I beg to move, That the Bill be now read a Second time.
I had not expected to speak for an hour or two yet, but I am delighted to do so. I am also delighted to be, for the first time in 12 years, introducing into the House a Government Bill. It was in 1992 that I last moved a Government Bill. If the Government accept the Bill, which is apparently their policy now, it would save us all a great deal of time and trouble. We will come to the one clause on which, I expect, they will hang their objection.
I introduced an almost identical Bill as a ten-minute Bill in November. Chris Bryant spoke against it with passion and at length, although I imagine that in pursuit of his career he has now changed his views. The Government Whips whipped Labour Members to vote against that Bill and killed it off. This is the same Bill, and the Government's policy has changed to the point where this is what they say they intend to do, sooner or later. Far from the fox having been shot, he is now the king of the jungle, and when his head finally goes on the wall when the British public vote "No", it will be accompanied by the Prime Minister's head.
That is the nemesis for the Government's appallingly hypocritical policy of going along with everything the European Union proposes. The policy of never being isolated means that they never stand up for their rights, however right they think they are. We are seeing the culmination of that. The Government have performed not just a U-turn, but have spun an almost infinite number of times and ended up facing 180o from where they started.
I suspect that the reasons for that have nothing to do with the Prime Minister's desire to consult the peasants on what they think about the issue, but everything to do with electoral advantage—with removing the matter as an issue at the European elections and, more importantly, at the general election, in the same way as the commitment to allow a referendum on the euro meant that at the last election the Prime Minister was able to say, "This election isn't about the euro. You'll get a separate vote on that." He will now be able to say, "This election isn't about the European constitution. You'll get a separate vote on that."
Would the hon. Gentleman remind us of how he voted on the question whether there should be a referendum on the Single European Act? I know that he was not in the House during the Maastricht debate, but presumably he thinks that the Conservative Government were wrong to deny a referendum on Maastricht, too.
I shall come to that. One of my arguments is that at some point between the treaty of Rome in 1956 and the federal superstate to which I believe we are headed, there should be a referendum. The fact that there was not one at the time of Maastricht—I was not in the House and did not vote on it, though in my usual loyal way I would probably have voted with the Government of the day—reinforces rather than undermines the case for a referendum now. I also point out to the hon. Gentleman that there was a general election between the signing and adoption of the Maastricht treaty and the Bill ratifying it. They took place in different Parliaments. There was a general election in between, which alters the case.
The Government's proposed referendum has nothing to do with consulting the people; it is to do with saving the Prime Minister's skin. Perhaps he does admit to fundamental change. He would have to, given that he said on
"I do not believe it is necessary to have a referendum"— on an EU constitution—
"unless there is a fundamental change in the nature of the relationship between the member state and the European Union."—[Hansard, 29 October 2003; Vol. 412, c. 298.]
The fact that we are to have a referendum presumably means that the Prime Minister concedes that there is a fundamental change.
I would not go quite that far. I think that there is a significant change, and the fact that what is proposed is called a constitution introduces some legal points that I should like to explore. There has been a piecemeal collection of treaties that have advanced the position considerably during the past 48 years.
The Government have held 34 referendums so far. I am probably one of the few people who know that, as I had to count them up for my ten-minute Bill. Most of those have been held from the desire to do something positive or to give people a positive choice. This is the first to be held by the Government out of fear. That will come back to haunt them whatever they do on the issue, because they have got the fundamentals wrong and they do not have a policy that makes sense.
The question to be put in the referendum appears in the Bill. How many other referendum questions were included in legislation, and how many were devised through some other mechanism?
The hon. Gentleman makes an interesting point. In the case of the Scottish Parliament, this House decided on the powers of that Parliament, so the legislation enacted those powers. If the Government adopt the treaty establishing the European Union constitution at Dublin, or whenever it comes up, the House can only ratify it or not; it cannot amend it. The difference in the case of the other referendums that there have been is that the House was in a position to set the substance of the legislation on which the country was voting. In this case the question is simple: "Do you or do you not approve the ratification of the treaty establishing the European Union constitution?" I imagine that when the Government come forward with their Bill, they will pose a similar question.
Just to clarify this point, because I am not sure what the process will be, the question that the hon. Gentleman wants to be put to the British public is one that presumably he has devised and has put in the Bill. It is not as he just said; it is subtly different. It is:
"Should the United Kingdom be bound by the Treaty establishing a Constitution for the European Union?"
It could be argued that the way in which he has framed that question betrays his view of what the answer should be. Should we not be trying to devise a question that is a bit more neutral than that?
I am missing the hon. Gentleman's point. I would be perfectly happy in Committee to accept an amendment that made the question neutral. If the hon. Gentleman is saying that the question is not neutral and seeks a "No" vote, I would be perfectly happy to accept an amendment to achieve neutrality. At the end of the day, the Electoral Commission will have something to say about the nature of the question. I am sorry if I misunderstood the hon. Gentleman's first intervention.
If the treaty is adopted in June, the Government can set about this in two ways. They can combine ratification and the referendum in one Bill. They can set out the treaty in the Bill and then say that it will not be ratified unless and until there has been a referendum, and that Bill could go through the House. Alternatively, they could separate the matters into two Bills, and it would be possible to pass the referendum Bill and seek the referendum before even introducing the ratification Bill. The simplest way is probably to make the referendum a pre-condition for ratification and to have them in the same Bill, but the point that I was seeking to make is that the constitution itself, when it comes before the House, will not be amendable by us. We either have to accept it or reject it in total. Therefore, the legislation will be fairly simple, and it could go through Parliament fairly quickly.
My Bill calls for the referendum to be held within six months of the treaty being adopted, and I understand that that technically means the point at which it is agreed at the intergovernmental conference. There will then be a delay during which the full text is made available for signature, which usually happens a few weeks later, and then ratification. I want the six months to run from when our Government and every other Government agree the constitution and adopt it at an intergovernmental conference. It looks as though that will happen between 18 and
The only matter of substance in my Bill to which the Government might object is the call for that referendum to be within six months. Who would want to delay the referendum beyond six months? Not even the most Eurosceptic Conservative Member would want to delay the referendum, because that is what we have been asking for. We are willing to abide by the decision of the British public, so we will not try to delay it. The House of Lords will not try to delay it. One of the reasons why the Government have changed their policy is that they feared that the House of Lords would introduce into the Bill a provision for a referendum.
The only people who have an interest in delaying the referendum after the treaty is adopted are the Government. The reason for that is that they do not want it before the general election; they want to defer it beyond the general election. The earliest that the general election might be is next spring or summer, so we are talking about a referendum in the autumn of 2005, which will be 15 months after the treaty setting out the constitution was adopted. What can possibly be the excuse or justification for that, other than proving what I firmly believe to be the case—that this referendum is nothing to do with asking the British people what they think about this issue but with getting the Prime Minister and his skin through the next general election?
I suggest to the Government that it would be simpler to use my Bill. We could all save each other and the House of Commons an awful lot of trouble by letting the Bill go into Committee. I would very much welcome any such concession from the Minister. I am sure that, in such a Committee, we could accept amendments or agree a text for the resolution, timetable and everything else that is necessary. The measure would be on the statute book, and the Prime Minister and Government would not be able to say, "Oh well, we've got to get the referendum Bill through Parliament", because it would have been done in advance.
I believe that the ratification Bill could then be passed very quickly. It would be for those above my pay grade and that of my hon. Friends who are present to agree a timetable with the Government now, but I think that I can confidently say that the Conservative party would be willing to ensure that the two necessary measures, if there are to be separate ratification and referendum Bills, go through Parliament in very short order. I agree that they should be properly debated. A very important issue is at stake, and before the public make up their mind it would be best for them to hear what their representatives in Parliament have to say. However, that could be done in two or three days on the Floor of the House. Such a Bill would not be amendable; there would be no point in having a Committee stage or, for that matter, even a Report stage. It would need fairly lengthy consideration on Second Reading.
I am sure that my party would like to see such a measure on the statute book. Obviously, I cannot speak for the Liberal Democrats, who have been in favour of a referendum for a very long time, for slightly different reasons and rather more honourably than the Government, but I am sure that they would also like to see such a measure. If the Government do not accept my Bill, it will prove my point, which is that their desire for a referendum is nothing to do with seeking the public's decision.
I do not know whether my neighbour, the Minister for Trade and Investment, Mr. O'Brien, can speak for the Prime Minister, but I ask him whether the Government are going to accept the result of the referendum. We do not know about that. The Prime Minister said yes in his news conference, but a hurried press release—no doubt it would have been drafted by one of these part-time Mandelson or Campbell figures—said "Oh no, that is not what we meant at all." There is a wonderful Brookes cartoon in today's edition of The Times; I recommend it to those who have not seen it. In the top left hand corner, under "2005", it has a big "No", along with "The plebs have spoken". After that, there are three pictures showing the Prime Minister rearranging the pieces of the "No" into a "Yes".
