It is helpful to have this opportunity to develop further the points that my right hon. Friend the Deputy Prime Minister, my hon. Friend the Minister of State and I made yesterday in immediate response to the text of the Factortame judgment.
Let me first deal with the court's judgment. It is a stage, albeit an important one, in the action brought in the divisional court against Her Majesty's Government for damages in respect of the losses that Spanish and other owners of fishing vessels incurred as a result of their exclusion from the UK register and consequent inability to fish.
The divisional court sought guidance from the European Court, and the latter has now ruled that member states are obliged to make good damage caused to individuals by breaches of Community law attributable to the state where the national legislature was responsible for the breach in question and where the breach is sufficiently serious. Importantly, the court also ruled that it is for national courts to decide whether such a breach has occurred and what damages are available.
There has been speculation about the damages that might be payable. It is far too early to comment, because it is for those involved—the Factortame applicants—to decide whether to proceed with their claim and, if so, to substantiate any claim to the full.
The court's judgments in this and the earlier Factortame cases have highlighted the fact that quotas allocated to each member state do not always benefit the fishing communities of that member state. That is because the eligibility for quotas and their administration by member states have to take account of general treaty provisions—for example, on the right of establishment and the freedom of movement. That has certainly undermined the benefit that the United Kingdom fishing industry has been able to secure from the fishing opportunities available to it under the common fisheries policy.
It is clear that we should not go on as we are. That is why both the Deputy Prime Minister and I explained to the House yesterday that the Government are looking at all the options. They include pursuing treaty or other changes at the intergovernmental conference. We want to achieve measures that enable member states to ensure that fishing opportunities arising from their national quota provide real benefits to their own fishing communities and not to others.
Does the Minister acknowledge that there is deep anger throughout our fishing communities at this judgment? Surely he is aware that it will be very hard indeed to persuade British taxpayers that it is a justifiable use of their money. Is not this another demonstration of the indefensible workings of the common fisheries policy?
May I put two specific questions to the Minister? First, does he now accept that the relevant provisions in the Merchant Shipping Act 1988 were ill advised? It is true that we all wanted the legislation to succeed in preventing quota hopping—[Interruption.] That is what we wanted, but let me ask the Minister a legitimate question. Did any of the advice that he received—and the Government surely have access to a great deal of advice—give the slightest indication that we could be liable for compensation of this nature? [Interruption.] That is a perfectly reasonable question.
Secondly, we welcome the Government's declared intention of raising the matter at the forthcoming European intergovernmental conference, but can the Minister confirm that by that he means securing an amendment to the treaty, and that such an amendment will require unanimity—that one member state, Spain, for example, will be able to block it?
Finally, may I point out that there is great demoralisation throughout our fishing communities, to which this incident can only add? That demoralisation should be a matter of great concern to the House of Commons. We cannot go on like this.
The trouble is that the hon. Gentleman does go on like this. I interpret his response as a pretty ungracious gesture of support for the Government, but in so far as he did support our decision, I welcome that support. As I have made plain, we shall do what we can to ensure that changes are made in the treaty if necessary, so that quota hoppers cannot take advantage of national quotas.
The hon. Gentleman criticised the 1988 Act. Let me tell him that the hon. Member for Aberdeen, North (Mr. Hughes), who was the Opposition spokesman at the time, strongly endorsed the Act. The hon. Gentleman spoke at length about the failure of the common fisheries policy, and about quota hopping in particular. His observations would have more force if his party had even mentioned the common fisheries policy in its 1992 election manifesto—or, for that matter, in its 1994 Euro-manifesto.
I warmly welcome what my right hon. and learned Friend and the Government are trying to do, especially in the context of the forthcoming intergovernmental conference. Will he confirm that this step represents a real turning point in our dealings with Europe and, indeed, our handling of the common fisheries policy?
