Chancellor Kohl’s analogy of a convoy, and ask, “What will it be—a European Germany or a German Europe?”
Mr Lidington
We are confronted with a cornucopia of amendments and new clauses covering a number of important but disparate subjects. I shall try, in the time available to me, to do justice to them, but I apologise to you, Mr Deputy Speaker, and to the House in advance should I not have time adequately to deal with each new clause and amendment.
My hon. Friend the Member for Daventry (Chris Heaton-Harris) tabled new clause 3, which is grouped with amendment 4. As he said, the new clause deals with the “emergency brake” procedures in the EU treaties. It is important to note that we cannot equate the emergency brake procedure with a treaty change or with the exercise of a ratchet clause, because those relate, rather, to controls on the exercise or use of existing competences to adopt European secondary legislation such as directives or regulations in the areas concerned. His new clause would enhance parliamentary control over the use of some existing EU competences. Subsections (3) and (4) would add a requirement for a motion to be passed by both Houses before the UK could decide not to invoke the emergency brakes that can be applied to proposals for measures under all four treaty provisions specified in the new clause, and also before Britain could put an end to the emergency brake procedure by agreeing in the European Council to refer the issue back to the Council to continue with negotiations under the ordinary legislative procedure.
As my hon. Friend said, it is our view that, even were the European Council to refer a matter back to the Council to continue negotiations, member states would still be free to pull the emergency brake again if they saw fit. As consensus is required on emergency brakes, and if parliamentary approval were not granted, the result would be that the UK was effectively able to block EU decision making in those areas, although in respect of certain measures, as he will understand, other member states could have recourse to use of the enhanced co-operation procedures without the UK’s participation where that was permitted under the treaties.
Mr Lidington
If my hon. Friend will forgive me, I want to reply to my hon. Friend the Member for Daventry.
Another example of the lack of flexibility in new clause 4 relates to the variation in payments from year to year. The December letter left some scope for real variation in payments over the next financial perspective, provided that payments over the whole period were frozen in real terms. The new clause would prevent any payments variations, but such variations are a natural consequence of how the financial framework works. For example, a commitment of €100 in 2005 might lead to a payment of €20 in 2006 and €80 in 2007. That is because commitments made in one year do not translate into uniform payments over subsequent years.
We want to cut wasteful EU spending, not just to reduce the overall size of the EU budget, but to free up some resources to improve the value for money that we and other member states get from European Union spending, and to support activities such as boosting economic growth and competitiveness. We would like to see work done on improving the way in which the EU budget supports economic growth and competitiveness via the Europe 2020 strategy, subject to judicious selection of the most appropriate policy instruments. We want the EU budget to enhance security, via an active role for the EU as a global player. This could mean increases in spending under those headings, but we would insist on those being counterbalanced by reductions under other headings, all within our overall objective of restricting any increase in the EU budget to inflation.
Paradoxically, the new clause might force a referendum on the next financial framework exactly because we had successfully achieved our reform agenda within the constraints of a very tight limit on the size of the budget overall.
New clause 4 and the associated amendment 7 would hamper our objectives of driving down the overall EU budget and improving the value for money that it provides. I therefore urge my hon. Friends to withdraw those amendments.
New clause 5 is about taxes. The measures proposed in the new clause address matters that already fall within European Union competence.
Mr Lidington
We debated that issue at some length in Committee. My position and that of the Government remain that it is the sovereign right of member states to decide to agree treaties which affect them. What we are concerned about in the United Kingdom is defending the right of the British people to have a lock on anything that transfers powers away from this place to European Union institutions, and not to interfere with what other Governments decide independently that they wish to do.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Does the hon. Member for Stone (Mr Cash) wish to move his amendment formally?
Mr Cash
I will not move the amendment, but I do not agree with what the Minister has just said.
The Deputy Speaker put forthwith the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Clause 10
Parliamentary control of certain decisions not requiring approval by Act
Amendment made: 3, page 9, line 2, at end insert—
‘(1A) A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies unless Parliamentary approval has been given in accordance with this section.
(1B) Subsection (1A) applies to a decision under Article 48(7) of TEU which in relation to a provision of TFEU applies the ordinary legislative procedure in place of a special legislative procedure not requiring the Council to act unanimously.’—(Mr Lidington.)
Third Reading
The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)
I beg to move, That the Bill be now read the Third time.
I begin by thanking the many hon. Members who have participated in the very extensive debates on the Bill, with five full days in Committee, comprising more than 30 hours of this House’s time. So many Members have spoken—more than 90 in total—that it would take most of the two hours available for Third Reading to pay tribute to them all. I am delighted that the Bill has stimulated such interest.
Invidious as it is to single out any Member—I apologise to those I do not mention—I want to pay tribute to my hon. Friend the Member for Stone (Mr Cash) and the European Scrutiny Committee. Whether or not we were surprised that he did not move his amendment just now, we were certainly not surprised that he did not agree with what my right hon. Friend the Minister for Europe has just said. I thank my hon. Friend and his Committee for their two very comprehensive reports on the Bill. The Government do not take the same view as the Committee on all the points they have raised, but the Committee has fulfilled its vital role commendably. The whole House has benefited from my hon. Friend’s knowledge and his long-held and principled approach to these matters.
On the Opposition Front Bench, the hon. Member for Wolverhampton North East (Emma Reynolds), a shadow Foreign Office Minister, impressed the whole House with her first speech from the Dispatch Box, which is no easy thing to do. She showed herself to be one of the Leader of the Opposition’s new generation with a bright future. As I understand it, his “new generation” is a sufficiently elastic term to encompass the hon. Member for Caerphilly (Mr David), the shadow Minister for Europe, as well—[Interruption.] Indeed, the squeezed middle—another elastic and not exactly defined term. Perhaps both terms are suited to him. Once again, he has shown the House his great eloquence.
My hon. Friend the Member for Harwich and North Essex (Mr Jenkin) spoke with great verve and passion. My hon. Friend the Member for Hertsmere (Mr Clappison), who is in his place, brought to the debate his usual rigour and deeply held belief in parliamentary accountability. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) has spoken with all the zeal for democracy that we associate with him. My hon. Friend the Member for Dover (Charlie Elphicke) has demonstrated great fluency and articulacy in the debates, including earlier this evening. I am grateful to my hon. Friend the Member for Esher and Walton (Mr Raab) for the legal focus he has brought to the debates.
I thank my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) for the intelligence and thoughtfulness he has brought to the debate. My hon. Friend the Member for Stroud (Neil Carmichael) gave us the benefit of his considered and always thoroughly reasoned opinions. My hon. Friend the Member for Spelthorne (Kwasi Kwarteng) showed the House his enormous skill in debate. My hon. Friend the Member for Wellingborough (Mr Bone) made the debates more enjoyable for everyone, not least with his unquenchable sense of mischief. My hon. Friend the Member for South Swindon (Mr Buckland) made very carefully thought-through contributions, and my hon. Friend the Member for Ipswich (Ben Gummer) gave the House the benefit of his great clarity of mind.
My hon. Friends the Members for Witham (Priti Patel) and for Grantham and Stamford (Nick Boles), my right hon. Friends the Members for Wokingham (Mr Redwood) and for Charnwood (Mr Dorrell) and my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) have all spoken well in these debates. I thank my hon. Friends the Members for Camborne and Redruth (George Eustice), for Gainsborough (Mr Leigh) and for New Forest East (Dr Lewis). I am particularly grateful to my hon. Friends the Members for Daventry (Chris Heaton-Harris), for Wycombe (Steve Baker), for Cleethorpes (Martin Vickers), for Bury North (Mr Nuttall) and for Crawley (Henry Smith), whose rigorous scrutiny has helped us materially to improve the Bill as it has gone through Committee.
From another party, my hon. Friends the Members for Cheltenham (Martin Horwood), for Westmorland and Lonsdale (Tim Farron) and for St Austell and Newquay (Stephen Gilbert) very ably represented their party and powerfully made the case for the Bill from a slightly different perspective from that of some of my colleagues.
On the Opposition side, I want to thank the hon. Member for Glasgow South West (Mr Davidson), without whose sharp wit no debate on Europe would be complete, although evidently we are having to do without it this evening, so perhaps the debate is incomplete. The hon. Member for Birmingham, Edgbaston (Ms Stuart), who is in her place, as always brought her great experience and independence of mind to bear. The hon. Member for Vauxhall (Kate Hoey) reminded us that she is a sincere tribune of democracy. Truly, no debate on these matters would be complete without the hon. Member for Luton North (Kelvin Hopkins), as I well remember from the previous Parliament. The hon. Member for Rhondda (Chris Bryant) left us in no doubt about his view of the Bill. The right hon. Member for Rotherham (Mr MacShane)—it is a pity he is not here—fulfilled his proper role admirably, which is to denounce the Bill in such fierce terms as to convince everyone else of its great merits. He has done us an enormous service by doing so regularly.
Lastly, I must thank my right hon. Friend the Minister for Europe who has led the debates in Committee with great authority and absolute command of the language and detail of the treaties and of the Bill. I and the rest of the Government are very grateful for the superb work he has done. I should also put on the record my gratitude for the outstanding work done by officials in the Foreign Office in putting together this legislation.
The Bill represents the most significant and radical overhaul of how the most important decisions in the European Union can be made by the United Kingdom—decisions on changes to the EU treaties—since the European Communities Act 1972. It is an overhaul that is as profoundly needed as it is overdue. It marks a real shift in power from Ministers to Parliament and from both Ministers and Parliament to voters themselves.
The last 13 years of Labour Government saw the old approach tested to destruction. Four major treaties were signed. One was blocked by referendums in other countries. A referendum was promised in this country but denied and a treaty was taken through Parliament with no basis in any party’s manifesto. After those 13 years, the EU’s reach and power has grown and grown, but its standing with the British people has fallen at the same time.
For any democrat, that must be a deeply unsatisfactory state of affairs. Whether one approves of everything in all these treaties, which is a respectable position but not mine, or believes, as I do, that the EU now has considerable powers that would far better be matters for national Parliaments and Governments, we cannot go on like this. The EU’s future developments must be put under proper democratic control. That is an absolute necessity from any point of view on the EU if disenchantment with it is not to grow yet worse.
Mr Cash
It will not be the first time that my right hon. Friend has found I am not taken in by flattery. The real question is the one to which I referred a few moments ago when he was in the Chamber, which relates to the landscape of the European Union, increased Europeanisation as it affects this country and the manner in which the predominance of other countries is clearly moving further and further upstream. Does he really believe that the Bill will make any substantial difference to that question, particularly if we go down the route of a two-tier Europe?
Mr Hague
The Bill does make a material difference. It does not address the whole question my hon. Friend raises, because there are many different dimensions to it, but it is an important measure. In any future negotiations about the EU, British Ministers will be in the European Council saying very clearly that, under a vast range of provisions set out in the Bill, proposals that may be put to them in the European Council would require a referendum in the UK. That does change the negotiating position in Europe and the freedom of manoeuvre of British Governments, and it means that Governments have to be very alert to that point—not just British Governments, but all the Governments of the European Union. I can tell my hon. Friend that when I explain that point to them, as I already do, it makes a considerable impact on them.
My view is that the European Union has great achievements to its name: the single market; the enlargement of its membership, which has done so much to strengthen the spread of freedom and democracy in Europe; and the effective use of European nations’ collective weight in the world, which remains of high importance to our values and interests, as we have seen on sanctions and on Iran and hope to see in response to events in north Africa.