That cartoon speaks volumes about what I suspect is going on. In respect of both the Danish and Irish people, we heard Governments say: "You've got the answer wrong guys, peasants; you don't understand this issue, but we in the Government understand it. Have another go and see if you can get it right next time; take another GCSE next year and see whether you can do a little better." That is what is going to happen, but I would prefer to hear the Government say that the referendum is a genuinely democratic move and that they will accept the result.
What is happening in other EU countries? Of the 14 countries, I think that six are committed to holding referendums. France and Italy are consulting. I suspect that the Government's decision to hold a referendum will mean that we see one in France, and I do not suppose that that will earn the Prime Minister any brownie points with President Chirac. It was not so long ago that the Government's mission in Paris was lobbying the French Government not to hold a referendum, because if they held one, we would have had to do so. Now, the pass has been sold by the Prime Minister. No doubt, Mr. Chirac was not one of the two or three people whom the Prime Minister consulted on the U-turn, and I suspect that he is pretty upset about it. Nevertheless, I am sure that the result will be that the French will hold a referendum too, and there will also be referendums in several of the accession countries.
The Laeken declaration, which set up the Convention, did not ask for a constitution at all. The issue was hijacked by the arch federalists—Dehaene, Giscard d'Estaing and Amato—and they produced a draft constitution pretty much before anybody knew what had happened. During the process, I spent a lot of time talking to my right hon. Friend Mr. Heathcoat-Amory, who was one of the representatives of the House of Commons on the Convention. Latterly, I talked to Ms Stuart, who was the other representative, and read her pamphlet. They both said that the constitution was railroaded through the Convention. A small group of people decided what the text should say and pushed it through. There was no formal procedure enabling people to table amendments that would be voted on—they were simply ignored. Nobody would accuse the hon. Member for Birmingham, Edgbaston of being a Eurosceptic, but she said that even the sort of things that she was proposing were left to one side. She was on the politburo, or whatever it was called, that ran the Convention, but even she was unable to have any influence.
What we have seen is a racket. The Euro-elite, which I long tried to kid myself did not exist and is really not very interested in what people think, see the constitution as a huge and wonderful way of extending their influence and power at an international level. That is given away by the incredibly pompous preamble—all about democracy and including quotes from Thucydides—to the Convention. I recommend it to anyone who wants a lesson in pomposity. It says:
"Our Constitution . . . is called a democracy because power is in the hands not of a minority but of the greatest number."
Well, we are about to find out.
If my hon. Friend is in the mood, he might turn back a page and go to the preface, which is signed by three of the more pompous figures in Europe: Valéry Giscard d'Estaing, Giuliano Amato and Jean-Luc Dehaene. They are three of the perpetrators of this outrage. The amount of Euro-balls in the preface is similar to that in the preamble, which my hon. Friend just quoted, and he might consider sharing it with the House, if he feels in the mood.
My right hon. Friend has done that for me.
Another interesting piece of the preamble is where it says:
"Convinced that, while remaining proud of their own national identities, the peoples of Europe are determined to transcend their ancient divisions and, united ever more closely, to forge a common destiny."
That is what these three guys, and the people who go along with them, really think.
I shall quote another telling piece, which may have escaped the attention of my right hon. Friend. Article 1, part of the treaty, refers to
"Reflecting the will of the citizens and States of Europe to build a common future".
How do we know that that represents the will of the people? The constitution was not an issue at the general election, or in the elections in any other European Union or accession country. The Government have now conceded that we will find out, but they have been fighting that for a long time. As I said, they resisted my ten-minute rule Bill, which was in almost exactly the same terms, three or four months ago. We need to find out the will of the people.
The existence of that ambitious European elite is always denied by middle-of-the-road Europhiles, who say, "No, no, no. That's not the agenda. This treaty is more intergovernmental; it weakens the power of the Commission." We were told that at Maastricht, at Amsterdam and at Nice, and we are being told it about the constitution. I heard a couple of my hon. Friends say privately the other day that the constitution weakens the power of the Commission. How does it weaken the power of the Commission to give it a role in foreign policy and the whole of the home affairs pillar? How does it weaken its power to have the Foreign Minister, dual-hatted, in the Commission? It does not weaken its power at all.
I am sticking with the preface, which says that the Convention
"establishes the necessary measures to improve the structure and enhance the role of each of the Union's three institutions".
There, again, one does not have to guess these people's motivation; it is there in black and white. In that sense they are transparent; they do not hide anything from us, but state, in black and white, what they want to do.
I am sure that my right hon. Friend, like me, has an argument with, but no moral objection to, the people who espouse that cause. There is an argument for a united states of Europe, and there is an argument against it, which I will make during the course of my speech. What there is no argument for is pretending that the agenda does not exist, and that is what is happening.
I return to my conversation with a couple of my hon. Friends who are, by my standards at any rate—and probably by the nation's standards—Europhiles. It was a private conversation, so I will not mention their names. One of them asked me, "What are you going to do at the next IGC?" I said, "Hang on a minute. This is not the end of the road." Once we've got the constitution, we'll have another IGC, perhaps in two or three years time, and there will be an attempt to erode the few things left in the treaty which stop it being the constitution of a united states of Europe. I will come on to the detail of what will have to be done to make this the constitution of a superstate. It is not that yet; I can see that, but it is jolly close. The establishment of full-scale qualified majority voting, the inclusion of powers for harmonising direct taxes and the removal of the veto on foreign and defence affairs would do it. They are big steps, and they are three of the Government's red lines, but we are getting very close to them.
We are an awfully long way from 1956, when we signed the treaty of Rome. We lived with that, perfectly happily, for 29 years, until 1985, when we collectively decided—I was a Member of the House at that time, although, perhaps regrettably, it was not an issue to which I paid much attention—that a single market was a good idea and it needed additional powers for the European Union in the form of qualified majority voting. We were told that that would be confined to making the single market work, since when, under the Single European Act, we have had a raft of legislation about employment, health and safety and the environment. If one asked Lady Thatcher, who was Prime Minister at the time, about that, she would say—in fact, I think that she does in her memoirs—how seriously betrayed and misled she felt over undertakings that she was given at that time. It only took her one betrayal to wise up. Since then, we have had Maastricht, Amsterdam and Nice: next, presumably, will be Dublin.
It is time for those of us who do not share the agenda of a united states of Europe to wise up. The Treaty of Rome was purely a customs union, a free trade area and an attempt to ensure that business could develop. It flew the free market flag in a Europe that was not at that time much in favour of the free market. The treaty of 1985 took that a bit further, but was distorted by the way the powers contained in it were used. Maastricht took the big steps, including the treaty of the European Union, the setting up of the single currency and the social chapter. It had a pillar structure. Home affairs and foreign affairs remained intergovernmental—the Commission had no role in them at all. Nevertheless, the social chapter opt-out that we secured in Maastricht was bypassed. The working time directive was passed under health and safety provisions: a different legislative basis was used to bring it into effect because we would not be bound under the social chapter. That is an example of how such provisions are distorted.
In Amsterdam we saw the partial collapse of the home affairs pillar and the extension of qualified majority voting. Nice is the least offensive of all the treaties, because we needed it to make provision for enlargement. When the Prime Minister sold the Nice treaty in this House—I had Front-Bench responsibility for foreign affairs at the time—he said that it was needed to make enlargement work. We were never told that we would need another intergovernmental conference, a constitution or a treaty to make it work. Not everybody was happy with the system of qualified majority voting and the nature of the Commission that came out of Nice, but nobody said at the time that another intergovernmental conference was needed. One is pocketed, then we are told two or three years later that we must have another one.
I recall the debate in this Chamber on the ratification of the treaty of Nice. It happened to be the debate in which I made my maiden speech, as history will recall. A series of Conservative Members said there should be a referendum on Nice. Now, the hon. Gentleman is saying that it was not that significant, but that was not the message from his Back Benchers at the time.
One of the joys of being a Back Bencher is that one has only to speak for oneself, and on that basis I think that the treaty of Nice was the least offensive of all the treaties.
Each of these treaties advances the process of ever closer union, and it will not stop advancing until we have a united states of Europe. A referendum is required at some point between the treaty of Rome and a federal superstate. One could argue that it should have been at Maastricht or at Nice, but we must have it some time. Such treaties provide an opportunity for a referendum to take place, because one can ask this very simple question: do we or do we not ratify it? We have not yet reached a superstate, but we are well on the way to it, and there has to be a referendum at some point. I suggest that now is the time.