This dreadful, diabolical decision by the European Court—along with all that led up to it—has rightly enraged our fishermen. It has also united hon. Members who take different views on Europe, including Euro-sceptics in my party and people such as me who regard themselves as pragmatic Europeans. Will my right hon. and learned Friend also confirm that we have one tremendous fight on our hands if we are to bring about the necessary changes? Will he assure us that the move has the backing of the Prime Minister and the whole Government, and that the Government are determined to see it through in the interest of justice for our fishing industry?
I am grateful for my hon. Friend's support, and for the thought that he has devoted to the problem over many years. He has frequently spoken of the need to deal with quota hopping by means of treaty changes; as he will note, we are responding to his suggestions.
My hon. Friend is right in saying that the negotiations will be difficult: there is not a united view in the Council. Let me give a specific answer to his question, however. The policy has indeed been strongly endorsed by my right hon. Friend the Prime Minister, as my right hon. Friend the Deputy Prime Minister confirmed yesterday.
Of course the Labour party backed the Merchant Shipping Act 1988, and it was right to do so. What now concerns us is that it appears that Spanish owners, or other owners for that matter, can improperly sue us for loss of trade. Although there is shared anger among hon. Members on both sides of the House about what has happened, I am not sanguine about the Government's chances of changing things at the IGC or elsewhere as, the last time the Spanish were involved in fishing discussions, the Government were weak-kneed, caved in and gave the Spanish early access to Irish waters. Will the Minister give a categorical assurance that, when discussions take place, the Government will not trade off some bargain to avoid such disputes, by giving the Spanish further access?
I am glad that the hon. Gentleman did not try to dissociate himself from the 1988 legislation, because I have the copies of Hansard here in which he gave vigorous support to that legislation. The Labour party would have cut a better figure had it chosen just to mention the common fisheries policy in either its 1992 or its 1994 manifesto. Labour Members are Johnnies come lately to this business.
Does my right hon. and learned Friend agree that the cause of this deplorable state of affairs is not so much that the Government tried to do something about it with the Merchant Shipping Act, but that we have the phrase, "The seas are a common resource, open to all"? Only when we get rid of that can we begin to reassert the sovereignty of British fishing waters, and we need to do it quickly while there is still some industry left to save.
I am grateful to my hon. Friend for his support for what the Government have announced. He is right to draw attention, by implication, to the importance of safeguarding the six and 12-mile limits, and that is our intention. The court has come to its judgment as a consequence not just of the common fisheries policy, but of the general treaty provisions that provide for other member state nationals to set up business in the United Kingdom. It is the overlap between the CFP and the treaty of Rome, and not the Single European Act, which has given particular difficulty in this case.
I accept that we also supported the Merchant Shipping Act 1988, and I agree with the Minister that the Factortame judgment is inconsistent with the principle of relative stability that is at the heart of the common fisheries policy. I welcome the fact that he intends to take the matter to the IGC. What proposals does he hope to make there, which the British Government could not have made when we had the European Union presidency in 1992, when the CFP was under review? Has he considered what other countries have done? Any Spanish vessel with a British licence has it only because a British skipper has sold it. Why do other countries not have the same problem? Given that the veto will apply to Spain as well as to Britain, does he believe that a renegotiation of the CFP will be easier or more difficult with the continuation of the veto?
I have already said that Labour Members are Johnnies come lately to this business. I have to say—although it gives me pleasure to do so—that the Liberal Democrats can be accused of being Johnnies come lately as well, because their 1992 manifesto and 1994 Euro-manifesto make no reference to the problems of quota hopping. They are simply opportunist in this matter. As to what we shall seek to do in the IGC, it is important for us to try to negotiate, within the context of the IGC, an agreement to the effect that there needs to be a close identity of interest between the ownership of the vessels that are taking advantage of national quotas and the country whose national quotas are being drawn on.
Is not the relevant issue at stake the power of the European Court of Justice to make laws superior to those of national Parliaments? Should we not amend the treaty in that respect? Is not the relevance of the Merchant Shipping Act 1988 the fact that it was passed precisely to counteract the judgment of the court, but that after the Factortame case it failed to do so?