There are great challenges for the nations of Europe, in growth and global competitiveness, where action in the European Union on widening further markets in services, energy and the digital economy could do much to help to lift our economic prospects, but all that will be ever more overshadowed if the EU’s treaties change yet again to enlarge its powers still further without popular consent. That is the point that the Bill addresses.
Mr Cash
I am fascinated by the line that the Opposition are taking. I am not impressed, if I may say so, by the line being taken by the coalition Government. It is difficult to resist the idea that a referendum is necessary in certain circumstances, so I rather anticipate that there will not a Division this evening, since the Bill is associated with what is really no more than the unlikely event of a referendum being called in respect of any of the provisions contained in it. The circumstances and the facts that we have had the opportunity to examine in the course of proceedings on the Bill, and indeed the trend, as I said in my earlier speech, of the UK being drawn in to the legal framework of a two-tier Europe but actually being neutered at the same time, increase the necessity of a proper referendum—an in-or-out referendum—so that the British people can decide whether they want to be Europeanised or absorbed, like ectoplasm, into the strange new world being created, over which we have increasingly little influence, let alone control.
This is, fundamentally, about a democratic deficit. I do not believe that the Bill will make any substantial difference to the landscape to which I referred in my previous remarks to the Foreign Secretary. A strategic mistake is being made in respect of Europe. Europe is failing. There is incredibly high unemployment in other member states: Spain’s youth unemployment, for example, is 43%. Very serious damage is being done by burdens on business—50% of all our economic regulation comes from the EU—and there is a failure to provide oxygen for the small business community in this country. The Bill does not, in my opinion, make any difference to those matters.
We have faced for some time now an economic crisis in Europe, but none of the measures—including the 2020 strategy, which will be no more successful than the Lisbon agenda, which had to be abandoned—will make any substantial difference to the mistakes and distortions associated with the European Union as it now is which continue to affect the United Kingdom. We need to renegotiate the treaties, and the Bill will not change that fact.
At the beginning of our debates on the Bill, the European Scrutiny Committee proposed to have a proper investigation into it. I am sorry that the Foreign Secretary did not feel that he could attend, but I am glad that the Minister for Europe came to see us, albeit somewhat late in the day. The Committee gave careful consideration to the Bill, but it is not evident that the Government paid very much attention to what has been described in many quarters as one of the best Scrutiny Committee reports produced in recent years. I am afraid that they have substantially ducked the issue.
I shall address a number of the points as they cropped up. Much play was made of the idea that the Bill would reaffirm the sovereignty of the United Kingdom Parliament, but when I tabled a motion to that effect the entire Conservative party, with some honourable exceptions, voted against it, which struck me as somewhat bizarre and extremely dangerous.
The European Scrutiny Committee report, which took evidence from many of this country’s pre-eminent constitutional experts, came to certain very clear conclusions. First, we noted:
“Clause 18 did not address the competing primacies of EU and national law”,
which is a matter of grave concern, and that on the evidence we received, clause 18 was “not needed”. We also concluded, on the evidence that we received, that
“If Parliament wills it may legislate to override the European Communities Act 1972 or the EU Treaties by repealing them, amending them or any provisions in them, or by clearly and expressly legislating inconsistently with them in respect of EU legislation or generally.”
That is a very important statement from the European Scrutiny Committee, because for many years it was asserted that, owing to the nature of the European Communities Act and the treaties on which it is based, with their amendments and their additions, it would not be possible for Parliament to legislate “notwithstanding the European Communities Act”. There was a movement towards the assumption—it was a dangerous habit of thinking and attitude of mind—that somehow we were locked into a situation that would never allow the United Kingdom to reassert its sovereignty in respect of European legislation.
For reasons that I have given, including the burdens on businesses, which are costing about 4% of gross domestic product, and the fact that since 1999 as much as £128 billion—it might be more now—has been lost to the British economy through over-regulation, we have to deal with these questions. That is the flipside of the idea of having a referendum on any further transfer of competences or powers. We have to deal with the existing European Union, not any future EU or any future extension of powers or competences. That is something for the future; we have to deal with the EU as it is now, and it is doing great damage, in many respects, to the UK’s national interests.
Mr Redwood
I am grateful to my hon. Friend, who as always is doing a great job on this issue. Will he agree that the legislation would be much more convincing if the very huge transfers of power now taking place—the power to regulate all our financial and banking services, the power in criminal justice and, soon, economic governance powers—were to be the subject of a referendum as a result of the Bill?
Mr Cash
Indeed, it would. For example, the fact that the City of London and its jurisdiction has legally been transferred to the EU is an indictment of the trends in the wrong direction. The landscape is changing in the wrong direction. With respect to the Foreign Secretary, the Prime Minister and other Ministers, I say that these matters need to be very carefully reviewed. All is not lost; the Bill is now going off to the House of Lords, and as I said earlier this evening, I hope that over the next few months serious consideration will be given to the impact of the European proposals on the competitiveness package, and the encroachments of European economic governance. I hope that these matters will be tackled. We need to ensure that we not only deal with future referendums, which we have been told will not happen until the next Parliament anyway—that is some years away—but tackle the crisis and the danger that we should be addressing now.
I trust that the House will not mind me mentioning that today I published a new note—perhaps I might even call it a pamphlet—entitled “Saving the British economy for the British people”. It sets out the history of the stabilisation mechanism and how it has drawn us into a dangerous situation regarding bail-outs. However, I will not go down that route now, because I want to return to what the European Scrutiny Committee said about the Bill. We concluded that
“if the legislative supremacy of Parliament is under threat, it is from judicial”
supremacy. That is the problem. It is a British constitutional problem, not only one of the assertions of the European Court of Justice; it is an internal domestic constitutional question, as Professor Tomkins made clear in his superb evidence. We said that:
“we attach weight to the warnings expressed by Professor Tomkins if the Government maintains clause 18 in the EU Bill.”
He spoke of the Bill overall as going
“out of its way to invite litigation”.
That is precisely the direction in which we do not want things to go. We need to be certain that the sovereignty of Parliament is a matter for Parliament and the people, not the judiciary or the Supreme Court, particularly in the light of the trend shown in assertions by the likes of Lord Steyn, Lady Hale and Lord Hope of Craighead, all of which we looked at in detail in the evidence that we received and the judgments reached when we concluded our review of that evidence.
Furthermore, we concluded:
“Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it has been included in the Bill is, in our view, exaggerated.”
We were also concerned about the manner in which the explanatory notes had been devised. We debated the matter at length, concluding:
“The Explanatory Notes present as fact what the evidence we have received tells us is disputed, viewed from any perspective.”
In other words, we were deeply dissatisfied with the way in which the explanatory notes dwelt on the idea of the common law principle. Indeed, I moved an amendment to clause 18 in an attempt to remove it from the framework of judicial interpretation, but that amendment too was defeated by the Government. In fact, I would say—I say this with respect to the Foreign Secretary and my right hon. Friend the Minister for Europe—that despite the soft words that the Foreign Secretary offered at the beginning of this debate, he knows well enough that we will not be put off or seduced by any flattery; we are interested in the arguments and the facts.
The European Scrutiny Committee analysed this Bill and found it wanting in many different ways. The other thing to say about clause 18 is this:
“The real point is whether a government can, in law, make it difficult for a future Parliament to amend or repeal the legislation it has passed”—
in a word, the point that the shadow Foreign Secretary made just now. We concluded firmly that
“in our view it cannot. Our conclusion therefore is straightforward—that an Act of Parliament applies until it is repealed.”
Sovereignty is not an arcane, theoretical or abstract question; it is, as I said in opening the inquiry, about the vast array of activities and functions that have been conferred on the authority of the European Union by the Lisbon treaty—a treaty that was passed by the previous Government but has since been adopted by our Government, despite the fact that we opposed its passage through the House tooth and nail when in opposition—and how they affect the daily lives of the people and businesses of this country in such a wide variety of ways, making it essential that we reassert the right of Parliament to override those provisions if they are deemed not to be in our national interest.
There is no presumption that merely because of the European Communities Act 1972 we have to accept as a matter of compulsion whatever is served up to us by the European Union. If it is not in our national interest, we must repudiate it. I see the Minister for Europe shaking his head. He knows that this is an important question, but he disagrees with me on it. I do not hold that against him; I simply say that he is wrong. There are those who will continue to argue that there is no way in which we can override European legislation, but no way will those of us who take the view that we do change our minds. We put the national interest first, and if what is being done under European Union proposals is not in the national interest, we will have to override it.
There are many aspects of the Bill, including the whole problem of the creation of a two-tier Europe and the extent to which a referendum is being denied to us under clause 4, that will cause grave difficulties for us over the next few months as we deal with the question of the eurozone and the countries that are not part of it. I regard this as a matter on which we will be judged as time goes on. On the exceptions, including clause 4, that preclude a referendum on matters that will dramatically affect the United Kingdom—such as a two-tier Europe or an accession treaty—the Committee concluded:
“the exceptions…have been drafted to allow the Government to support certain EU policies, such as strengthening of the eurozone, including through harmonisation of economic, fiscal and social measures if necessary…or enlargement, without triggering the referendum lock.”
The reality is that we will need a referendum if the creation of a two-tier Europe affects the United Kingdom in the way that we anticipate. If we are so affected, and we are put at a grave disadvantage, the responsibility will lie with the Government for refusing to allow a referendum. We are not only moving towards a situation in which the creation of a new kind of Europe is in prospect; we are on the brink of it. That landscape will not be an attractive one unless we move down the route of an association of nation states. The Foreign Secretary knows perfectly well that the arrangements in the Bill do not deal with the present. They deal only with the future, but we are confronted as I speak with the present danger of a European system that does not serve our national interest. We must meet that challenge, and meet it now.
European Union Bill
William Cash Excerpts(13 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Jacob Rees-Mogg
I thank my hon. Friend for that intervention, but I think there is a slight confusion. If we have an in/out vote, and it is won by the pro-Europeans, it is a vote for the EU as it exists and with all the powers that it has. Those of us who support this referendum lock Bill do not want further powers going to the EU or to get accidentally into a situation in which we sign up to things we probably opted out of. That is the complication of having an in/out vote that is won by the “in” side but not on the issue discussed and subject to the referendum lock. That is the danger; that is the unintended consequence.
The unintended consequences go further than that. Should there ever be a Labour Government again—I am sorry to say that there probably will be, although possibly not in my lifetime—those of us who support the Bill would want them to accept it and ensure that the referendum lock held as an important constitutional change. We would also want any change to the powers of the Europe Union to be subject to a referendum of the British people. However, if the Government concerned were unpopular, as happens to Conservative Governments too—and even, possibly, to coalition Governments—and felt they had to sign up to some marginal European treaty requiring a referendum, but knew that it could result in an in/out vote, they would be more likely to repeal the Bill lock, stock and barrel and say, “Look, we cannot do that because we would then have a vote against us at the second stage.” The second unintended consequence, therefore, is that we would weaken the whole effect of the Bill by making it less likely to become the accepted constitutional practice, which is what I would very much like to see.
Mr William Cash (Stone) (Con)
Does my hon. Friend accept that this is in fact a debate about an ingenious device—I hope I am right in thinking he mentioned the word “genius”—and that it is about the principle of continuing membership? Does a question not then arise that has not yet been answered—namely, membership of what?
Jacob Rees-Mogg
My hon. Friend always puts his finger on the nub of any European matter. I agree that the new clause is a device concerning a strong principle—that is the genius and anger I was talking about. The problem is that in its anger, it could achieve the wrong result. We do not want to set our firm principles on a weak base and a new clause that would actually undermine what those of us who are supporting the Bill wish to see achieved.