If the constitution is ratified and put into place, and the intergovernmental conference about which my hon. Friend told me in confidence takes place in 2008, what has to be done to move from what I foresee will be the treaty of Dublin to a federal superstate? The competences are pretty much complete—the only thing that is not in there is direct taxation. On QMV, there are few areas where the veto is still applicable, but they mainly relate to the Government's red line areas of tax, social security and foreign policy.
It will be necessary for the European Court of Justice, and perhaps the supreme courts of one or two member states, to elevate the EU constitution over member states' constitutions. That is not the same as the supremacy of EU law. One of my fears about this being called a constitution is that courts may interpret it very differently from normal law that results from treaties.
The only safeguard that we are left with is the ability to leave, which is a very crude weapon. I do not want to leave the European Union, because there are many things that we need to do together, especially in business and trade—for example, in negotiating with Japan and the United States. If we did that as individual countries in World Trade Organisation negotiations, we would get absolutely nowhere. It is tremendously important to perceive that we have many common interests. The history of Europe has been a history of warfare and the closer we are and the stronger our business and personal relationships, the better. I do not want to have to use the nuclear weapon of leaving as a way of preventing the European Union from doing things that we do not support.
One can make an intellectually coherent case for a federal European superstate.
I have listened carefully to the hon. Gentleman's argument. Earlier, he conceded that, if the Government's red lines on defence, social security and taxation were adhered to, a superstate would not be created. If we stick to the red lines and adopt a constitution that places limitations on the role of the EU, we must accept that the limitations would not exist without a constitution. The Conservative party position of not having a constitution at all would therefore be more likely to lead to some sort of European superstate than the adoption of a constitution with the red lines. Surely that would provide the limitations.
My hon. neighbour and friend can do much better than that. The constitution advances the competences of the Union and qualified majority voting. There is currently a veto over foreign affairs and defence positions. Taxation is not even a competence. Some aspects of taxation could become the subject of qualified majority voting. The passerelle clause, or whatever one wants to call it, allows the Council of Ministers to institute qualified majority voting on other subjects. We are better off without the constitution, which considerably advances the federalist cause.
There is a respectable case for a united states of Europe. I understand it and perhaps someone will make it in the debate. It contends that pooling our resources and our power in the modern world where there are giant superpowers such as China and the United States is the way forward. I have great respect for people who make that case openly. I have been on platforms with them and I especially remember a Liberal Democrat Member of the European Parliament who presented that respectable case openly.
However, I believe that I am making a respectable case for saying that although we want close relations with other European countries and that we need institutionalised arrangements to deal with some common problems and issues, we do not want a constitution or to go any further in the direction of a federal superstate.
There is no respectable argument for pretending that we are on the second track when we are on the first. The Government do that all the time.
There is another good reason for holding a referendum at some stage in the process. Perhaps it should have happened when the Amsterdam or Maastricht treaties were considered, or during the passage of the Single European Act; perhaps the 2008 intergovernmental conference might be a good opportunity. The decision about whether we are wholeheartedly in the European Union fundamentally bedevils British policy making. Successive Governments have experienced that—it is not new to this Government and it was not a characteristic only of the previous Administration. Some Labour Members are worried about the advance of European federalism and some Conservative Members wholly support it. It is not a party issue but it bedevils policy making. That applies to defence in particular. The Prime Minister asserted that NATO was the only institution that had a defence role, subsequently signed up to the St. Malo agreement and then tried to extricate himself from holding two positions at once.
Anyone who spoke to people in the United States State Department, as I did at that time, knew about all their work to unscramble the matter. I agree that it has largely been done and that the European defence capability has been effectively hauled back into NATO. However, in a giveaway action in November 1998, the Prime Minister signed the St. Malo agreement because we were not joining the euro the following year and he wanted to be at the top table at the next intergovernmental conference, then spent four years trying to row back from it. In the process, he upset all sorts of people, including the United States and Turkey, and European allies such as France and Germany, which wanted a European defence policy and now feel that the Prime Minister misled them.
Until we settle the matter one way or another, it will continue to bedevil us. A referendum will settle it. Without it, the problem will continue. We want to co-operate on many issues where our interests are the same. We need institutional arrangements to effect that but our alliance with the United States is fundamentally important to our security. We have a worldwide outlook and interest that is shared in the European Union only by France—certainly nobody else. What is more, we have a history of successful institutions of government; no other member of the European Union or accession state does. The second world war was a complete constitutional disaster for all those countries. They either put in place fascist Governments or were defeated, and they all had to reinvent their institutions after 1945.
For us, the second world war was the triumph of the nation state, the triumph of our institutions, the triumph of virtually uninterrupted parliamentary government for several hundred years. Why do we want to change that? I can understand why those other countries want to change. I can understand fully why countries such as Belgium, which do not have a strong national identity, countries that do not have much power and countries which are difficult to run as a unitary state because of large regional factors would want to be in this arrangement. I can understand why France and Germany want to tie each other down, although I can never understand why the Germans are prepared to play junior partner to the French the whole time. Nevertheless, I can understand their agendas. I cannot understand ours. We have very successful institutions of state. We have had a successful history as a nation state over many hundreds of years. Why do we want to abandon that?
I want to spend a few minutes considering some of the provisions of the constitution. One of the things that bothers me about calling it a constitution is that that makes it more than just a treaty. Article 10 gives this away when it states:
"The constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of Member States."
So far, we have had a series of decisions in the courts in Germany, France, Denmark and—sort of—here, which effectively say that European law takes primacy over domestic law, but it cannot take primacy over the constitutional arrangements of the country in question. In other words, the law that is made at European level must comply with the powers that were delegated to the EU in the various treaties in pursuance of the constitutional arrangements of the nation states. There are quite a lot of cases to illustrate that, and I shall come to them in a moment. A constitution would normally set itself above that, and I am concerned, given that phrase in article 10, that by calling it a constitution we should be implanting it as a constitution in the domestic law of member states and not simply as another intergovernmental treaty.
It is worth pointing out that that supremacy covers everything. There are bits later in the treaty that exclude elements of the common foreign policy, for example, from the jurisdiction of the European Court of Justice, but that supremacy includes the common foreign policy and the charter of fundamental rights, and I believe that there is a danger that if we implant a constitution in domestic law it might eventually be seen to be superior to that law, perhaps not here but in other countries. That is something that the European Court of Justice will try to achieve, because it is a very constructivist court. We have seen how, given a little power and a bit of a gateway, it advances that idea. That is what the supreme courts of all federal states do. The United States was effectively built by Supreme Court decisions.
Case law in several European countries illustrates the point that I have just made. The supremacy of law does not extend to supremacy over the constitutional arrangements. I shall quote from rather a good pamphlet by Martin Howe QC, who is something of an expert on these matters. He is a European lawyer, practising in the European courts. He says that the European Court has argued that
"Community law is even supreme over the constitutional laws of the Member States."
I should like to quote from the Handelsgesellschaft case, which was probably the most famous ECJ case on this matter:
"The law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by the rules of national law, however framed"—
I think that most of us would accept that that is the position—
" . . . therefore the validity of a Community measure or its effect within a Member State remains unimpaired even if it is alleged that it runs counter to either fundamental rights as formulated by the Constitution of that State or the principles of a national constitutional structure."
The German constitutional court gave that short shrift in the Maastricht case, stating that, if international conventions impose binding obligations on Germany
"which require internal implementation in a way which would infringe guaranteed constitutional rights, then the measures providing for internal implementation are 'subject to review in full by German courts. In this respect the protection of basic rights provided by the Constitution is not displaced by supra-national law that could claim precedence.'"
The judgment in that case continues:
"the resultant legislative instruments would not be legally binding within the sphere of German sovereignty. The German state organs would be prevented for constitutional reasons from applying them in Germany. The Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them."
In France, there has been a similar case in the Court de Cassation, which is the supreme court.
In the so-called "metric martyrs" case here, Lord Justice Laws reiterated the position that there is nothing that the European Union could do that would take away Parliament's right to change the law—in other words, to repeal the European Communities Act 1972, or for that matter any other law, even if it put us in breach of the treaty. However, counsel for a United Kingdom public authority—admittedly, it was only Sunderland borough council—argued that Parliament could not do that.
Here we have a lawyer for a United Kingdom public authority arguing that the British Parliament cannot repeal EU legislation, or cannot repeal the foundations of such legislation. What concerns me is that we are in danger of moving much further in that direction by calling this measure a constitution, and that the European Court of Justice will certainly suggest that it can override domestic constitutional arrangements—it has done so already, and article I-10 will give it far greater power and reason to do it.