I do not entirely agree with my hon. Friend. Two questions arise. The first relates to the judgment itself. If we put the Factortame question to one side for a moment, there is much in the judgment that we would welcome in the context of pursuing the single market, notably the fact that it enables nationals of member states whose rights are infringed by another member state's legislature to seek compensation for damage. I can identify a particular case—for example, the United Kingdom beef producers, who are adversely affected by the actions of the German Government or Lander. It is at least possible that they may have a claim as a result of the judgment, and that is a good thing. As for my hon. Friend's other question, the problem lies essentially not with the European Court, but with the treaty. The court is there to interpret the treaty, so if we are to remedy the problem, we must seek to change the treaty itself, either by amendment or by protocol.
As I am the son of a fisherman and a fishergirl, I hope that the Minister will not accuse me of being a Johnny come lately to the fishing industry. Successive Administrations, with the common fisheries policy, are largely to blame for the parlous condition of the British fishing fleet. May I offer the Minister a practical suggestion? Will he give the House an assurance that at the IGC he will argue for the freedom of establishment to be circumscribed and the concept of relative stability to be emphasised? I hope that he can get across to his colleagues at the IGC and in the Council of Fisheries Ministers the fact that relative stability would help our fishing industry enormously. That is what the fishing industry argued for in 1987.
I am not accusing the hon. Gentleman as an individual of being a Johnny come lately. I accept that he has a long-standing interest in the matter. However, I accuse his party of being Johnnies come lately, and for good reasons.
The hon. Gentleman is right that relative stability needs to be emphasised, and we take every opportunity, such as that offered by the interim review of 1992, to do just that. As for what we seek to achieve within the IGC, obviously we must formulate our negotiating position against the background of what we are likely to get allies for. In broad terms, as I said, we seek to achieve a close relationship between ownership of the vessel and the country upon whose fishing quotas it draws. That is what we seek, although it represents another way of expressing the same thing, when we talk in terms of economic benefit. Clearly, there must be a close relationship between the vessels drawing on national quotas and the countries to which those quotas belong.
Does my right hon. and learned Friend agree that the Government will have no alternative but to pay compensation, funded by the British taxpayer, if the British courts find in the Spanish fishermen's favour? Does he agree that the decision is not untypical of decisions by the European Court, which consistently overrules the sovereignty of the House? I welcome his proposal to try to secure changes at the IGC, but will the Government be completely ruthless and threaten to veto everything else unless they get their way? But if they are not successful at the IGC, what will they do? Will we have to sit and watch our fishing industry die?
On compensation, as I said earlier, it is for the applicants to prove first that there is a breach, secondly that they have suffered loss, and thirdly the quantum of that loss. Until those three elements are proved, there is no liability to pay compensation. As for parliamentary sovereignty, I return to the central point: the court seeks to interpret treaty obligations. For that reason, if we are to be effective in achieving what we would like to achieve, we must seek to bring about change in the treaty itself.
The Minister must recognise that the European Court of Justice decision adds insult to injury in this country, especially affecting our fishermen. Furthermore, it illustrates the total humiliation of Parliament that we suffered when the Merchant Shipping Act 1988 was struck down by the European Court. We must be frank with ourselves and the country. It is no good the Minister saying that he can go to the IGC and plead with it to make amendments to the common fisheries policy. Whether it is decided by unanimity or by a qualified majority, there are overwhelmingly good reasons why other European countries should relish the common resource of British fishing. We shall therefore get nothing from that.
Will the Minister face that fact, get on to the real issue and be prepared to take any action, including the denunciation of the part of the treaty that affects our fishing, so that we can restore our self-respect and the control of our own resources?
I have a great regard for the right hon. Gentleman, whom I have known in this place for 19 years or thereabouts. I always have a high regard for what he says, but I am bound to say that I do not agree entirely with what he has just said. Of course, the negotiations will be tough. I certainly do not exclude the possibility that we shall be able to make alliances on the matter with other countries that also face the problem of quota hopping. We shall try to make such alliances on the issue.