I agree with many hon. Members that there may well come a time when we would want an in/out referendum, but it needs to come when it has been the subject of important and urgent debate up and down the country; it needs to come when the British electorate are marching to say, “Now is the time to decide whether we should stay in this rotten institution, corrupt as it is, or whether we will put up with it in spite of its corruption, its inconvenience and all the problems associated with it, because there are some marginal trading advantages and we have got a few sanctions against Iran”—or whatever the other arguments are in favour of it. We need to have the referendum at the right time, as a matter of a discussion of and about itself, not as a result of the random collision of atoms and following a debate on something completely separate—for example, a minor extension of some European power or competence.
Neither should an in/out referendum suddenly follow a referendum in which 20 people or 20% of people—let us be generous—have voted. Suddenly, we would have thrown all the balls in the air without any proper consideration or deliberation, and without having set out the framework for the debate we want. Those of us who are broadly Eurosceptic should oppose the new clause, because it undermines exactly what we want to achieve, and should support the general thrust of the Bill, which is designed to protect this country from further sacrifices of our authority and the people’s power. We should rightly remember—it being a referendum lock—that it is not the power and mystique of these green Benches that are being given away, but the power and mystique of the British people themselves. They are the people we should trust. We should trust them with a referendum lock, and not rush headlong out of anger into a confusing and mistaken new clause that would undermine this lock that we are giving to the Great British people.
Mr Hollobone
I am grateful to my hon. Friend for that intervention because he has hit the nail on the head. In the few times I have had the misfortune to go abroad, whenever I come back into this country, I always try to do so without coming through the European Union section. I have been told several times that a British passport holder has no choice and has to go underneath the blue flag with the yellow stars. I just think it is a huge shame that our country has come to that.
The Minister gave the game away early on when he had difficulty responding to my perfectly reasonable request that Her Majesty’s Government undertake a comprehensive audit of the costs and benefits of our membership of this European club. I would have thought that everyone would be in favour of such an audit. After all, if the argument for being in the European Union is so strong, why not get the evidence together and put it to the British people? Those who feel strongly that the time has come to leave the Union would also like to see the facts and figures presented. I perfectly understand that it is going to be apples and pears, and that some things are not perfectly calculable, but Her Majesty’s Government should at least make some kind of effort to tell the British people why it is so important for us to remain in the EU. As far as my constituents and I can see, the membership subscription is now too high, we have no effective control over our borders with the EU, and business and other institutions in our country are being strangled more and more, month by month, by the red tape emanating from Brussels. It is time that it stopped.
Mr Hollobone
I cannot think of a single reason—a straight answer to a straight question—and my Kettering constituents would greatly welcome the repatriation of powers that we have given away all too freely. Another example is the disgraceful common fisheries policy. I notice that a Department for Environment, Food and Rural Affairs Minister is now on the Treasury Bench; he is doing his best in Brussels to try to end the scandal of fish discards, but it is like pushing water uphill. We are not going to get anywhere with Brussels because it will not see sense on these issues. If I were to ask my Kettering constituents whether we should repatriate our powers over Britain’s fishing waters, there would be an overwhelming vote to do just that. We have given all these things away.
Kate Hoey
I am sorry that I missed the contribution made by my right hon. Friend the Member for Leicester East when I had to leave the Chamber. We were both in Europe for a short period when my time in the Home Office coincided with his time in the Foreign Office, so I know his views on the matter and I am pleased that he has them.
I genuinely do not understand what we are afraid of, and neither do the public, particularly those who are strongly in favour of a referendum. What is the problem? We can no longer put it down to cost, because we are having this ridiculous referendum on the voting system, which most people are bored silly with—they yawn when it is brought up, even at political party meetings. I accept that it was set out in the coalition agreement, but there is no huge enthusiasm for that referendum, and yet we are spending so much money on it.
A referendum on the European Union would revitalise the political debate within this country. We would enliven things and go back to days of having public meetings. I accept what my hon. Friend the Member for Bassetlaw (John Mann) said about the economic problems the country faces, but I do not think that having a debate on the EU would be a diversion. It would be a way of showing that there are other ways of running this country’s whole economic policy. We would get that debate and get out there among the people, because I know that they feel strongly about it.
I will not speak much longer, other than to say that I have been quite proud—others will laugh—to be associated with the campaign on the in/out referendum run by the Daily Express. As some Members might already have mentioned, yesterday a number of us took 373,000 envelopes, which had been returned from across the country, containing the slips published in the Daily Express asking for an in/out referendum. Those were just the envelopes, so many more were sent via e-mail. I think that we should be proud of the fact that a newspaper has managed to arouse that debate, and I would not care whether it had been done by the Daily Express, the Daily Mail, The Daily Telegraph, The Sun or even the Daily Mirror.
The hon. Member for Aldridge-Brownhills (Mr Shepherd) talked about a growing mood in the country. We can sit here in isolation and ignore that mood, or we can grab it and lift it as an opportunity to get some decency and honesty back into politics. We should get that debate and have a referendum at some stage on whether we are in or out of Europe. I know that the Whips do not want Members to vote for this small new clause, but I say to Government Members that I have opposed my Whips on many occasions and am still alive and still here. To vote for it would send out a little signal that the issue will not go away.
Mr Cash
For me, the debate is not about the wording of the new clause, but about a question of principle. It is also about whether we are a democratic nation. As my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) pointed out, and as many of us have argued for so many years, the question of why we are here in this House, ultimately, is entirely dependent on our relationship to the electorate. This is about democracy, not government.
We began our proceedings on the question of sovereignty some time ago, when we debated clause 18. In that debate, I made it clear—I believe that we won the argument—that the real question was whether this country would be able to govern itself or would end up being increasingly governed by judicial supremacy, and the European Scrutiny Committee report clearly demonstrated that point. For those of us who watched, for example, the recent BBC 4 programme on the Supreme Court, there is no doubt at all about the attitudes of some of the Justices in the Supreme Court and of many senior academics who are deeply influential in the Foreign Office and elsewhere. I know that the Lord Chancellor and Secretary of State for Justice, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), understands that extremely well; I have heard him say so.
Mr MacShane
The hon. Gentleman says that the previous and current Chancellors entered into an unlawful act. Is he saying that the current Chancellor of the Exchequer is a criminal?
Mr Cash
That is an absurd comment. I am speaking in terms of the vires of the treaty. It is a different question; it is nothing to do with what the right hon. Gentleman has said. It was a serious misjudgment. It was an agreement that cannot be justified by the legal base. The European Scrutiny Committee said in its report that the agreement on that particular mechanism was legally unsound. That is what I mean. It has exposed the British taxpayer to a very significant sum of money.
However, that is just one example. The real question, ultimately, is one of democracy and trust. It is a matter of principle, and that principle is demonstrated by what happened in respect of the Lisbon treaty. We stood here in this House, month after month, debating the Lisbon treaty. I tabled perhaps 120 or 130 amendments. We united the Conservative party: for the first time since 1972, we had complete unanimity. Of those with a different view, only one is still in the party now—the others have all fled to other parties—and he is the Lord Chancellor and Secretary of State for Justice. He is entitled to his view and I respect him for the consistency with which he pursues it, however much I may disagree. The Conservative party was united in opposing every aspect of the Lisbon treaty and united for a referendum, and we voted accordingly. For reasons that have been put forward, but which I simply do not accept, that promise of a referendum was torn up.
Other promises with regard to the European issue—promises made in our manifesto—have not been sustained. These are serious matters. It is no surprise that the people of this country lose faith and trust in their politicians if such decisions are taken. This applies just as much to the Labour party or the Liberal Democrats. Broken promises are broken manifesto promises. Manifesto promises are the basis on which people ask to be elected and get into this House to represent the interests of the people who vote for them in the polling booth. If we break our promises, it is hardly surprising if the people of this country begin to feel a sense, first, of unease, and then of contempt for the political system.
This is constitutional reality, but also practical reality: it affects people in their everyday lives. We heard from the hon. Member for Vauxhall (Kate Hoey) about the working at heights directive. We heard from the hon. Member for Bassetlaw (John Mann) about the posted workers directive. We have heard about the working time directive, the nurses agencies directive, and so on. The EU affects every single corner, every single nook and cranny of our lives, and we appear to be powerless to do anything about it.
A few days ago I got the figures from the Library on the balance of trade between ourselves and the European Union. They are alarming. In relation to the 27 member states, between 1999 and 2009—it has got very much worse in the past 18 months—we had an imbalance of £5 billion. With the rest of the world, we have had an improvement of £11 billion. There is a message there: you cannot trade with a bankrupt organisation if you are a successful company. The European Union, with its low growth, its riots and protests, and its failure, demonstrates why a referendum is required, as the new clause says, on the question of
“continuing United Kingdom membership of the European Union”.
For me, this is not just a question of in or out, but of to be or not to be a democratic nation state. This is not a matter to be trifled with.
I have profound views about the manner in which the coalition Government are dealing with this issue. As the Minister for Europe said in the debate last week, the Government have a European Affairs Committee, two thirds of which is Conservative and one third of which is Liberal Democrat. I pointed out to him that that Committee clearly could not have a vote, because we would win every time and we would have the policies that we stood on in our manifesto. So who is wagging the tail? It is clearly the one third of the Committee that are Liberal Democrats, combined with the instincts of those on our side of the equation who want more Europeanisation, although they disclaim it. That is another problem for us.
In Prime Minister’s questions a few weeks ago I asked why it is that at every turn, whenever an issue of integration comes up, we always go in the wrong direction. Why has repatriation been rejected? It is the repatriation of powers, using the well-known formula—notwithstanding the European Communities Act 1972—that would enable us to re-grow our economy and answer the question that is now before the Chancellor of the Exchequer: why is our economy not growing? We can tell him that it is not growing because 50% of our trade is with the European Union, which is itself in deep trouble and has low growth. At the same time, we cannot grow our economy because we are strangled to such an extent by the red tape of Brussels. Those two situations can be retrieved only through a new relationship between us and the European Union.
This is not just a constitutional argument, but an argument of practicality. It is an argument of to be or not to be a democratic nation state, a great sovereign state and a successful country that represents the interests of the people we serve—not ourselves. As I have said so often, it is not our Parliament, it is their Parliament. They are entitled to know that if things have not gone right—things certainly have not gone right with Europeanisation—we have an absolute obligation to ask them for their opinion. That is democracy, that is trust and that is what will restore integrity to this House and the British political system.
Mr MacShane
I have considerable sympathy with the speech of the hon. Member for Stone (Mr Cash). A year ago, his party was Cash and Carswell; now it is Clegg and Cable. His party has surrendered the authenticity of its position on Europe for the marriage of convenience with the Liberal Democrats. That is his problem, not mine.
I am not so sure that the European Union is to blame for the fact that we alone of the major European Union economies have zero growth, inflation of 3.6%, a shrinking currency and rising unemployment. This House and this Government could at a stroke tomorrow cut taxes, abolish national labour laws that they do not like and do whatever they think might turn this situation around. I gently suggest that perhaps it is the economic management that needs to be looked at.