I suggest to hon. Members that a constitution is conceptually different from other law, although it is difficult for us to understand that because we do not have a written constitution. Law is made pursuant to a constitution while a constitution is an organic measure. From it, other things flow. I am concerned that, by calling this measure a constitution as opposed to just another treaty that changes the powers. In one way or another, we are opening the way for courts in member states—and perhaps, eventually, even in our own country—to do just that.
Of course it does. We do not have that. As the hon. Gentleman knows, there are few limits on the powers of Parliament to do things, but my point is this: why should our legal arrangements be subject to being overruled by the European Court of Justice? If we are to have a written constitution, let us have a British supreme court with those powers, as is the case in the United States.
It is worth recalling that on
The hon. Gentleman has been given the chance to start his point again from the beginning. He advocates a British supreme court—or perhaps he is saying that that would be preferable to having the European constitution. As a first step towards that, will he support the Government's proposal for a supreme court in this country?
What the Government propose is not a supreme court in the sense of a constitutional court, but simply renaming the Appellate Committee of the House of Lords the supreme court. I think that that is a mistake, because it implies that it will have the powers of a supreme court. The Lord Chief Justice said that we are exchanging an extremely good court of final appeal for a poor man's supreme court. Government policy in that respect is a mistake. A supreme court where there is a written constitution is an entirely different matter from something that is called a supreme court where there is not.
I quote for the House an 1860 constitutional convention in South Carolina, unanimously passed:
"That the Ordinance adopted by us in Convention on 23rd May 1788, whereby the Constitution of the United States of America was ratified, and also, all Acts and parts of Acts of the General Assembly of this State, ratifying amendments of the said Constitution, are hereby repealed; and that the union now subsisting between South Carolina and other States, known as the United States of America, is hereby dissolved."
As we all know, the US federal authorities took a different view of that matter.
As I was saying, we all know where those matters led.
People will say, "This is incredibly far fetched. We are talking about Europe in the 21st century. People aren't going to fight each other again." I am sure that people said the same thing at the 1788 constitutional convention in Philadelphia. I do not suggest that anyone will attack us, but I suspect that if a small European country tried to go its own way, very heavy pressure would be put on it not to do so. We have seen the pressure that was put on Ireland to sign up to the Nice treaty. That was kids' stuff compared with what could happen.
My first substantive point to the Government, which I reach shortly after starting, is that article I-14 needs to be clarified to make it clear that while we call this a constitution, it is not a constitution in the sense of creating an organic law. It is simply another inter-governmental treaty that changes the arrangements for managing the European Union. I do not particularly care what it is called, although I would prefer that it was not called a constitution, but that bit in article I-10 that says that the constitution will have precedence over member states' laws, and, as an afterthought, the laws that are passed under it, is dangerous.
I was bemused by the hon. Gentleman's references to the American civil war, and was moved to suggest that he looks up the Lincoln-Douglas debates. These issues in American history were far more complex than he suggests, and in terms of drawing analogies, his point verges on being utterly ridiculous.
I am sure that if somebody in South Carolina had made that point in Philadelphia in 1788, James Madison, Samuel Adams or somebody else would have made exactly the point that the Minister has made. Seventy-two years later, however, the issue became slightly different. As he has jogged my memory about the Lincoln-Douglas debates, Lincoln's quote about Douglas,
"I will promise to stop telling the truth about him if he will stop telling lies about me" seems very apposite to the way in which the Government handle these issues, because they lie about them. They do not tell the truth about what they are doing, why they are doing it, and what the consequences are.
Does my hon. Friend agree that one example of that was the Prime Minister's answer in Prime Minister's questions the other day, when he implied that the whole of the common fisheries policy would still be an issue of shared competence, when we know that part of the common fisheries policy, under this constitution, would be under the exclusive competence of the Commission?
Order. I ask the hon. Gentleman to choose his words carefully. The words that he just used were in a general sense. I am sure that he would not want to refer to anybody in particular.
They were carefully chosen, Mr. Deputy Speaker.
Is the European Union a state or not? I believe that it is getting close, but it is not a state yet. The most commonly accepted definition in international law of a state, however, is contained in the Montevideo convention, which strictly applies only to the American hemisphere. Nevertheless, it gives four characteristics for being considered a state:
"the state as a person of international law should possess the following qualifications . . . a permanent population" which Europe has, "a defined territory", which we have, "government", to which we are getting very close, and crucially,
"capacity to enter into relations with the other states", which is what this treaty gives. It gives that to the whole Union, not just the Community—previously, the Community, for the purposes of trade issues, had legal personality, but the Union as a whole did not. By giving it that legal personality, and the exclusive right to enter into treaties, certainly, by the Montevideo convention definition, we are coming very close to being a state.
I have talked about tax, social security and foreign policy remaining at least partly inter-governmental. The erosion of the veto in those areas, however, would end it. The constitution involves the Commission in those areas in a way in which it has not been involved previously. All that is needed is an erosion of those qualified majority voting provisions, which can come through article 24 by a so-called passerelle clause without further reference to this Parliament or an inter-governmental conference—the inter-governmental conference in 2008 will not be needed to do it. I think I am right that the Council of Ministers can give up its veto and introduce qualified majority voting in any area in which it wishes to do so.
I suspect that were we sitting our GCSE politics exams and being asked to list the characteristics of a state, we would come pretty close to an A* if we wrote down that it has a Parliament, a President, a constitution, a Foreign Minister, a supreme court, a bill of rights, a central bank, a common foreign and security policy, military capability, a public prosecutor, a currency, a police force, supremacy of federal law over state law, treaty-making powers, legal personality and citizenship. That is not an exhaustive list, but any 16-year-old would get an A* for listing those in answer to what constitutes a state. The fact is that a huge number of the characteristics that, to most people, imply a state, are there. A great many of those that I have listed—nine of the 16—are in the constitution. Nine of those 16 do not currently exist. We do not have a president, we do not have a constitution, we do not have a Foreign Minister, we do not have a Bill of Rights—only an annexe to the Nice treaty—and we do not have a public prosecutor. Federal law is not supreme. It does not have treaty-making powers in all areas. It does not have legal personality. All those things stem from the constitution. We are taking a huge step down that road.
I think it is crucial for common foreign and security policy to remain inter-governmental. The Government have said that that is one of their red lines; but they have agreed to the collapse of the pillar. Under the Maastricht treaty, pillar two—I think; I also get two and three mixed up—remained inter-governmental. Now it is collapsing. The European Union is getting a Foreign Minister. It has not had one so far; it has had a high representative of the Council. I am a great fan of Mr. Solana, who does a very worthwhile job extremely well, but he will now be called the Foreign Minister—and he will have two hats: he will also be a Vice-President of the Commission. The Commission is securing an involvement in foreign affairs that it has not had before, which is an important departure.
Article 39.5 in part I of the treaty says, in regard to common foreign and security policy,
"Before undertaking any action on the international scene or any commitment which could affect the Union's interests, each Member State shall consult the others within the European Council or the Council of Ministers."
That applies to virtually any international action we might wish to take. It means that we must tell those others what we are going to do, or thinking about doing; we must share our analysis with them, and share the issue with them as it affects the United Kingdom. It is a very wide provision. Article 201 contains a let-out proviso, which says that if we think that vital issues of national policy are at stake we can insist that a vote is not taken. Perhaps we, France or Germany could do that, but I think it would be very difficult for any other country to exercise the power. It is like nuclear weapons again: it is like threatening to withdraw.
The European Court of Justice is excluded from articles 39 and 40, but not from the whole common foreign and security policy. It is not, for instance, excluded from article 15, which states:
"Member States shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity . . . They shall refrain from action contrary to the Union's interests or likely to impair its effectiveness."
That means that although they could not interfere under articles 39 or 40 with decisions on the common foreign and security policy, the European Court of Justice will have an overview of how member states behave in relation to it. Article 282, which concerns the imposition of economic sanctions, gives the European Court of Justice oversight of that as well, and I am sure that there are other examples.
There are two big gateways allowing the Court a role in foreign policy decisions. If the Government are really going to draw their red lines around the common foreign and security policy, which I believe they want to do, they must tighten up those arrangements considerably. The European Court of Justice does not need very big gateways; the gate needs to be open by just a fraction of a millimetre, and a couple of cases later it will be through. The Government would be well advised to make sure that the gate is firmly closed, and that there is no way in which the European Court of Justice can secure any role whatever in reviewing this country's foreign policy decisions.
Home affairs is now fully under pillar one. It was under pillar three, I think. We gave up part of that at Amsterdam, when immigration and asylum were given a role. We have now gone the whole hog, and home affairs has been sold out to the Commission. That is clear from page 89 of the treaty, which states that the Union
"shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity"— whatever "solidarity" means.