I cannot commend to the right hon. Gentleman the policy of denouncing the common fisheries policy. [HON. MEMBERS: "Why?"] I am just going to say why. First, I do not think that it is achievable in real politics. [AN HON. MEMBER: "Of course it is."] Secondly, it is probably undesirable. For both those reasons, I am against it. Although all of us dislike the judgment in so far as it relates to the common fisheries policy—the Factortame situation—it has the advantage of promoting the single market, as I described to the hon. Member for Aberdeen, North.
How many more humiliations will our country have to face at the hands of the European Union before Her Majesty's Government face the reality of the common fisheries policy—that they have no hope at the forthcoming IGC of amending the treaty, because the other countries will not agree it? So long as European law has primacy over British law, there will not be remedy, even in our own courts. Will the Government therefore do the honest and proper thing and give notice at the IGC of our intention to withdraw from the common fisheries policy?
The negotiations will be tough—nobody tries to pretend otherwise—and it is possible that we shall not succeed. I am not trying to conceal that from the House. I shall certainly not start the negotiations on the assumption that we are bound to lose. That is not my opinion.
"Why not?" I hear from behind me. I shall say why not. We have an extremely good case to make. There is no doubt that quota hopping derogates from the principle of national quotas. That is an extremely good argument to make, and we shall make it vigorously.
Denouncing the common fisheries policy is an illusion. First, it would be almost impossible to achieve; secondly, we would have to make such concessions as to make it unlikely to be in our interests; and thirdly, we would be in a demandeur position in many bilateral negotiations, where we would want to try to trade access to other people's waters. In my view, people should not peddle such an illusion.
Has the Minister looked at the report of the Committee debate on the Merchant Shipping Bill on 18 February 1988. when both the hon. Member for Stretford (Mr. Lloyd) and I argued that the Government should not rely on a nationality requirement on ownership to stop the quota hoppers, but should impose a residential requirement on the crews of such vessels?
Does the right hon. and learned Gentleman have the humility to accept that not taking that advice might have been an expensive blunder? It has been expensive, not in terms of what the Spanish will get from the English courts, but in terms of the lost fishing opportunities for Scottish and English fishermen in the past five years. The Government are to call for treaty changes at the IGC. Why did they not do so five years ago, when the quota hoppers got back on the register and started pillaging the stocks once again? Why was the matter not a priority at that time?
That question is of the normal quality that I have come to expect from the hon. Gentleman. His principal claim is that we should have applied a crewing criterion, but that would have been manifestly illegal.
All hon. Members who have taken an interest in the fortunes of the British fishing industry will welcome my right hon. and learned Friend's commitment to seek treaty changes at the forthcoming IGC, and his decision will be applauded by the general public and by the fishing industry. When he meets our European partners at the IGC, will he stress that what is at stake is not just a vital British interest, but the supremacy of national Parliaments and the survival of the fishing stocks?
During the negotiations, my right hon. and hon. Friends will assert the importance of giving real effect to the concept of national quotas, which in my view is being abrogated by the practice of quota hoping. My hon. Friend the Member for Ludlow (Mr. Gill) asks me to recognise that there will be general applause for what I have said. Although I welcome general support, I particularly welcome his support.
The Minister referred to the Committee debates on the Merchant Shipping Bill in 1988, but he quoted selectively from them. Will he confirm that my hon. Friend the Member for Stretford (Mr. Lloyd) warned the Government on behalf of the Opposition that the provision would fall foul of European law? The Government were warned, but ignored that. Is not that why we have the present debacle?
I have not been quoting selectively. I have before me a copy of the Second Reading speech made by the hon. Gentleman who led for the Opposition—the hon. Member for Aberdeen, North—in which he made it plain that the Opposition gave us their wholehearted support and expressed the hope that the regulations would be introduced as soon as possible.
Through no fault of his own, my pright hon. and learned Friend is fast approaching a rock and a hard place. He must honour his obligations either to the European Union or to the people of this kingdom, but he cannot do both. In what way will he resolve the matter?