I want to address the fundamental point that was made by the hon. Member for Stone and my hon. Friend the Member for Vauxhall (Kate Hoey), who has left her place. Should this democracy be based on plebiscites and referendums, or on the authority of this House? In recent days, the issue that the people of Britain have been in touch with me about is the selling off of Sherwood forest, our woods and our free forest lands to private interests. Perhaps I would like to respond to them by saying, “Let there be a referendum on this issue.” Previously, the issue about which people were in touch with me was the tripling of student fees, on which one of the coalition parties broke, in the most fundamental and flagrant way, a solemn promise that it had made and signed in public. We have no mechanism to have a referendum on that matter. I could also mention the education maintenance allowance.
European Union Bill
William Cash Excerpts(13 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Chris Heaton-Harris
Indeed. I know that there is to be a Backbench Business Committee debate on the matter in the not-too-distant future, in which I hope that Members across the House can voice their concerns about that ruling.
I return to the proposal to move one part of the Bill from clause 10 to clause 7. I was speaking about the indirect effects on the United Kingdom that the accession of the EU to the EHCR might have. When the accession takes place, the EU will be able to be taken to the European Court of Human Rights, which will undoubtedly lead to more cases, more cost and impact and, most importantly, more jurisprudence on EU law.
I am seeking not to upgrade the requirement for scrutiny, but to maintain the present level. Furthermore, I am concerned that in clauses 6 and 7, a few article 48(7) ratchet decisions are not caught by the Bill. Such decisions would be those applying to the EU’s ordinary legislative procedure where the EU treaties currently require a special legislative procedure, and the existing special legislative procedure does not require unanimity in the Council. In other words, while a switch in EU legislative procedure would be taking place, it would not involve abolition of a veto because a veto did not exist in the first place. However, the EU’s ordinary legislative procedure entails the European Parliament having co-decision rights with the Council. It can table amendments to a proposed law and veto the Council’s desired law. In general, a switch to the ordinary legislative procedure would take EU decision making further out of the hands of national Governments and give greater power to a supranational institution.
The article 48(7) ratchet clauses not covered by the Bill would confer new co-decision rights on the European Parliament in a few areas of EU law that I shall list now, and many more. Article 23 provides that every EU citizen has the right to diplomatic protection. We had a debate on what that might mean to the individual. I am speaking now about our power to scrutinise such decisions. Article 182(4) allows the Council to adopt, through qualified majority voting, but only after consultation of the European Parliament, specific EU research and development programmes. These must accord with the multi-year EU framework programme for research and development that is decided through the ordinary legislative procedure, but the decision on specific programmes sets their duration, the precise financial contribution by the EU—essentially by us—and the detailed rules for implementation. Furthermore, article 349 provides that the Council can adopt legislative measures on how EU treaties apply to areas known in wonderful EU parlance as the outermost regions. The way in which such specific decisions are dealt with in the Bill would be a retrograde step for democratic control, hence my amendment.
Mr William Cash (Stone) (Con)
I rise to support my hon. Friend the Member for Daventry (Chris Heaton-Harris) in the arguments that he has adduced. Since the Maastricht treaty, I have been gravely concerned about the operation of co-decision, and that is the best part of 20 years ago. The bottom line is that the situation has become increasingly difficult and unacceptable. The European Parliament, which is not a real Parliament at all—I see the Minister sighing. He cannot understand that the difference in the manner in which the European Parliament is elected, the difference in its procedures, the extent to which it holds Ministers to account, the intrusion of the process of proportional representation and the manner in which that operates, and many other aspects of the institutional difficulties and the democratic deficit that exists in the EU, are all part and parcel of the necessity to retain control in the hands of the national Parliaments. Unfortunately, for all the reasons given by my hon. Friend, for these specific matters there is an extension of this strange creature which used to be called co-decision, but which now, in typical Eurospeak, has become the ordinary legislative procedure. It is not ordinary at all, it is quite extraordinary, and it is not a legislative procedure in the sense in which we are legislating in this House.
The Temporary Chairman (Martin Caton)
Order. May I ask which amendment the hon. Gentleman is speaking to?
The Temporary Chairman
Order. The hon. Gentleman knows that when we are dealing with amendments, we deal with the amendments, not with general principles. If he could come on to the amendments in the group, I would be grateful.
Mr Cash
I am dealing specifically with amendment 24, moved by my hon. Friend the Member for Daventry, and supporting his arguments. My amendments are, in general terms, supportable in accordance with the arguments I have set out, and I have no further comments to make on them at the moment.
Mr Nigel Dodds (Belfast North) (DUP)
On the point made by the hon. Member for Daventry (Chris Heaton-Harris) about needing an Act of Parliament as opposed to a resolution of both Houses, is not one of the advantages of such a course that it gives more time for scrutiny, and that an Act is amendable in a much greater way than a mere resolution? Given the importance of the issues that the hon. Gentleman outlined, it is vital that measures to do not get passed into law here in the UK indirectly or by accident, or by unintended consequences, as so often happens.
Mr Cash
That is exactly the point. The combined effect of the amendments that we are discussing is directly related to what the hon. Gentleman says and to what my hon. Friend the Member for Daventry said. It is about time that the Committee understood that the importance of these debates is not being reflected by the votes or by the Government’s attitude. So far, they are not accepting any of the amendments. The European Scrutiny Committee has produced a report, and most of the amendments arise from it, including the ones we are discussing. My hon. Friend is a member of that Committee, and other members of the Committee are here as well. The net result is that we are not discussing the amendments properly.
The Temporary Chairman
Order. The hon. Gentleman seems to be talking about clause 9, but we are talking about two specific amendments to clause 7.
Mr Wayne David (Caerphilly) (Lab)
I would like to address my remarks to clauses 7, 8, 9 and 10, rather than to the amendments.
Mr Lidington
There is a clear statement on the face of the treaty that the EU shall accede to the European convention on human rights, and the Government’s position is that we accepted that statement and that commitment as part of the Lisbon treaty. As I hope to explain shortly, the law and our procedures in this House provide a number of safeguards that, I believe, will enable the House of Commons and the other place to scrutinise in detail any proposal for accession when it comes forward.
Mr Lidington
I will give way, but a large group of amendments is listed on the Order Paper for consideration later today, and those amendments stand in the names of many hon. and right hon. Members. I want to try to limit my comments on the early group so that we have time for a thorough debate on those amendments on justice and home affairs, which I think the Committee would expect.
Mr Cash
I have already been helpful to the Minister in limiting my earlier remarks. Having said that, I would point out to him that this afternoon the European Scrutiny Committee has considered the document, “EU Accession to the European Convention on Human Rights”, and set out in full, for the purposes of ensuring that the House is properly informed about what all the arguments amount to, both the questions and answers that he has given to that Committee. In particular, we include his letter of 30 June, our letter of 8 September and his letter of 21 September, and the detailed matters that arose on that, which take up two pages. We include our letter of 27 October and the explanatory memorandum of 15 November. The idea that the Minister can slide past this—
The Temporary Chair (Martin Caton)
The hon. Gentleman is supposed to be making an intervention, not a speech.
Mr Lidington
I look forward with relish to studying the European Scrutiny Committee’s conclusions.
There are already a number of ways for the Government and Parliament to exercise control over the precise terms of the EU’s accession agreement. Article 218(8) of the TFEU makes it clear that accession would be subject to unanimous agreement by the Council and that the Council’s decisions to conclude the agreement cannot enter into force until it has been approved by all member states individually and in accordance with their respective constitutional requirements, which are entirely a matter for each member state.
In addition, all EU member states are also parties to the European convention on human rights in their own right and will also be parties to the accession instrument. As with any other treaty to which the UK is party, the final accession agreement will be subject to the procedures under part 2 of the Constitutional Reform and Governance Act 2010—the codification of the Ponsonby procedures. That requires the agreement to be laid before Parliament for 21 sitting days, during which time either House may resolve that it should not be ratified. On top of those two levels of control, clause 10 of the Bill will add an additional layer of accountability by requiring a positive vote in favour of the agreement in each House before the UK could approve the EU’s decision to conclude such an agreement.
The Temporary Chair (Martin Caton)
That brings us to the debate on clause 7 stand part. If I am reading the feeling of the Committee correctly, I shall allow this to be a fairly wide debate, obviating the need for further stand part debates on the later clauses. If we all understand that, I shall show considerable laxity.
Question proposed, That the clause stand part of the Bill.
Mr Cash
I shall discuss my earlier point about EU accession to the ECHR in the context of the broad view that you, Mr Caton, have taken about the necessity to get some of these issues out in the open. I shall also refer to the document that I cited in my intervention on the Minister, because we discussed it in the European Scrutiny Committee today. The document is a Council decision, the object of which is to authorise the European Commission to start negotiations with the Council of Europe on the EU’s accession to the European convention on human rights. Our Committee reached the stage of a first report.
Chris Heaton-Harris
I very much apologise for not being at the European Scrutiny Committee meeting, but I was getting ready for this session. Government Members are giving the Bill the appropriate amount of scrutiny, but, looking at the Opposition Benches, I wonder whether anybody on that side cares.
Mr Cash
I could not agree more. My hon. Friend is right, and I am glad that the Minister also nods in agreement, because the accession is hugely important. I understand entirely that the Minister has a view about it. He has also heard the very good arguments that my hon. Friend the Member for Daventry (Chris Heaton-Harris) has made on the specific questions that arise. The Minister knows that it is a contentious issue, not least because we are also dealing with the interaction of the European convention on human rights, which came up in the statement on terrorism only an hour or so ago in this very House, and the crucial balance between security and freedom. We do not need to discuss control orders and counter-terrorism now, but I simply make the point that an enormous body of law could be affected by this.
The shadow Minister for Europe, the hon. Member for Caerphilly (Mr David), is attentive, was a member of the European Scrutiny Committee and is taking an interest in the debate. Of course, he has to be here, but I think that he would be here anyway. I find it strange that the Chamber is almost completely empty when we are considering these incredibly important issues, and it would be interesting to know whether there is any reason why. I am glad to welcome my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), who also has great knowledge of these matters. I hope that he will contribute to the debate, because we have just discussed this point in the European Scrutiny Committee, so it is an opportune moment for us to look at the principles involved.
The Government support accession by the EU to the ECHR, as the Minister indicates. I am sorry that we got a little tetchy, but he gave me the impression that he wanted to move on from the subject fairly quickly, and I understand the necessity to move on to later amendments. Our entire proceedings, despite some considerable reservations on the one hand and downright hostility on the other, have been conducted in a civilised manner and in accordance with what I hope debates in this House should consist of, but we need to take a good look at what the provision implies, and this clause stand part debate gives us the opportunity to do so.
According to the Secretary of State for Justice and Lord Chancellor, accession will close the gap in human rights protection as applicants will for the first time be able to bring a complaint before the European Court of Human Rights directly against the European Union and its institutions for alleged violations of ECHR rights. It will enable the European Union to defend itself directly before the European Court of Human Rights in matters where EU law or actions of the EU have been impugned.
The Secretary of State also says that accession will reduce the risk of divergence and ensure consistency between human rights case law between the European Court of Human Rights and the EU’s Court of Justice in Luxembourg. That is very important. Furthermore, he says that the EU will be bound by European Court of Human Rights judgments in cases in which it is a respondent, and like other contracting parties to the ECHR the EU will need to have regard to the Strasbourg jurisprudence.
I have heard the Secretary of State for Justice express views, albeit in other circumstances, in which he has raised concerns about the extent to which the judiciary is impinging on the sovereignty of this House, and I take him at his word. If he believes that, he might also consider that the EU will have to have regard to Strasbourg jurisdiction. Sovereignty, which we have debated at some length in relation to clause 18, is directly involved in that issue.