The home affairs pillar goes very much further than that. Article 170 confers a great deal of power over the harmonisation of civil law. Article 171 deals with criminal law. Article 175 deals with police capabilities, and article 176 establishes a public prosecutor. Those are characteristics of a state. We are giving the European Union enormous powers to take action in areas that we have hitherto considered to be the exclusive preserve of domestic law. That is one huge area in which we have given up power. Those who say that the treaty makes no difference should look at that section and at what has happened to the home affairs pillar, which has remained intergovernmental before.
May I make one technical point to the Minister, to which he may like to reply now or, if not, write to me about? What has happened to the Schengen opt-out? A protocol to the Amsterdam treaty gave us an opt-out from the Schengen arrangements. That protocol is not repeated in the treaty. I should be grateful if he would take that matter on board. He does not need to listen to the whole of my speech, but I should be grateful if he would listen to one or two points to which I shall draw his attention. This constitutional treaty repeals the Amsterdam treaty. The protocol is not repeated in it. The same point applies to our opt-out on the euro in a protocol to the Maastricht treaty. When Maastricht and Amsterdam are repealed, any halfway-good lawyer will be able to argue that the protocols have gone too, because there will be no treaty on which they are based. Where, then, do our opt-outs on Schengen and the single currency survive in the new treaty? I hope that the Minister can satisfy me on that point, either now or at some later time.
Anyone who reads the charter of fundamental rights can see that it is not a Bill of Rights in the sense that most of us would understand our Bill of Rights or that of the United States. It is a list of political aspirations. They are pretty good political aspirations and I do not argue against them, but they are very vague. Again, we are leaving the door open to the European Court of Justice running roughshod all over our domestic law.
Let me give an example. Article II.50 on fundamental rights says:
"No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law."
We have recently passed—or at least if not passed, the Government have proposed—measures providing that the double jeopardy rule be set aside in the case of compelling new evidence. The European convention on human rights, from which this was drawn, contains that proviso, but it is not in the charter of fundamental rights. If we were to agree this, we would be unable to do as we want—I do not particularly want to do it, but the Government do—which is to say that people can be tried again if compelling new evidence comes to light. That is just one example of how that measure will be stretched.
If people do not think that this is the sort of thing the European Court of Justice does, it is worth reflecting on what happened with the equal treatment directive, which I think was adopted in 1978—quite a long time ago. It was designed to give equal treatment to men and women, and it has resulted in the European Court of Justice saying that Germany must include women among its tank crews in front-line units. Mr. Joyce knows more about this than me. One may or may not think that having women in front-line tank units is a good idea. I think that this Parliament should be free to decide that, but the European Court of Justice has built on the equal rights and equal treatment provision. That is how far it has got. That is why I say that, if we leave a chink open to it, it is through it.
The Government think that the "horizontal clauses" that they have had put in will protect them against that, but they are very weak and clumsily drafted. The treaty says that the charter is confined to EU institutions and EU law, but EU law now includes almost everything. Of course, EU law includes the European Court of Justice. Whatever the European Court of Justice does, it is by implication EU law. Let us consider some of the gateways in the constitution through which it may go. It is worth reflecting that the United States Supreme Court got whole rafts of stuff in place using the equal protection amendment. Those things exist in the constitution. Article III.7 prohibits discrimination on the ground of nationality, while article III.8 permits measures to combat discrimination on the grounds of sex, racial or ethnic origin. All that people have to be able to do is hang it on that. If they can show that they are being discriminated against on the ground of nationality, they get the right in one country but not in another. It therefore seems that the ECJ will find a way of getting through.
Let us take the health article, which says that everyone has the right to access preventive health care and to benefit from medical treatment under the conditions established by national laws and practices. The Government say that the conditions established by national laws and practices safeguard us from the European Court of Justice telling Britain what preventive health arrangements we must have. If that is the case, the whole paragraph is completely unnecessary and meaningless. It does nothing; it does not create an additional right. If it does not create a right over and above what we have under national law, why is it there at all?
If I were sitting as a judge in a supreme court, I could say that the intention manifestly must have been to give some superior rights to what were being given under national law, otherwise there would have been no point putting the provision in the charter or the declaration of fundamental rights. When we have a constructivist court such as the European Court of Justice, it will be through there in a flash.
Another issue on which the Government will run into trouble is their quite tough proposals for asylum seekers. I am not arguing the merits or otherwise of withdrawing the social security benefits from asylum seekers, but I very much doubt that the Government will be able to do so once the constitution is in place. The first chapter of the declaration of fundamental rights is pretty all encompassing. It states:
"Human dignity is inviolable. It must be respected and protected."
One does not have to be a very clever judge to hang on to that almost anything that one wants in respect of how human beings are treated, particularly if it is alleged that they are being treated badly.
On employment law, the issue of collective bargaining rights may be dear to some Members' hearts. Article 28 confers rights to take collective action, including strike action. There is no limit on that in the charter but, under our law, there are serious limitations on the right to take strike action. The ECJ, and not Parliament, will have the ultimate power to decide whether restrictions on strike action or collective bargaining should be allowed in circumstances that might have a vital effect on national security. GCHQ is an example. However, we place many more restrictions on strikes. There must be ballots and cooling-off periods, and certain things have to happen first. There are also certain industries in which strikes cannot take place. We will also find it difficult to maintain the conditionality of the working time directive whereby people can contract out or a number of occupations are exempt.
The charter of fundamental rights is really dangerous. The Government resisted it for a long time. They did not want it in the Nice treaty or in an annexe, but they got it in an annexe. Now they have it in the constitution, so why do they not just say "No"? The charter is not fundamental to the constitution; it is a political agenda to which most of us at a political level could subscribe. We would not argue with much of it in an election campaign. Why do we not just exclude it from the treaty? Why does the Prime Minister not simply go back to Dublin and say, "Listen guys. I've got to have a referendum and they are never going to agree to this. Take it out. It does not make the constitution less effective in terms of making the EU's institutions function. We never wanted it in the Nice treaty even as an annexe in the first place"? This is an illustration of the Government's appallingly weak negotiating abilities. They make pre-emptive concessions just because they want to feel good in Europe. They think that they are at the top table and they want to sit alongside Mr. Schröder and Chirac at dinners. If the Government do not like the provision, they should just say that they will not have it. They have a veto. However, once the provision is in the constitution, the gateway will be open and they will regret that at leisure.
The Prime Minister has told us that we have raised a completely false scare about energy. However, page 89 of the draft treaty states:
"In establishing an internal market"— which means qualified majority voting—
"and with regard for the need to preserve and improve the environment, Union policy on energy shall aim to:
(a) ensure the functioning of the energy market,
(b) ensure security of energy supply . . . and
(c) promote energy efficiency".
That is pretty all encompassing and it means that, when the Union has acted, we cannot. Does that cover nuclear power generation? Will we be subject to Union rules about our nuclear power stations of which we still have quite a lot?
What about our treaty over North sea oil with Norway? Under the constitution, we cannot make treaties with other countries in areas where the Union is empowered to make them. We have treaties with Norway over North sea oil and gas. Will they go out of the window? We cannot make any third-party agreements. Therefore, it is true that we are opening up an area of our energy policy. I think that we are the only country in the EU that has oil and gas—Holland may have some access, but only to the gas fields—but we are surrendering that policy to the Union. We were one of the only countries in Europe that had a decent fishing industry, but we gave control of that away. Why do we give such things away? Why do not we say that energy is a matter of particular concern to us and that we want unanimity on it or its exclusion from the treaty altogether?
I mentioned to the Minister how the protocol on the euro in the Maastricht treaty will be extended. Article 14 of the draft constitution gives the Union complete competence over economic policy:
"The Union shall adopt measures to ensure coordination of the economic policies of the Member States . . . The Member States shall coordinate their economic policies with the Union . . . The Union shall adopt measures to ensure coordination of the employment policies of the Member States . . . The Union may adopt initiatives to ensure coordination of Member States' social policies."
Frankly, I do not know what is left. Outside foreign policy and defence, there is little that Parliament or the Government do that does not come within that definition. Not only economic policy, but employment and social policy are being opened up.
I should be grateful if the Minister would reply to this particular point. Article 53(4) addresses the Union's resources and qualified majority voting:
"A European law of the Council shall lay down the modalities relating to the Union's resources."
I am concerned that our rebate may have gone to qualified majority voting. If the Minister cannot reply today, I should be grateful if he would confirm that that point is covered in some other way—I cannot pretend to have read every word of the treaty. Our rebate is worth a lot of money—some £2 billion a year—and it is tremendously important that any change requires unanimity and cannot be done under qualified majority voting.
My final specific point on the treaty concerns tax. Article III-62 contains the power to harmonise indirect taxes by a unanimous vote, although it reduces that condition to qualified majority voting in
"combating tax fraud and tax evasion.".