I am not such a pessimist as my hon. Friend. Quota hopping seems clearly to derogate from the principle of national quotas. Almost every hon. Member accepts that and, as it is a rational argument, there is a good chance that we shall get people outside the House to accept it also. We shall certainly do our utmost to achieve that highly desirable objective.
Is it any wonder that the British people are full of cynicism about the Government and about politics generally when an issue such as this stares them in the face? We are an island nation, surrounded by fish—and anyone can get the fish, bar the British. Fishermen have been chucked on the scrap heap. Why does not the Minister face up to the only realistic thing that can be done, and tell those tinpot people in the Common Market that we shall withdraw from the CFP? There could be some debris floating in the wake of that decision—we should leave the Spanish and the rest to clean it up.
The hon. Gentleman gets more eccentric with age. He has almost reached retirement age, and he should take his own advice and go as soon as possible.
As regards the hon. Gentleman's particular points, to start off with, he would like us to leave the common fisheries policy. I have already made the case for not doing so. In any event, there is a gulf, as there is between himself and no doubt many of the people in the Labour party, between him and those on the Labour Front Bench. They are riven top to bottom on the subject.
I served on the Standing Committee that considered the 1988 Act. Does my right hon. and learned Friend agree that it ill behoves the Liberal Democrats to lecture the Government today when they could hardly put in a full day's attendance on that Committee? Is not it a fact that we are no longer elected to the high court of Parliament? This House has been reduced to an annexe of Brussels, and it is a very sad day. It is frustrating our fishermen and the British people.
And that is why my hon. Friend supports so enthusiastically the policy position that I have just announced—that is, a desire and intent within the context of the IGC to renegotiate, if need be, the part of the treaty that would tackle the problem of quota hoppers.
But is not all this insecurity in the industry and the failure of Parliament and the Government properly to deal with Spanish access completely undermining confidence in the industry? So much so, that constituents of mine who are trawler owners are told when they approach the banks that they are no longer prepared to lend because they have no confidence in the industry. Should not Ministers be trying to restore some of the banks' confidence, so that trawler owners can look into the future with some hope?
It is perfectly true that there is a great deal of anxiety in the fishing industry, but the essential reason is the fact that fish stocks are falling and there are too many vessels chasing what there is in the water. That is the essential problem, and until it can be addressed satisfactorily—it will be extremely difficult to do so and it will certainly involve multinational action of many kinds—the hon. Gentlemen's constituents and his constituents' bankers will be lacking confidence.
I warmly welcome my right hon. and learned Friend's strong stand and efforts to resolve the issue. Does he accept that quota hoppers are fishing in our waters with our quota only because of a decision of the European Court, and now they want compensation on top of that? I think that he has the backing of the whole House to go to Europe and resolve the matter in the interests of our United Kingdom fisherman.
I am extremely grateful to my right hon. Friend for the support that he has just given. There are few people in the House who know more about fisheries policy than my right hon. Friend, who had a responsibility for that function for many years when in the Scottish Office. I find his support particularly welcome.
Why will the Minister not agree that he is quoting selectively from Hansard? It is a question not just of the Second Reading debate on the Merchant Shipping Bill in 1988, but of the Committee stage of the Merchant Shipping (Registration Etc.) Bill in 1993, when Conservative members along with other members of the Committee pressed the Government to deal with the Factortame case. The Minister could have dealt with it then.
I am bound to say that that is whingeing and whining of a particularly ungracious kind. I know that the Labour party is on the hook on this matter. The Opposition want us to accept that they have been treating the matter seriously, yet there was not a word about it in their 1992 manifesto or in their 1994 Euro-manifesto. I refuse to take them seriously, because they are not serious people.