I do not need to repeat any arguments that I set out in relation to clause 18, and I have no intention of doing so, but the principle is about the use of jurisprudence from Strasbourg or the European Union Court, the European Court of Justice, and its effect on the legislative process in this House. There is also a constitutional question for the United Kingdom about the manner in which our judiciary is using Strasbourg precedents and importing them to their judgments in our courts. The Lord Chief Justice recently criticised that, because he is worried about the impact of accession on the manner in which we make our decisions and the invasion of common law precedent.
Stephen Phillips (Sleaford and North Hykeham) (Con)
I hesitate to intervene on such an erudite speech by my hon. Friend, but one problem that the Minister might want to consider in the context of the clause is that accession by the EU to the convention will create essentially co-ordinated jurisdiction over some areas between the European Court of Justice on the one hand and the Strasbourg Court on the other. Indirectly, therefore, it might affect the rights of this place, because more law and jurisprudence will come from both Courts, and that might interfere with the way in which we conduct business and are expected both to represent our constituents and to make our own laws consistent with accepted doctrine of parliamentary sovereignty. I have intervened now because I think my hon. Friend will agree with that point.
Mr Cash
Absolutely, and it could not have been better put. I am grateful to my hon. and learned Friend, who is Queen’s Counsel after all, as well as a distinguished member of the European Scrutiny Committee. He has been following the matter with great interest and makes the point very well.
There is a further point to make about the statement by the Secretary of State for Justice. He says that, additionally, European accession will mean that individuals who argue unsuccessfully in the European Court of Justice that the European Union has breached their fundamental rights—I stress “fundamental”—can, subject to the usual admissibility requirements, complain to the European Court of Human Rights that the EU has violated one or more of convention rights. The risk of confusion in that melee—that dual jurisdiction—is a serious potential problem. The Secretary of State for Justice went on to say that European Court of Human Rights judgments will be binding on the European Union as a respondent to the proceedings.
The Government, apparently, do not expect the European Union’s accession to the ECHR to have any direct impact on UK law. As article 6(3) of the treaty on European Union confirms, the fundamental rights guaranteed by the ECHR already
“constitute general principles of the Union’s law.”
However, importantly, the Secretary of State for Justice concedes that an adverse judgment against the EU by the European Court of Human Rights may require the EU to amend its legislation to protect individuals’ fundamental rights in a way that will have consequential implications for UK law. That is why I not only have sympathy for what my hon. and learned Friend said, but refer back to the Minister’s assertion that it will not have implications for EU law.
As I said, we have had a number of exchanges with the Secretary of State for Justice. It is best if I pick out one or two of his points from the correspondence, all of which will be set out for the benefit of Members. I am delighted that the hon. Member for Birmingham, Edgbaston (Ms Stuart) has come to swell the ranks of Labour Back Benchers, whose presence would otherwise be non-existent. Unfortunately for the Minister, it is just possible that she will agree with what we are saying, but we will wait and see.
In the letter of 30 June, of which I am sure the Minister is aware, the Secretary of State for Justice wrote to the European Scrutiny Committee, advising that the EU had adopted this mandate. He went on to explain that the Government support EU accession and made the remarks that I summarised earlier. We replied to him on 8 September stating that the EU’s accession struck the Committee as potentially a significant development in its internal legal order—despite treaty provisions to the contrary—and that it would amount to submitting the acts of EU institutions to independent external control by the ECHR. We also said it was a potentially significant development in the way in which EU citizens’ human rights are protected. We used the word “potentially” deliberately because it was difficult on the information before us to know how much the EU’s accession to the ECHR would be a symbolic gesture and how much it would lead to practical changes for United Kingdom citizens.
At this point, it is worth saying that these changes are not just generalisations, but that serious fundamental changes are being brought about by the manner in which the accession proposal is being put through. It is Government policy and it has significant implications for the daily lives of people. It is difficult in a debate such as this to give specific illustrations because the nature of the debate more or less precludes one from doing so. We are supposed to be talking about the generality of the constitutional change. However, I simply want to put on record that it will have a significant impact on the practical lives of the people whom we represent. That is the key reason for raising these issues.
We went on to note that the Cabinet Office guidance recommended that Departments should provide the scrutiny Committees with
“details of negotiating mandates as soon as they have been approved”.
We were grateful for the explanation of the Secretary of State for Justice on how the Government view these matters. We asked him to explain further how the current gap in human rights protection will be closed by accession, and what he meant by the word “directly” when he said:
“applicants will, for the first time, be able to bring a complaint before the European Court of Human Rights”—
that is the Strasbourg Court—
“directly against the EU and its institutions for alleged violations of Convention rights”.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)
This may be one of the rare occasions when those on my Front Bench do not object to my intervention. I really do not know what the hon. Gentleman is going on about. I have tried to read clause 7 again. Let us go back. The fundamental charter of rights was introduced because of the judgment against the European Union as an institution over Gibraltar. Rather than signing up to the ECHR, which would have been the logical and consistent thing to do once we had given it legal personality, we now have two systems. In the UK, we are signed up to the ECHR. I would have preferred it if the EU had signed up to the ECHR. The charter of fundamental rights gives additional rights. I singularly fail to understand the point that the hon. Gentleman is making because the situation is no different.
Mr Cash
I am expressing the view of academics who have studied this matter, perhaps more than the hon. Lady. [Interruption.] I am not making any personal assertions. I am just saying that the evidence that we have is that the charter will lead to legal uncertainty over how human rights are applied in Europe by introducing the additional standard of fundamental rights. I am not criticising the hon. Lady, but simply replying to her question by expressing the view that is taken in academic circles.
Stephen Phillips
Does my hon. Friend agree that the problem that is being expressed is that there will be two competing and overlapping systems, adjudicated upon by two different Courts, which is potentially a recipe for disaster? I think that is the point that he is seeking to make.
Ms Gisela Stuart
I accept that there is a potential conflict, but given that we are already a signatory to the ECHR and that the EU is already a signatory to the charter, none of this adds to the complexity—the complexity already exists.
Mr Cash
I accept that. That complexity does exist, and part of the difficulty with the whole issue of human rights, whether in relation to accession, the charter or the jurisdiction of the Courts, is shown in the comments of the Lord Chief Justice in his Judicial Studies Board lecture. He said to the entire judiciary, “Brothers and sisters”, referring to the other judges—[Interruption.] Well, that is their language. He said, “Brother and sister judges, will you please take note that our first obligation is to have regard to the manner in which we come to our decisions in the light of common law precedent?” He warned them against adopting Strasbourg’s precedents as a means of arriving at decisions in our own courts. He actually used the words, “We must beware”. I therefore entirely agree with the hon. Lady and with my hon. and learned Friend the Member for Sleaford and North Hykeham, and with the views expressed in the European Scrutiny Committee’s report that has come out only this afternoon.
Mr Richard Shepherd (Aldridge-Brownhills) (Con)
There is indeed a conflict of courts, which has been a matter of considerable concern for a number of years. It is the oldest question of all—who is the master? Where there is a conflict between a constitutional court—the European Court—and a human rights court, who prevails? That is the lack of clarity that exists and the worrying aspect for many people. It has been much talked about in the European Parliament in recent years.
Mr Cash
Indeed, and I add that my hon. Friend, who is a member of the Joint Committee on Human Rights, has been manfully seeking to contain the tsunami of opinions expressed in that Committee about the continuing onward movement towards accession of the type that we are discussing here and about the human rights culture and all that goes with it.
Mr Shepherd
I am not a lawyer, as is evident, but the great difficulty is that we have a common-law tradition, and the European tradition is civil law. Those are totally different ways of looking the world. It is the case law that I am worried about.
Mr Cash
Indeed, and that is because the abstract principles contained in the charter, the ECHR convention and so on have developed a completely different type of law from ours. In a way, this debate illustrates the difficulty that exists. I say to the Minister that as ever, the Government are acquiescing in greater movement towards the human rights culture.
I may say that if anyone knows of my record in relation to matters such as this, they will know that nobody is more likely to want to defend the rights of individuals. All Members are devoted to trying to ensure that there is proper protection. The trouble is how to get to that point. I believe, for example in relation to terrorism, that if we legislate in Westminster according to the principles of habeas corpus, due process and fair trial, and according to our established procedures, we can be sure that no suspect will be ill-treated in our prison cells, however much potential circumstantial evidence there is against them.
Habeas corpus is the first duty of the judge. Ask any senior judge and he will say, “My first obligation is to apply habeas corpus.” He would go straight down from his chambers to the prison to make absolutely certain that a person was not being ill-treated. If a writ of habeas corpus is issued, that is that. It is one of our most fundamental protections of liberty for the citizen. A great deal of human rights legislation, and all that goes with it, is moving us away from that. There are also political judges in other countries. There are different systems of law, yet we are acquiescing in a process of change away from our established system.
It is difficult to grasp the broad sense of what is happening, but it has a direct impact. However, the Government are acquiescing in it on a significant scale. That was why, when I was shadow Attorney-General, I proposed the repeal of the Human Rights Act 1998. That was our policy up to the time of the coalition agreement, and the Prime Minister himself repeatedly said that he thoroughly endorsed it. It was Conservative party policy, but under the coalition it has been abandoned, which seems a big jump. In addition, during the debates on the Bill we have seen further acquiescence in the process of moving towards the abstract principle, instead of the concept of the common-law precedent, which my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) mentioned.
Kwasi Kwarteng (Spelthorne) (Con)
My issue with my hon. Friend’s eloquent speech is that I do not understand the word “process” that he has been using. We are already under the convention regime. Whether we are in or out of that is a boundary question. He might want to get out, but that is a different debate. Nothing he can do to amend the Bill will fundamentally alter the fact that we are already signed up to the “process”.
Mr Cash
With great respect to my hon. Friend, he came into the Chamber somewhat after my hon. Friend the Member for Daventry (Chris Heaton-Harris) explained why he wanted to amend the Bill to ensure that we retain greater sovereignty in relation to certain matters arising under the European convention. I do not criticise my hon. Friend the Member for Spelthorne (Kwasi Kwarteng) for coming in a bit late, but we have already discussed that matter—we are now on clause stand part and the general question of the principles on which the convention operates. Does my hon. Friend want to intervene again?
Mr Cash
Certainly. My hon. Friend says, “We are where we are.” In this debate and in the debate on the individual amendments, the Committee is dealing with some very important principles, including the principal question of the shift of accession. Therefore, it is important for us to explain and illustrate, by reference to documents, which I am not going through in detail, and by general principles, that with regard to the charter, the European Court of Justice, the European convention on human rights and the Strasbourg Court, there are important questions that will affect the constituents whom we serve.
For example, the Minister has told us that the only way that individuals can argue in the Strasbourg Court that the EU has breached their human rights is to bring proceedings against one or more member states. His answer to the question, “What do you mean by ‘directly’?” was that once the EU has acceded to the convention, it will be possible for the EU itself to be the respondent and to defend claims in its own name. When we asked how accession will reduce the risk of divergence and ensure consistency between human rights case law, Strasbourg and Luxembourg when article 52(3) of the charter specifically allows human rights law to provide “more extensive protection” than the ECHR—my hon. and learned Friend the Member for Sleaford and North Hykeham referred to that—we were told that the EU must have regard to Strasbourg jurisprudence.
Our problem over and over again is that the answers that we get are a further extension of the principles that move us away from common law and precedent, and that instead absorb us into a system of law, judgments and courts that operate on abstract principles. It is as simple as that. That is the key question. When there is a divergence between the two Courts, those problems will become more conflated and confused.