The same is true of company taxation, which can also operate by qualified majority voting on tax fraud and tax evasion. I used to be a tax lawyer, and one can hang an awful lot around tax evasion and tax fraud. One man's definition of tax evasion is not another's definition of tax evasion—the European savings directive is all about what the Union calls tax evasion. We are opening a big gateway for the European Union.
Finally, I shall examine the consequences of a refusal to ratify the draft constitution. We are being sold all sorts of scare stories that a refusal to ratify would be a disaster. If we refuse to ratify the treaty, as far as the European Union's organisational and institutional arrangements are concerned, we will end up where we are now—at the end of the Nice treaty—and there is no need to do anything else. The European Union functions reasonably satisfactorily, and it functioned satisfactorily before the Nice treaty, too.
The other countries of Europe cannot go ahead without us. They can use the enhanced co-operation provisions of the existing Maastricht treaty, but they cannot tear up the existing treaties and sign this constitution. There is no provision for them to leave the European Union, to renounce the treaty establishing the European Community or to renounce the treaty establishing the European Union. If they did so, it would be a clear breach of those treaties, and they could not inherit the European Union institutions—effectively, they cannot leave. If we, or any other country, veto the draft constitution, we will be where we are now, which is a perfectly acceptable status quo. The scare stories about the consequences of not ratifying the treaty are simply not true. On other European countries renouncing the Maastricht treaty, it is also worth bearing it in mind that the Maastricht treaty is the basis for the euro, and that the 11 countries that have the euro do not want to scrap it.
The ultimate protection is the right to leave, which was one of my red lines, which I discussed earlier. The right to leave requires a leaver's agreement, and the arrangements that reduce that right to qualified majority voting are not entirely satisfactory. If such an agreement cannot be obtained within two years, the constitution ceases to apply to the member who wants to leave, and such arrangements should be more even-handed.
The treaty moves things along in several fundamental areas, and it is not only a tidying-up exercise. It opens gateways for interference by the European Court of Justice in all sorts of areas in which it should not be involved, including foreign and security policy. Finally, the danger of creating a European constitution is that we create a different kind of law within the EU. I believe that that is what it would do in its present form, although that could be dealt with fairly easily by amending article I-10.
The former right hon. Member for Chesterfield used to say that the two fundamental characteristics of a democracy are that the voters can throw out the Government and the Government can change the law. If voters do not like the way in which the Government are behaving, they can throw them out. The electors threw out the Conservatives in 1997, but when they throw the Labour party out of government—next year, we hope, but it will happen at some point—they will not be electing a Government who can change laws made pursuant to the European treaties. We are agreeing to delegate Parliament's power to make legislation to a group of people who cannot in any circumstances be controlled by the British electorate.
Let us take an example of an action taken domestically—that the Bank of England should set interest rates. A new Government could change that, perhaps even without legislation being passed, but certainly with it. Parliament could change that law. However, the House cannot change laws, regulations and directives—or framework laws, as they will be known in future—introduced by the European Union. There is a fundamental question of democratic accountability to be addressed: such accountability does not and will not exist. As elected politicians, we all share the view that those in opposition can hope that, one day, the voters will throw out the Government and they will be able to put right all the awful and stupid things that that Government did. There are fewer and fewer things that we can put right, and once the treaty is in place there will be very few indeed.
I welcome wholeheartedly the Government's conversion to holding to a referendum, but I believe that they are making a terrible mistake in leaving it until after the next election. First, that will enable people like me to traduce their motives. Secondly, and more important, it will leave outstanding an issue that has bedevilled British politics for two generations and will continue to do so until it is settled. I shall accept the results of the referendum. If the answer is "yes", it is clear to me what direction a chunk of British policy will take in future. I believe that, however much jiggery-pokery and gerrymandering they try, the Government will have to accept a no vote, and it will also be clear in that case where things go from there. I believe that the sooner the question is settled in a referendum, the better for all of us.
I begin, Mr. Deputy Speaker, by wishing you and all hon. Members a happy St. George's day. I have been going out of my way to say that to as many of my English colleagues as possible, to which their response is to look at me bizarrely. They are swift to complain when people celebrate St. Patrick's day or St. Andrew's day, but when one tries to generate support for St. George's day, no one seems to reciprocate.
The right hon. Gentleman is a Scottish exile, but he is the only one to have reciprocated when I mention St. George's day. I thought that Mr. Maples might have made some sort of reference to it—perhaps in connection with slaying the mighty Euro-dragons that he paraded before us. However, they were inflatable dragons, which he had to blow up himself in order to slay them during the course of his speech.
Without wishing to derail my hon. Friend's peroration about St. George, it is important to point out that St. George is the patron saint not only of England, but of several European nations.
Indeed, he is a great European figure, even though I believe he originated in Palestine. Anyway, happy St. George's day and happy birthday to my brother, too—
In the course of my speech, I shall do something that the hon. Member for Stratford-on- Avon did not do in the one hour and 10 minutes that he spoke, which is address the Bill. I stand to be corrected, but I never heard him do so: he spent the whole time speaking about the draft constitution. I shall mention that, too. He presented it as axiomatic that those who support a referendum—as we all do—must support his Bill; but as one who is profoundly attached to the idea of a referendum, I cannot support his Bill, because it is deeply flawed. I shall go through it, even though the duration of his speech might mean—I do not presume to know the will of the House in advance—that we do not have time today to commit his Bill to Committee.
As the hon. Gentleman says, that will be the end of it. The Bill may never reach Committee. I do not want the record to show that I voted against the Bill, if given an opportunity, because I am against the idea of a referendum. I would vote against it because I am against the Bill, which is profoundly flawed. It is not in the interests of democracy to pass a Bill that contains such profound flaws, which I shall detail in the course of my speech. Those of us who believe that the British public have a right to have final say on the matter, and that they should be consulted as a result of the constitutional treaty negotiations, do not think the Bill is the mechanism by which to deliver that.
I congratulate the hon. Member for Stratford-on-Avon on securing a place so high in the ballot for private Members' Bills. Last year I came second in the ballot and succeeded in getting my own private Member's Bill, a much smaller and more modest measure, on to the statute book. It came into force a fortnight ago today, so I know how exciting it is to pilot a private Member's Bill.
My hon. Friend makes an important point. We are here today to legislate—to try to get Bills through the House. Perhaps we will be able to vote on the Bill today; perhaps we will not. If Mr. Maples was serious about trying to achieve a referendum on the basis of his Bill, he would have not have spent so much time arguing about it himself. He would have allowed a proper debate to take place in the House with all hon. Members present contributing, which would have given it a better chance of being debated, rather than talked out. That is inevitable, given the short time left to debate the Bill.
I am, sadly, forced to agree with my hon. Friend. I expect the headline on the press releases has already been written—"Government talk out Euro referendum Bill"—and that there will be yet more confusion, not just the alleged confusion that the hon. Member for Stratford-on-Avon spoke about at great length at the beginning. I do not know what will happen. We might draw matters to a conclusion and have a vote, with the Bill going into Committee.
Since we are in a relaxed conversational Friday mood, I remind the hon. Gentleman and Mr. Dismore that Mr. Martlew spent an hour introducing his Bill, which, sadly, fell as a result of a pathetic lack of support, so the fact that my hon. Friend Mr. Maples made an excellent speech setting out his views for about the same length of time is not exceptional. It is almost normal for a Friday.
I posit one distinction. My hon. Friend Mr. Martlew referred to his Bill during his speech. The record will show that the hon. Member for Stratford-on-Avon made almost no reference to his Bill. He spoke at enormous length about the constitution, which is obviously at the heart of the matter, but he hardly referred to his own Bill. My hon. Friend the Member for Carlisle talked us through his Bill and explained the effect of the various clauses. He took a considerable time to do that. I enjoyed the speech of the hon. Member for Stratford-on-Avon. Unlike Mr. Forth, I was present for the entirety of his hon. Friend's very good speech. The right hon. Gentleman flitted in and out of the Chamber.
I distinctly remember my hon. Friend referring explicitly to clause 1(2), saying that although the Government now happily supported the thrust of most of his Bill, that element might be more contentious. That is one example of a reference that my hon. Friend made to his Bill. Perhaps he did not have to go into quite as much detail as usual because, as he pointed out, the Bill is in all other respects Government policy.
I am grateful to the hon. Gentleman, as I did speak for a long time. I specifically said that "adoption" is a term of art meaning that when the treaty is agreed at the intergovernmental conference, it is usually signed two or three weeks later when the text is finalised. The hon. Gentleman is being unfair on me. I did speak about my Bill but, as it is Government policy, there did not seem to be much on which the Minister and I differed.