Does my right hon. and learned Friend agree that this is not one of those things that the Foreign Office should see as some technical matter requiring a bit of deft footwork, to overcome a temporary problem? This is one of those watershed moments. My right hon. and learned Friend and the Fisheries Minister started off like bulldogs. Let us all hope that neither the Foreign Office nor the Commission will convert them into poodles. If they become poodles, the fishermen and others may demand that they take a visit to the vets, with a rather nasty outcome. My right hon. and learned Friend should say no, no, and no again, because the more unpopular he becomes in Brussels, the more popular he and our Fisheries Minister will become in this country. He should recognise this moment for what it is and dare to be popular.
My hon. Friend is right that this is not an occasion for subtle or diplomatic approaches. That is probably why I and my hon. Friend the Minister of State have charge of this business; we shall not be guilty of either.
Does the Minister agree that the root cause of the problem is that the common fisheries policy, as negotiated in the early 1980s, was not subject to unanimity, and that the matter was not discussed in Committee or at any other stage during the passage of the European Communities Act 1972? Moreover, Ministers of the Crown deliberately and designedly misinformed Members of both Houses, as was pointed out at the time by the late Lord Jay. The fact that we were delivering ourselves into the hands of qualified majority voting from that time was obscured from the British public and from our fishermen. If the Minister does not agree, will he look up the record and confirm what I have said, or let me know where I have made a mistake?
Is not the Factortame case yet another example of judges in the European Court of Justice and the European Court of Human Rights—and even our own judges—using their powers of interpretation to second-guess almost everything that the Government do? Is it not time for the House to send a clear message to the judges that the sovereign authority in this land is Parliament and no one else?
Speaking generally, the business of judges is to interpret treaties or Acts. It is not the business of judges, as a general proposition, to determine policy. Although the matter goes rather wide of the subject, I agree that where judges seek to determine policy rather than to interpret statute, they exceed the powers that the House expects them to discharge.
Is it not true that when an advocate resorts to bluster and insult, it usually means that he has a weak case? Will the Minister respond directly to a direct question: in relation to compensation, can he say directly whether the Cornish boats that were damaged in the so-called tuna war and claimed compensation from the Spanish authorities 18 months ago have or have not received full compensation?
That is a serious matter. I think that the hon. Gentleman refers to a claim for about £100,000. I raised it personally with the then Spanish Minister on several occasions. We have got an assurance that the Spanish Government will make a payment. I very much regret that we have not yet received it, although it was, of course, a socialist Government. Now that the socialist Government have been excluded from office, perhaps we shall receive rapid payment.
In a spirit of helpfulness, and as the whole House wishes to get behind his rhetoric about saying no to the judgment, may I suggest to my right hon. and learned Friend that, to send a serious message to both the Commission and our partners in Europe, we should put a one-clause Bill through Parliament, which blocks off access of the courts to the judgment? That will demonstrate to the courts and the European Community that we mean business when we go to the IGC. He will have full support for that.
That is an interesting proposition, but it might have the unfortunate effect of preventing British litigants from suing, for example, the German Government in the German courts.
Does my right hon. and learned Friend agree that the rule of law and the authority of any court flow partly from a broad public acceptance that the court is acting fairly and justly, and that, if any court makes manifestly unfair judgments too often, that court might begin to sow the seeds of its own destruction?
I think that my hon. Friend is probably right about the general proposition. However, I am not sure that I would apply it to this judgment. The fault lies not with the European Court, but with the treaty. Whatever else may be clear, the European Court must interpret the treaty and we can hardly blame it for doing so. That is why we are seeking changes.
If the Government lost a case before the Judicial Committee of the House of Lords, would my right hon. and learned Friend expect the Minister concerned to describe it publicly as "crazy" and the House of Commons to be up in arms, or would he expect a rather more respectful attitude to be adopted towards a judicial decision? Is it not clear from the attitude of the Minister, the House and the public that none of us accords to European law the same respect that we accord to domestic law? Is it not also clear that, in the end, we, as a nation, will disobey the laws of the European Union and that that will be part of the route towards a looser relationship between us and Europe?
My hon. Friend is being somewhat disingenuous. He and I have practised for years at the common law Bar and we have appeared before many judges—some wise and some foolish. When we received foolish judgments, he and I never hesitated to say so.