Another question was how the EU autonomous legal order will be preserved in light of European Court of Justice opinions in certain cases, which I will not go into in detail. In a nutshell, we are grateful for the Minister’s replies, which are included in the European Scrutiny Committee’s report so that anybody who wants to read them can do so. I quite understand that those who have come into the Chamber very recently did not hear the arguments advanced by my hon. Friend the Member for Daventry and the specific issues that he raised.
Kwasi Kwarteng
If the remarks of my hon. Friend the Member for Daventry (Chris Heaton-Harris) were so fundamental, why did he not press his amendments to a Division?
Mr Cash
The short answer is that my hon. Friend the Member for Daventry did not do so because he had dealt with the questions that needed to be dealt with in relation to those amendments. I am concerned with the broader issue of the relationship between the European Court of Justice and the European Court of Human Rights in Strasbourg. That is the principal question in a clause stand part debate, which is why I am dealing with it now. That ought to be of great concern to the House, which is why the ESC has produced a special report and why I have gone into the detail in this debate rather than in a debate on specific amendments.
Chris Bryant
It is a delight to agree with my hon. Friend. I do not think that she and I have ever agreed on anything before. That is perhaps a slight exaggeration; I think we agreed that a Labour Government were better than a Conservative one.
Many thanks for calling me to speak, Mr Evans. I think I have made my one point eight times now, and that will probably suffice.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Decisions under Article 352 of TFEU
The First Deputy Chairman of Ways and Means (Mr Nigel Evans)
With this it will be convenient to discuss the following:
Amendment 26, page 7, line 7, leave out subsections (5) to (7) and add—
‘(5) This subsection is complied with if—
(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to support a specified draft decision and is of the opinion that the decision relates only to one or more of the following purposes—
(i) to make provision equivalent to that made by a measure previously adopted under Article 352 of TFEU, where that previous measure was adopted following the commencement of section 8 of the European Union Act 2011 and the draft decision relating to that measure was approved by Act of Parliament;
(ii) to repeal existing measures adopted under Article 352 of TFEU;
(iii) to consolidate existing measures adopted under Article 352 of TFEU without any change of substance, where those existing measures were adopted following the commencement of section 8 of the European Union Act 2011 and the draft decisions relating to those measures were approved by Act of Parliament; and
(b) each House agrees to the motion without amendment.’.
Amendment 43, page 7, line 7, leave out subsections (5) to (7).
Clause stand part.
Mr Cash
The amendments have been tabled by my hon. Friend the Member for Daventry (Chris Heaton-Harris) and myself, as well as several other Members, including my hon. Friends the Members for Aldridge-Brownhills (Mr Shepherd), for Harwich and North Essex (Mr Jenkin), for Wellingborough (Mr Bone) and for Northampton South (Mr Binley), and the right hon. Member for Belfast North (Mr Dodds) of the Democratic Unionist party.
We are dealing with a very broad provision in the treaty known as article 352, which is generally described as a flexibility clause but which has an ancient and controversial history. Even back in the 1970s, before I came to the House, when I was practising law, I was discussing a very controversial provision known as article 308, and I shall tell hon. Members why. When, in our legal processes and legislative procedures we pass laws, we do so on the basis of what is stated in an Act of Parliament and we consider the words. Some of the remarks I made in the previous debate on clause 7 about abstract principles are related to this issue. Ordinary statutes, particularly in the field of administrative law, frequently make certain provisions after a whole series of propositions in different sections. Right at the end, there is often an expression such as, “And all such measures as may be regarded as reasonably necessary to carry out these functions,” but they are very carefully constrained by the administrative court, and the tests are quite significant. If there is a catch-all provision that has the effect of enlarging the existing treaty arrangements, it is incredibly important to make sure that what is included can be justified and has proper authority.
In the context of legislation that comes to the House and thereafter affects the daily lives of the electorate, we already know, for reasons that I do not need to enlarge on, that the manner in which legislation is implemented could, in a nutshell, be one or two lines or a paragraph in a treaty that are equivalent to an entire Act of Parliament. With that comes a whole process of interpretation that is different from our own, because it is not necessarily precise and because it looks at purposes—it has a purposive quality. Then there are provisions relating to subsidiarity that generally are not adhered to.
When we are dealing with a specific treaty and considering its wording and range, we should ask, when it becomes part of UK legislation through section 2 of the European Communities Act, as enforced by the courts and their system of interpretation, how far and to what extent it was anticipated that the legislation being spelt out, even in a treaty, would result in certain consequences in terms of the precise policies that will emerge from the process. It is incumbent on us to implement the law, under section 2, but at the same time there is a great degree of collateral within which the actual provisions in a treaty are brought into effect, and there is also their effect on the people to consider. In many instances, people could not reasonably have been expected to know exactly how that provision would turn out in policy.
I happen to be a bit of a traditionalist and I think that when we pass legislation it should be consistent with policy making, but sometimes I think that my hon. Friends—I say this with great respect to them—are not necessarily quite as conscious when considering such issues about the direct impact of it all on the electorate, or about the degree of discretion that we are giving both to the European Union and to Ministers in implementing these sorts of provisions.
What is the effect of article 352? I shall explain my concerns about the Bill in relation to that wide-ranging provision, and I shall quote from article 352. It is important to set that out, as it is the framework for my general concern. Article 352 states:
“If action by the Union should prove necessary”—
that is a big question; who says?—
“within the framework of the policies defined in the Treaties”—
which have an enormously wide ambit, including what they involve, their purpose, nature and interpretation—
“to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously”—
that is important—
“on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.”
The article continues:
“Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament”—
not Ministers, though they have the right to determine whether or not they will apply the unanimity rule.
There is then a provision stating that where subsidiarity arises,
“the Commission shall draw national Parliaments’ attention to proposals based on this Article.”
The article goes on to say that such measures shall not entail the harmonisation of member states’ laws or regulations where the treaties say that there should not be such harmonisation. Finally, it states—this is important—that the article cannot serve as a basis for attaining objectives relating to foreign and security policy, and it imposes certain restrictions consistent with limits set out in article 40 of the Treaty on European Union.
That is what article 352 states. It is a very wide provision. It is certainly subject to unanimity by the Council. I therefore assume that my right hon. Friend the Minister will assure us that the veto would be used, were the existing treaties—wide and deep as they are and effective as they are on our constituents—to be amplified by the use of that extremely wide power. I should mention that a few years ago the European Scrutiny Committee went over to see the Commission and its legal advisers. We had a full report on the provision in question, which at that time was described as article 308.
My amendments would knock out the provisions that would enlarge the Government’s capacity to bypass—I use this language carefully—the principles on which I assume Parliament would want to insist. Because of the ambit of the measure, we should ensure that it is used as tightly as possible.
Mr Lidington
I am grateful to my hon. Friends the Members for Stone (Mr Cash) and for Daventry (Chris Heaton-Harris) for the courteous and logical way in which they have set out their views and spoken to the amendments.
Clause 8 provides for the prior parliamentary approval of a decision by the Government to support future uses of article 352 of the treaty on the functioning of the European Union through an Act of Parliament, subject to certain defined exceptions. Article 352 can be used to adopt measures in order to attain one of the EU’s objectives where the existing treaties have not provided the specific legal base on which to do so.
The measures concerned are, as my hon. Friend the Member for Stone acknowledged fairly, subject to the British veto, require unanimity among all member states and must remain within the confines of the EU’s objectives. Nevertheless, because of its enabling nature, the use of article 352 of TFEU has led in the past—quite understandably, I happily concede—to concerns that it can be used to facilitate competence creep. It is an article in whose use the scrutiny Committees in both Houses have taken a great interest, and I am sure that that interest will continue.
In responding to my hon. Friends, I will start by saying that the use of article 352 is now subject to much greater constraints than it was prior to the entry into force of the Lisbon treaty. In particular, it must be read in conjunction with declarations 41 and 42, annexed to that treaty. They set out four criteria that govern the application of the article. First, article 352
“cannot serve as a basis for widening the scope of Union powers beyond the general framework created by the provisions of the Treaties as a whole and, in particular, by those that define the tasks and activities of the Union”.
It is also important to make the point that a fair number of those policy areas that in the past involved the use of article 352 have now, in the Lisbon treaty, specific treaty bases of their own. That means that in future it will not be possible to bring forward measures on the basis of article 352, because an alternative, defined and specific legal base will exist.
Let me illustrate that point to the Committee. Sanctions have been the subject of article 352 measures in the past, but we now have article 215(2) of the Lisbon treaty, which deals with measures to apply sanctions against natural or legal persons and groups of non-state entities. Similarly, articles 212 and 213 of the treaty on the functioning of the European Union make provision for measures of macro-economic assistance to third countries—again a policy area for which, before Lisbon, article 352 was used as the legal base.
Secondly, article 352 cannot be used as a basis for the adoption of provisions whose effect would in substance be to amend the treaties without following the procedure that they provide for that purpose. Thirdly, the article cannot be used to harmonise natural laws in cases where the treaties exclude such harmonisation. Fourthly, the article cannot be used to obtain objectives pertaining to the common foreign and security policy.
Mr Cash
I understand exactly what the Minister says, but I am sure he will concede that that is all without prejudice to the fact that the measure is an expansion of what is a very wide provision in itself. For example, on the point that he has just made, there is a self-amendment provision in the treaty. It is difficult in such debates to get right down to the nuts and bolts, but basically this is a problem of an expanding treaty provision that was widely construed and widely drafted in the first place.
Mr Lidington
Given the history of the article’s use, I do not blame my hon. Friend for being properly sceptical and inquiring about how it might be used in future, but the Lisbon treaty now sets out explicit and specific treaty bases to govern policy areas and legislative measures that were previously the subject of article 352 authority, so it rules out the article’s future use to authorise measures in those categories.
Despite the greater restrictions on the use of article 352, and although it is not a ratchet clause under the definition that the Government have tried to apply consistently, given its significance we have decided that its use should be subject to greater parliamentary control. At the moment, as my hon. Friend acknowledges, its use is subject to the same parliamentary scrutiny as any other proposal for EU legislation, and the Bill makes it clear that this Government do not believe that that is sufficient, hence the inclusion of clause 9. The provisions will apply to proposals for which article 352 forms one part of the legal base and to proposals based on article 352 exclusively.
The article has been used in the past to authorise a range of important measures: to set up EU agencies such as the European Union Agency for Fundamental Rights; to set up things such as a community civil protection mechanism; and to enable member states to work together to mitigate damage from natural or man-made disasters. They were important decisions, and they exemplify exactly the sort of legislation that will require an Act of Parliament under this Bill before the United Kingdom is able to sign up to it.
I turn, however, to the exemptions. Where legislation based on article 352 is equivalent to a previous measure, prolongs or renews an existing measure or extends a previous measure in terms of its geographical scope, we do not think it right to require an Act of Parliament in order to agree to it—if the substance of the measure is identical to a previously agreed measure. If it is not identical, the measure should none the less be subjected to parliamentary approval by Act of Parliament. Similarly, we do not judge that an Act of Parliament is an appropriate requirement if the legislation simply repeals existing measures or consolidates, without adding to, existing measures made under that article. Any proposal for legislation based on that article, even if the Government consider that it is covered by one of the exemptions, would of course remain subject to the normal arrangements for the scrutiny of EU legislation and the powers of the two scrutiny Committees.