"Adoption", as the hon. Gentleman knows, is not the normal word used in the present context. It needs clarification, and I intended to ask him to provide such clarification, should his Bill go into Committee. It may be a matter of weeks between the intergovernmental conference and the signing of the treaty, but, on an issue of such magnitude, there could be many months between it being agreed and it being signed. Merely to talk about adoption without specifying that further is one of the many flaws in the Bill, which means that regrettably, although I support a referendum, I am unable to support the Bill today.
The only part of the Bill to which I recall Mr. Maples referring was the referendum question itself, which of course goes to the heart of it, but he simply said that if we do not like the question it can be changed in Committee. If the heart of the Bill is the referendum question, does not that simply show that the hon. Gentleman has no real intention of taking the Bill forward, but is simply playing with the House's time?
Yes, and one cannot condone such an infantile approach to making laws as simply speaking for the sake of speaking. My hon. Friend tempts me to pre-empt my own speech because I want to speak at some length on the question. He is right to say that the hon. Member for Stratford-on-Avon spoke about the question, but he did so only because I asked him about it. I intervened on him twice to clarify the matter and he conceded immediately that the question could be amended in Committee. How often do we hear Opposition spokesmen and spokeswomen condemning the Government for introducing amendments in Committee?
At the moment I am serving on the Committee considering the Pensions Bill—a magnificent measure representing real social progress—but because of its technical nature the Government have had to introduce a large number of amendments, and every amendment that we introduce is heralded by Conservative spokespeople whingeing about the fact that we are introducing amendments that should have been on the face of the Bill so that they could have been properly scrutinised on Second Reading.
Yet here we have the hon. Gentleman saying that if we do not like the referendum question, which is at the heart of this Bill, it can be amended in Committee. That approach is entirely unsatisfactory. As far as possible, Bills should be accurately drafted in time for Second Reading so that hon. Members can scrutinise them, not send them off to a Room Upstairs for debate. Again, that is part of the flawed nature of the Bill.
Would it not be far better for Mr. Maples simply to withdraw the Bill, get it in order and perhaps try to secure a further ten-minute rule slot? In Committee on the Planning and Compulsory Purchase Bill, I remember the Opposition jumping up and down and protesting about changes to the very nature of the Bill, which meant that it had to be withdrawn, redrafted and have a second Committee stage. Would it not be far better for the hon. Gentleman simply to withdraw the Bill and start again?
I fear that my hon. Friend is correct, and I have mentioned only two of the flaws; I have yet to reach the meat of the Bill. It has many other flaws.
Walking towards King's Cross tube station coming into the House today, I saw a huge poster saying "Kill Bill". I thought that the Labour Whips had generated such a magnificent operation that every Member of Parliament making their way to the Commons today would get the message to kill the Bill. However, I have been told by those more culturally aware than I am that it is the name of a film. It is not my intention to kill the Bill, but to vote against it because of its flawed nature.
The hon. Member for Stratford-on-Avon tries to make his case by attacking the constitution, on some elements of which I would agree, and inventing other reasons for attacking the constitution and for voting no, irrespective of what is in the treaty. His case was about as credible as Kevin Spacey. [Interruption.] At least my references are contemporary. At Prime Minister's questions this week the Leader of the Opposition referred to the words "Help me, Rhondda. Help, help me Rhondda." I had to have that explained to me because I am far too young to know what he was talking about. Mr. Forth is an Elvis Presley fan and a Beach Boys fan, too. I did not know that song and I had to have the reference explained to me, as did other youngsters here.
As my hon. Friend rightly points out, the Bill needs detailed scrutiny—it affects the whole of the United Kingdom. More than half the Government Members present represent Scottish constituencies, and I see that the Liberal Democrats are represented 100 per cent. by Members from Scottish constituencies. What does my hon. Friend say about the absence from the Chamber of any Scottish National party Members, who advocate a referendum in Scotland but are not here today—
Thank you, Mr. Deputy Speaker. Of course I shall not stray down that path, other than to say that the Bill that was considered earlier would also apply throughout the United Kingdom, as would the Bill that is scheduled to be debated after this one. Three United Kingdom-wide Bills have been scheduled for debate this morning, so my hon. Friend has made his point very well.
Would my hon. Friend care to explain the example that he cited earlier, for the benefit of those who did not understand it? I congratulate him on making a contemporary reference, when the best references that we heard from the Opposition were to 1860 and the American civil war.
Now my hon. Friend really is pre-empting my speech, as I have some thoughts about the civil war. I might not be a great constitutional expert, but I happen to know a wee bit about the American civil war and the experiences that led up to the secession of the south. That period is directly relevant to our discussion. Indeed, the hon. Member for Stratford-on-Avon spoke about it at length, and he will be delighted to hear that I will say more about it anon.
The first flaws in the Bill have already been mentioned in passing, but they require further reflection. Clause 1(2) states:
"A referendum shall be held within six months of the adoption of the Treaty."
We are entitled to ask what adoption of the treaty means. The term "adoption" is not common in respect of European treaties, which are not spoken of as adopted. They can be agreed, ratified, signed and endorsed by Parliament, but not adopted. The hon. Member for Stratford-on-Avon is therefore including in the Bill a brand-new term. It might be the correct term and precisely the one that we need in this case, but we would need to examine the implications for future treaties and consequent Acts of introducing that new legal term into the corpus of our domestic law. He admitted that the term is not commonly used in this context and had to define it, and it would be unwise to proceed with the Bill while it remains. He might say "Okay, we'll amend the Bill in Committee", but that brings me back to my original point: it is not acceptable to bring a Bill to the House for its Second Reading having had quite a while to prepare it, and then immediately say that we can amend it in Committee. That is not a good way of making laws. If we had 5p for every time we heard the right hon. Member for Bromley and Chislehurst make precisely that point—I am indebted to him for drawing it to my attention—we would all be considerably better off.
I explained what the word "adoption" means. It is a term of art and I checked it with the Clerks. Furthermore, this Bill is, word for word, exactly the Bill that Mr. Field introduced in the previous Session. I shall draw the right hon. Gentleman's attention to Hansard and to the hon. Gentleman's criticisms of the drafting.
I have enormous respect and admiration for my right hon. Friend Mr. Field, but there are many things on which I firmly disagree with him. If he were present, I would tell him so to his face, but perhaps he is visiting a school or something. As he is not present, I do not think that we should discuss his views in any great depth.
That may well be the case, which illustrates the problem: as the term is not usually used in such a context, it is open to various interpretations. Frankly, such a situation is not good enough when we are passing laws. We will not adopt the Bill, foster it or take it into care; we will vote either for it or against it on the basis of what it contains. Such loose language is not acceptable, which is why the Bill should not be given its Second Reading.
I thank my hon. Friend for giving way, and I apologise for being away from the Chamber while I gave in to the temptation to have a bit of lunch.
The Bill says that a referendum should be held "within six months", and a great deal was made of the need to proceed swiftly. Does my hon. Friend have views about how soon after a treaty is adopted or ratified, or whatever the correct term is, we could try to hold a referendum?
It is not so much how many months, but whether the Bill can be given adequate parliamentary scrutiny. That is what is at stake, not whether we set up an artificial guillotine or time frame. We need to get a treaty that is acceptable to the UK and recognises our red-line issues; in other words, one that does not encroach on the UK's veto powers on central issues and does not take over our foreign policy or our policy on defence, taxation, immigration and so on. The hon. Member for Stratford-on-Avon referred to many of those matters during his speech.
If we can secure a treaty that we agree with, it must then be formally written up and signed, which could take months. As with the treaty of Nice, a Bill has to be published and introduced, and parliamentary time has to be set aside for scrutinising it in both Houses. Then, and only then, can we consider having a referendum. In other words, the timetable leading up to a referendum will be dictated by the process of parliamentary scrutiny—and we would have to ensure that the treaty received the closest possible scrutiny—and could not be arbitrarily set at six months.
Can you imagine, Mr. Deputy Speaker, what would happen if we were trying to stick to a timetable but there was a delay in the signing ceremony? There would then be a delay in bringing the Bill to the House, and midway through our debate or perhaps even before it had started we would have to have a referendum simply because we were adhering to a timetable that had been plucked out of the sky and included in this flawed Bill. My approach, then, is to think in terms not of weeks or months but of the process of parliamentary scrutiny.
Is there not another possibility that we should consider? What if, as a result of negotiations, the Conservatives did a U-turn and were no longer against a constitutional treaty? If there were unanimity among the major political forces in the country, there might not be a case for a referendum at that time. There might be a case for a referendum at some future date, but it would be premature to assume that the political position in the House would be the same a few months later.