Mr Cash
I am happy to seek to withdraw the amendment in the circumstances, without prejudice to my concerns about the matter. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Clause 9
Approval required in connection with Title V of Part 3 of TFEU
Mr Clappison
I beg to move amendment 14, page 7, line 33, leave out from first ‘of’ to end of line 44 and insert
‘any existing or proposed measure under Title V of Part 3 of TFEU.’.
Mr Clappison
The hon. Lady has updated my information, which goes only as far as 30 November, by which point there had been six opt-ins. There have therefore been another two since, and they are coming along all the time. We heard evidence in the European Scrutiny Committee that 30 or 40 such opt-ins were due to take place. The EU has an ambitious programme in that regard—that is not an expression of opinion; it has admitted it. I shall deal with that later.
The hon. Lady is absolutely right that some of the opt-ins are on important points, and I shall come to one or two of them that I experienced under the previous procedure. I should like to ask the Minister how many of the provisions that we have opted in to since the present Government came to power would have been covered by the procedures in clause 9. I fully accept that those procedures are an improvement on the current situation, but I should like to know how well they cover the ground.
As the hon. Lady said, some of the opt-ins have been significant. I wish to mention two in particular—they were debated a little yesterday, so I will not take the Committee over the same ground. They are the European investigation order, which received practically no scrutiny in the House and on which we had no opportunity for a vote, and the draft directive on the right to information, which was also very important. We had a little more scrutiny of it, but no real opportunity for a vote unless one was prepared to trigger a deferred Division.
Under successive Governments, the UK has been very careful and vigilant about permitting the EU to deal with the so-called area of freedom, security and justice, which is dealt with in clause 9. That goes back to pre-Maastricht days, when such matters were dealt with on the basis first of informal co-operation, and then of slightly more formal co-operation, between Home Affairs Ministers. They were not dealt with as part of the treaties or Community institutions—Home Affairs Ministers simply met to co-operate as such.
The Maastricht treaty put that on a more formal basis with what was described as the justice and home affairs pillar, which was the third pillar of the treaty. The first pillar was the old matters within the treaty—the single market, fisheries and agricultural policy, and all the rest of it—and the second was common foreign security policy.
One or two hon. Members who are in the Chamber now were in the House at the time of that treaty, and there was much debate on the justice and home affairs pillar. We were assured—I remember being given a solemn assurance by an authoritative figure in the Government of the time—that the treaty settled the problem as far as justice and home affairs were concerned, that we need not worry about home affairs coming within the purview of the Community method and Community institutions, and that they were being kept separate. The same applied to the common foreign security policy. The implication was that the pillars in the treaty would stand for ever, and that they were all the protection and assurance we needed. I am reluctant to say this but I have heard similar claims in respect of many other so-called safeguards since then, including in the course of this debate.
Mr Clappison
I am afraid that I was credulous. We were perhaps willing to believe and wanted to believe what we were told. We knew that it was right for the UK not to come within such matters in the EU so that we did not gradually integrate into a superstate or a federal united states of Europe. Many are still worried about that and we wanted to avoid it, and we thought the pillars were the answer.
Mr Clappison
Notwithstanding all the assurances, such as the ones that we just heard from the hon. Member for Cheltenham (Martin Horwood), about the safeguards that are in place and despite all that we have been told over the years, under the treaty of Lisbon judicial and home affairs were planted fairly and squarely in the Community institutions and method, under what was the old first pillar, and subject to the ECJ and all the other EU institutions.
Mr Cash
The hon. Member for Cheltenham mentioned the European Scrutiny Committee, so may I say that the investigative order is still subject to scrutiny? He may be assured that we will follow every step, but we have no confidence in that part of the coalition that voted for all these arrangements under the Lisbon treaty—by that, I do not mean the Scrutiny Committee because I am talking about myself.
Mr Clappison
To be fair to the hon. Member for Cheltenham, he has an honourable and consistent approach to these matters which has a lot of appeal in the country. He is in favour of a more integrated Europe and of expanding the competences of the EU in co-operation with Europe. That is an honourable point of view to take. I take a slightly different view, but I respect him for his views. However, I would point out to him that of all the safeguards that have been mentioned, the one that seems to have been most satisfactory—it is possibly the only one—is the opt-out. When one surveys the history of this country’s participation in the EU, the areas in which people take most satisfaction are those from which we opted out, foremost among which is the single European currency. Some people say that that was one of the greatest achievements of our European policy. All the things that we have gone along with are the subject of great dissatisfaction.
Mr Raab
I thank the hon. Gentleman for that intervention and I agree. Indeed, senior members of the judiciary have said the same thing. The Lord Chief Justice recently gave a very informative speech saying that Britain no longer seems to be the champion of the common law. The ever-increasing move towards European integration in this area undermines that. Any proposed opt-in to justice and home affairs legislation, which goes to the very heart of our laws, liberties and way of life, must first be subject to proper oversight by and the approval of the House.
Mr Cash
I congratulate my hon. Friends the Members for Hertsmere (Mr Clappison), for Daventry (Chris Heaton-Harris) and for Esher and Walton (Mr Raab) on their speeches.
After 26 years of scrutinising treaties of one kind or another, sometimes tabling as many as 120 or 140 amendments, debating them in detail and listening to the arguments put forward by Government spokesmen, who say, first, for example, that we have reached the high water mark, and then that the measure is not what some people fear, perhaps it is inevitable that I have developed a certain resistance to the assumption that what we hear from the Front Bench will necessarily occur—I hope that is a nice way of putting it—and that I have become if not cynical, which would be an unfair word, at least uncertain about the consequences that subsequent events may produce.
In other words, we do not get what it says on the tin, or necessarily what we are told we are likely to get. I am very sceptical, not just Eurosceptic. I question not the honesty of individuals, but the accuracy of their predictions. I therefore believe that this set of measures, as has been amply described by my hon. Friend the Member for Hertsmere and others in this debate, is hugely important, although not more important than any of the other provisions that are part of a continual stream of acquiescence in European integration.
Where the provisions speak of not allowing measures to go through by way of opt-in, by imposing the requirement for some kind of parliamentary approval, I am well aware that we table amendments, we argue the case, we have a European scrutiny process, we go through it in detail, it has been universally applauded by Ministers and people throughout the land—
Mr Cash
Except the BBC, as my hon. Friend says, because it has not given any attention to the legislation.
The process has received a great deal of enthusiastic support, except when it comes to the votes. For all the flattering remarks made periodically about the members of the Committee and dedication and determination that they have applied, nothing happens. We do not get any of our amendments through and the Chamber is virtually empty. There is one assiduous Member on the Opposition Back Benches. I pay tribute to the hon. Member for Birmingham, Edgbaston (Ms Stuart). She has the seat which, I think, used to be Birmingham, Central in the 1880s. She was not around at the time, but she is carrying forward a fine tradition of ensuring proper scrutiny. Her predecessors in that seat were assiduous in ensuring that the interests of the people of Birmingham were well looked after. I pay tribute to her not only for the fact that she is here today on her own on the Opposition Back Benches, but that she is taking an active part.
Ms Gisela Stuart
I have no idea who held the seat in the 19th century, but I am encouraged, on matters European, that someone born near Munich now has Neville Chamberlain’s old seat.
Mr Cash
That is an interesting insight. However, I shall not follow the hon. Lady down that route as it would take me into area in which I have a great deal of interest. The hon. Lady tempts me, but she will not succeed on this occasion.
I return to my concerns. I do not mean this as personal criticism of the Whips. They have a job to do. They are told what to do. It is part of a policy, and the question is whether we want this set of provisions on family law, criminal procedure, serious crime with cross-border dimensions and so on to be implemented at all. The problem we have relates to a decision whether to opt in. We should not be contemplating it. That is the problem. With great respect to my hon. Friends, I am not criticising; I am simply making a point.
Mr Cash
Yes, and civil. Let us not get carried away by a few bits of paper and a few words in a Bill. They say that there will be restraint by way of approvals given by the House, but we know the realities. In relation to the opt-in on the investigative order—I think it was on 15 June, shortly after the general election—it can fairly be said that the Minister believed that she had to make that decision because, I think I am right in saying, there was a three-month period within which the decision had to be made. Perhaps there was some justification for the fact that she had to make the decision, but why did she make the decision to opt in? Why did she not make the decision not to opt in? That is my concern.
I plead with hon. Members not to be taken in by the effusions of reservation that emerge in letters, statements and the Bill. Right at the heart of this is the real question of whether we will end up with more Europeanisation of these matters, and the answer, emphatically, is yes.
Chris Heaton-Harris
I am sure that my hon. Friend is aware of the findings of the German federal constitutional court, which protects these matters for that country. In one judgment it said:
“Securing legal peace by the administration of criminal law has always been a central duty of state authority…To what extent and in what areas a polity uses exactly the means of criminal law as an instrument of social control is a fundamental decision. By criminal law, a legal community gives itself a code of conduct that is anchored in its values, whose violation is, according to the shared convictions on law, regarded as so grievous and unacceptable for social existence in the community that it requires punishment.”
It is desperately trying to protects its laws as well.
Mr Cash
I am so glad to hear that. I was not precisely aware of that part of the judgment, but my hon. Friend has made an important and helpful comment. The argument is right, and it is by dint of the most awful experience in Germany that it has come to these conclusions over an extended period since 1945. It is vigilant about these matters because it does not want ever again to find itself in circumstances, by virtue of a lack of democracy, when Hitler ran Germany. I have an absolute belief in the democratic instincts and principles of the British people, which have been born out of fighting not only that very Germany, but previous wars, right the way back to at least the 17th century. We have built up a democratic system in which we decide what the legislation should be, and we give it careful consideration. We need some parliamentary reform. We are being given the impression that in relation to these matters we will be able to retain our criminal system, but unfortunately, because of the Whip system and the whole direction of Europeanisation, that will be removed by what will happen in practice. As helpful as all these procedures are in indicating the direction in which they might like to go in certain circumstances, I fear that we will have many opt-ins and that, in practice, the proposed procedures will be applied and the Whips will ensure that the measures go through.
I will give the European investigation order as an example. It is still subject to European scrutiny and there will be a debate on it—I cannot remember when—despite the fact that it was decided on 15 June last year. That is because the European Scrutiny Committee had not been set up by that time, but the rules still applied to that order. There will be a debate on that matter, but when it is debated, which in effect is the same kind of thing that the Minister refers to about parliamentary approval, up to a point, there will no doubt be a take-note motion—I cannot remember the precise motion— before the European Committee. The reality is that not once in the 26 years I have watched these matters has a decision of a European Committee not to take note, following a vote that went against a Minister, not been reversed on the Floor of the House by the use of the Whips. Why should I be confident that—
Mr Clappison
My hon. Friend has made some powerful points that are entirely borne out by my much lesser experience of the European scrutiny system. In the case of the European right to information order, which is another opt-in, the most we can do is vote against it in the relevant European Committee so that it comes back for a vote on the Floor of the House, but that is merely a deferred Division on whether to take note of the document. We do not have the opportunity to say no to the opt-in. Is that his experience? We must have that option in the future if the Minister is to make good the promise, made in the statement of 20 January, that we will have the opportunity in a vote on the Floor of the House to say no to an opt-in.
Mr Cash
That is such a good example. In fact, I was in that debate with my hon. Friend—I was unable to vote in the Committee but took part in the proceedings. The reality is that that is how the system works in practice. This debate is about criminal law, but it is the same for everything else in the Bill. All the treaties, including all the laws, the entire encyclopaedia, all the work that is done in all the Departments and cross-departmental work—the whole country—are being run by a process of continuous European integration. The question is whether it is good for us or not. It is as simple as that, and that is a matter for us to judge.
However, because of the way policy is made, and with the help of the coalition, we are told that the Government think it is good for us. I do not agree, and I think that there are many other Members, and certainly many more people outside, who agree with what I have just said. Although the debates have been conducted with great courtesy and a great deal of substance on both sides of the argument, the real question is about what has happened. The short answer is that the Bill will go through and that we will put up a fight again in another motion under the arrangements proposed in clause 9, but in practice the process I have described will continue to happen.
The First Deputy Chairman
Order. The hon. Lady’s comments are going much wider than the amendments currently before us. I believe that there is sufficient meat in the amendments.
Mr Cash
I am grateful for that, Mr Evans, because otherwise the hon. Lady might have tempted me yet again. She knows my soft point, and she knows very well that it would not take me long to get going on that issue, either. But, she is right.
I have tabled a number of amendments, but I do not intend to press them to a vote, because we have had a thoroughly good debate, and I, like my hon. Friend the Member for Hertsmere, think that further consultation between the Minister, his officials, the European Scrutiny Committee and our Clerks might help to ensure that we get the maximum out of the provisions, even if they do not really measure up.
In any case, we know what happens in our votes; we have watched them now for about a week. On one occasion, we reached 45 genuine—as I call them— abstentions. By the way, Mr Evans, your name appeared on one list, but I said, “No, he’s Chairman of Ways and Means; this is not somebody you can count in.” Anyway, on parliamentary sovereignty we had between 45 and 50 such abstentions, which is quite a lot, but it is not anything like as many as the number of Members who rather agree with us in the broadest sense. I shall not go down that route, but what happens in votes is not very edifying. We do not win votes, because people are being told to vote in a way that is inconsistent with what they think, and that is another democratic problem.
Amendments 99 and 98 are mischievous, simply because they were tabled only to demonstrate my concern, which I have just raised, that opt-ins should not be allowed under any circumstances. On amendment 47, however, regarding the harmonisation of criminal offences and sanctions, my hon. Friends the Members for Esher and Walton, for Hertsmere and for Daventry are right. I am reluctant to adopt a default position, but for the purposes of debate I want to get out into the open something that concerns me, because the harmonisation of criminal offences and sanctions, on which I dare say books could be written, ought to be as restricted as possible.
Article 83(2) of TFEU, as I state in amendment 47,
“permits the establishment by directive of minimum rules with regard to the definition of criminal offences and sanctions in an area subject to harmonisation measures by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question.”
In a nutshell, I should like that to be one of those measures—from the written statement to which the Minister has referred—that ought to be discussed properly.
Let us think about what the harmonisation of criminal offences and sanctions affects and what its consequences are for the people whom we are elected to represent. If I cannot win the vote on my desire to throw out the whole measure, my minimum default position, however cynical and unhappy I am about opt-ins anyway, is to attempt to include it in the arrangements that the Government have provided.
Those are my thoughts on this group of amendments and on my amendments. If I sound a little concerned about them, I hope that Members will understand. As my hon. Friend the Member for Esher and Walton said, I see the provision under discussion as an enormous step. I am not sure that it is beneficial, because it assumes that there will be opt-ins. There are 30 or 40 of them, and there have already been eight in the past few months. The trend exists, and I do not see anything holding back the tsunami. Indeed, I see the tsunami being built up, and that is not in the interests of the democratic principles by which this House is elected.
Charlie Elphicke (Dover) (Con)
My hon. Friend the Member for Stone (Mr Cash) is much concerned about Members from all parts of the House being under the control of the Whips. For my part, I would like to say how much I agree with—
Mr Lidington
My hon. Friend puts his point trenchantly. I am not going to make any secret of the fact that the handling of European policy, and in particular on justice and home affairs, has been one of the most delicate issues for the coalition. There have had to be compromises on both sides to get the package of measures that we are including in the Bill and to shape the general policy that we are pursuing in respect of the European Union.
Mr Lidington
If my hon. Friend will forgive me, I would like to answer one hon. Friend before I give way to another one.
If my hon. Friend the Member for Hertsmere looks back to the debates on the Lisbon treaty, he will remember that he and I walked through the same Lobby, day after day, in opposition to that treaty. My recollection is that we had at least one day when we talked entirely about justice and home affairs matters. He knows the view that I took as a Front Bencher in a Conservative Opposition. I would much rather be either a member of or supporting a Conservative-Liberal Democrat coalition than spend another Parliament sitting fruitlessly in opposition, seeing measures being taken through the House to which I was vehemently opposed but which I was powerless to stop.
Mr Cash
My right hon. Friend is getting on to a very sensitive point, and I quite understand the sensitivities involved. When I wrote to my right hon. Friend the Prime Minister on 10 May last year about the coalition agreement, I specifically stated that, if there were to be a coalition—I had made it clear that I would have preferred a minority Government—it was essential that the Liberal Democrats should at least be required to abstain on matters relating to the European Union, for all the reasons that my hon. Friend the Member for Hertsmere (Mr Clappison) has just given. That is the problem, and we are now finding ourselves in an impossible dilemma. In fact, I would say that the situation is untenable.
Mr Lidington
I disagree with my hon. Friend’s statement either that we face an impossible dilemma or that the situation is untenable. We have a situation in which two political parties with differences of perspective and tradition on a number of issues are finding a way in which to work together in the interests of the nation as a whole. I think that the coalition is providing stable government. It is new in recent British political experience, but I find that it is hugely welcomed by many people of all political persuasions and no strong political persuasion.
Mr Jenkin
Amendments 82, 83 and 84 concern what the Minister set out in a statement last week, in which he described the arrangements for the Government to give formal notification of whether they wished the UK to opt out of certain justice and home affairs matters by 31 July 2014. He made it clear in the statement—I think this is welcome—that the Government intend to allow the House of Commons and the other place to table a formal resolution to approve or disapprove of the action the Government take in these matters.
While we are listening to this debate, it is worth reminding ourselves of the magnitude of what we are talking about: a complete rearrangement of the civil and criminal legal system of our country that will move the whole civil and criminal system on to an entirely new basis. I hear what my hon. Friend the Minister says about the number of advocates-general and about maintaining four judges in the European Court of Justice who represent common law jurisdictions, but that is a completely meaningless reassurance in the face of all the other judges and the history of the jurisprudence of the European Court of Justice, which simply is not interested in the common law basis of the jurisdictions of its member states.
Having fought against the Lisbon treaty in principle and most particularly on the basis of its potential to interfere in the criminal and civil law of this country, it is astonishing that the Government, since the election, have, for example, approved the directive establishing the European investigation order. Let us be clear: that allows another member state to oblige the United Kingdom to carry out almost any investigative action in the UK, including searching a house, intercepting telephone calls and obtaining DNA for the purpose of criminal proceedings in the requesting member state. The UK has supported the directive on the right to interpretation and translation of criminal proceedings, ceding jurisdiction in that area to the European Court of Justice. This all happened before the European Scrutiny Committee was sitting, so it was all unscrutinised by this House. Any weasel words from the Government about strengthening the scrutiny of the House of Commons should carry a health warning.
The Government have decided to opt in to the Council decision on the conclusion of an agreement between the European Union and Georgia on the readmission of persons residing without authorisation, which makes binding on the UK as a matter of European Community law an international agreement between the EU and Georgia and means that the UK cannot conclude its own readmission agreement with Georgia, should it wish to do so. I just point out that had any of those decisions been in an international treaty outside the European Union’s jurisdiction, they would have required an Act of Parliament, but these things are done by the stroke of a Minister’s pen under the powers in the European Communities Act 1972.
Mr Cash
I am sure that my hon. Friend will recall what the Minister said about the European Affairs Committee of the Cabinet, and the fact that we have two thirds Conservatives and one third Liberal Democrats. For practical purposes, there cannot be a vote; otherwise, if we were to comply with our manifesto commitments, we would win the vote every time. It must be, therefore, that the Government are willing to agree with the Liberal Democrats’ proposals, which makes it even worse.
Mr Jenkin
I thought the exchanges between the two Front Benchers about the real nature of the coalition agreement were very revealing. We have all known about this from the minute that the coalition agreement was first mooted. That is why I was one of the newly elected Members who went to see the then Leader of the Opposition, just after the election, and said, “Do not do this; let us have another election in short order so that we can deliver our mandate and our promises to the British people.” We knew that we were being bound into an arrangement that would mean having to swap our obligations to our electors—let us face it, handing criminal jurisdiction over to the European Union is not exactly a popular thing to do—for a mess of pottage: a compromise with the Liberal Democrats. The Deputy Prime Minister took great interest in these matters, particularly justice and home affairs, when he worked for the European Commission and I understand that he is personally extremely committed to the creation of a federalist criminal justice legal order as part of the state building of the European Union. We are now actively participating in that.
Mr Jenkin
My hon. Friend is absolutely right. We are going into this with our eyes wide open, except that this Bill has its eyes wide shut. The Bill pretends that there is no decision to be made between now and 2014 about this momentous change to our criminal justice system and the way the law is conducted in this country—to the protection that Parliament can currently afford to UK citizens but is now already being eroded.
So I have tabled a series of amendments. There are some choices for the Minister, and I would be interested to know which he prefers. Amendment 82 would mean that the Government have to gain the approval of a referendum before they decide that the UK should not opt out of these laws. Amendment 83 would require the approval of at least an Act of Parliament for the Government to do so. Amendment 84 is quite modest; it would require an Act of Parliament before the Government could opt back in to any of the laws that had ceased to apply following the 2014 opt-out decision.
This is a question of more or less power being transferred to the EU, which would fundamentally alter our criminal justice system, but it is being left entirely up to Ministers.
Mr Cash
In the light of my hon. Friend’s intelligent observations, does he also agree that the process of Europeanisation, not merely by default, but by activism, despite our manifesto and despite the common sense and the wishes of the people at large, who vote for us by the way, will mean that we increasingly hand ourselves over to an entity, a European Union, not Europe, which is manifestly failing on all fronts, with protest, riots, the whole place imploding—Greece, Spain, Portugal, Italy and Ireland? The whole situation is moving entirely in the wrong direction. That is the big landscape, and that is where the Bill fails.
Mr Jenkin
I fully agree with my hon. Friend, but I will try to avoid being drawn into that. The great skill in Committee debates is to avoid making the same speech over and over again. However, I will be guilty of repeating something that I have said before, which is that the EU is made up of democracies, but it is not itself a democracy. It is anything but a democracy; it is a bureaucracy. It has some institutions that purport to be democratic, but they have only the most tenuous link with the real aspirations of the peoples they seek to serve. The unaccountability of the most powerful institutions of the EU, namely the Commission and the European Court of Justice, is legendary. They spend money like water and they have yet to have their accounts formally approved by the Court of Auditors for the last 14 years. That is how unaccountable the institutions are to which we are handing over the jurisdiction of our criminal law.
That is why I am mystified by the Government’s complacency, except, as the Minister has now admitted, for that fact that we traded away our principles for power. Moreover, we did that not just in the national interest for a short period, but for five years. I am pretty certain that before five years have passed this country will be crying out for a general election. When a country finishes up with a Government who have no mandate, except an agreement that was invented between two political parties, we are in a dangerous situation. It was not for nothing that Benjamin Disraeli said that England does not love coalitions; if a party is an organised hypocrisy, I dread to think what the correct term for a coalition should be, except as an expedient in an emergency.