My hon. Friend makes a fair point. I slightly disagree with him because I am wedded to the notion of a referendum. I believe that that is the right policy, and I can foresee no circumstances in which we would not have a referendum, unless the constitutional treaty had already been killed off by a series of "no" votes elsewhere and the whole process had ground to a halt. Even in those circumstances, however, we might still go ahead with a referendum. Although I hear what my hon. Friend says, and we should not prejudge what will happen in the months ahead, I am firmly convinced that the policy of committing the matter to a referendum is right, and I look forward to that happening.
My hon. Friend has highlighted the issue of the six months, which start from the date of adoption, although we do not know what that means. Of course, we do not know when the Bill itself will come into force, because yet another of its flaws is the fact that it contains no commencement provisions. I should have thought that one way round that issue would be to insert a commencement clause at the end. Will my hon. Friend give us his views on that?
My hon. Friend never ceases to amaze me. I studied the Bill in depth in preparation for today's debate, and I thought that I had picked out all its flaws, but I missed that very glaring one. I can therefore forgive the hon. Member for Stratford-on-Avon for making that mistake. Is not this an example of parliamentary scrutiny at its very best? Hon. Members can study a measure in detail and point out its flaws.
The same will happen when we scrutinise any constitutional treaty laid before the House as a Command Paper. However, the Conservatives do not want us to do any of that; they want the treaty to go straight to a referendum before it has even received parliamentary scrutiny. The intervention by my hon. Friend Mr. Dismore brilliantly highlights why our policy of scrutinising a treaty in the House before a referendum is correct. The official policy of Opposition Front Benchers, which is to have the referendum before we even have the treaty, is flawed, and the policy of the hon. Member for Stratford-on-Avon, which nuances that by saying that we should have a referendum six months after the treaty's adoption, whatever that means, is equally flawed for the reasons that my hon. Friend just gave.
Let us suppose that adoption means agreement in principle in June. Bearing in mind the parliamentary timetable, the six months for which the Bill provides could expire before the Bill comes into force.
That is yet another flaw in the Bill and another reason why even those of us who are wedded to the idea of a referendum cannot support it.
My next problem with the Bill concerns the question that will be asked in the referendum.
I am sorry to keep pursuing this point, but the hon. Member for Stratford-on-Avon looks bemused by my last intervention, and I should perhaps explain what I mean. Let us suppose that the Bill passed through to Committee today. It would then have to come back on Report, which I envisage would not happen much before June, and go to the other place. The prospect of its completing its parliamentary passage much before the spillover Session is pretty limited. As there is no commencement date, it would come into force three months later, by which time six months would already be up.
We would have to have a retrospective referendum of some kind. My hon. Friend is deep into the realms of metaphysics, but I think that I follow him. The Bill would come into force more than six months after the treaty had been adopted, so we could not have the referendum laid by down by the timetable in the Bill because six months would already have lapsed. I am glad that he clarified that, because I did not quite get it the first time round either.
My hon. Friend is clamouring for me to give way, but I will just finish this point. The hon. Gentleman has consistently conflated the two notions to suggest that if one loves good and hates evil one must support this Bill, but that does not follow. I support the idea of a referendum following the successful completion of negotiations and the securing of a treaty that respects the British red lines. Given the involvement in those negotiations of my hon. Friend the Minister for Trade and Investment, who is on the Front Bench, I have every confidence that the Government will secure such a treaty.
Following that—we do not know whether it will be during the summer or later than that—we must subject the treaty to parliamentary scrutiny. That process will take a few months. I have no idea how long the passage of the Bill would last, but, given its many flaws, including his failure to specify a commencement date, I would expect it to have to spend quite a while in Committee. He has already said that he would table a couple of amendments, and we have not yet got through Second Reading. It is not a question of padding it out; it would take such a long time to rectify its flaws that the bizarre parallel time line outlined by my hon. Friend the Member for Hendon is plausible.
Does my hon. Friend agree that the hon. Gentleman's great haste to rush to a referendum is about ensuring that the people of Britain do not have the opportunity properly to examine and understand the constitution, which would be more likely lead to a no vote than a proper discussion in this Parliament and in the country on the important issues that it contains?
My hon. Friend is being uncharacteristically unkind to the hon. Gentleman. I think that he genuinely has concerns about the constitutional treaty—as do I, as do the Government, and as does my hon. Friend, I am sure—but the arbitrary nature of the timetable that he sets out and the difficulties that I envisage, which have been complicated further by the forensic insight of my hon. Friend the Member for Hendon, mean that the Bill cannot be allowed to continue.
I want to speak about the issues that we must tackle before the constitution is put to a referendum. Parliament must be at the heart of dealing with those matters. One cannot simply pluck an arbitrary period, for example six months, out of thin air, include it in the Bill and tell people, "If you oppose the Bill, you oppose a referendum and you don't want the people to have their say. If you oppose the Bill, you want a European superstate, straight bananas, people driving on the right-hand side of the road" and all the usual nonsense. I support a referendum but I oppose the Bill.
My hon. Friend is generous in giving way. Perhaps I can help him a little with the previous intervention by Mr. Maples. I assume that he did not consult Mr. Forth before he made it. If he had done so and was a more regular attender on Fridays, he would know that a private Member's Bill has a timetable and a specific date is set for it. That means that he should take his turn in the queue with everybody else. If he was genuinely worried about enacting his Bill in time, he would have set a commencement date—either on Royal Assent or within a month of Royal Assent—that would have enabled his timetable, such as it is, to be fulfilled. That shows how badly drafted the Bill is.
My hon. Friend amplifies the point that he made earlier with great clarity. There was a vote on the young cyclists helmets Bill—it was called something like that—
Yes, that was the title. It has now been shunted to
The Government are not trying to pad matters out until the Bill falls off the end of the cliff. The hon. Member for Stratford-on-Avon need only look through the Order Paper, which sets out all the Fridays when such matters will be debated. I am not trying to ensure that the Bill does not succeed through some sort of procedural mechanism. I should be happy to vote against it, not because I oppose a referendum—I am not sure whether I have made it clear that I support a referendum—but because I oppose the Bill.
The hon. Gentleman says that he wants an opportunity to vote against the Bill, but he has been speaking for half an hour. Does he realise that if the Minister is to have time to respond to the pertinent questions that my hon. Friend Mr. Maples asked, he should sit down soon? Or is his motive to talk out the Bill?
It will take me a few moments to deal with that question. As my hon. Friend the Member for Hendon said earlier, the hon. Member for Stratford-on-Avon took an hour and 10 minutes, not at the beginning of the day but halfway through the morning, to make his case. The right hon. Member for Bromley and Chislehurst, on one of his periodic visits to the Chamber, which seem to last approximately 10 minutes before he leaves again, leapt to his feet and accused my hon. Friend the Member for Hendon of committing an outrage. He asked how my hon. Friend dared criticise the hon. Member for Stratford-on-Avon for speaking for an hour and 10 minutes and whether he realised that the material was important and salient. I pointed out that the right hon. Gentleman had not been present for most of the speech. None the less, I agreed that it was a good speech and an hour and 10 minutes well spent.
I shall not on this occasion. If my hon. Friend lets me make a little progress, I shall happily give way later. I want to continue my analysis of the measure because, as I have already said, I would be the first speaker to conduct such an analysis.
Let us consider the second flaw in the series of flaws that means that the Bill cannot be supported—the referendum question. When the hon. Member for Stratford-on-Avon referred to the 34 referendums that have already taken place, I asked him how many had the question decided by an Act of Parliament. I genuinely did not know the answer. I was not a Member of Parliament when the Bill that dealt with the Greater London authority was considered and I do not know whether the referendum question was included in the measure. I am happy to give way to any hon. Member who can tell me whether it is custom and practice to specify the question in the Bill.
Clause 3(6) states:
"The Electoral Commission shall publish a report setting out when and how the referendum shall be conducted", but that presumably does not include the wording of the question, because that is on the face of the Bill. That being the case, the Electoral Commission would have no say in that matter and would simply have to implement the measure.
We are now coming to the crux of the Bill, namely, the wording of the question. My hon. Friend makes a relevant point about the Electoral Commission. Does he accept that the way in which a question is phrased can often determine the type of response that it gets? The question in the Bill asks:
"Should the United Kingdom be bound by the Treaty establishing a Constitution for the European Union?"
Does not that give a hint, at least, of the Conservatives' view that the treaty in some way restricts the sovereign rights of the UK? Is not the question itself designed to get a "no" answer?
I fear that it is. My hon. Friend's hackles were raised in the same way as mine were when I first read the question. I think that he might have been taking some refreshment after his magnificent speech in the earlier debate when I made precisely that point to the hon. Member for Stratford-on-Avon. I scored a bull's eye when I did so, because as soon as I had made the point, the hon. Gentleman said, "Fair enough; let's amend it in Committee." It was hardly the most robust defence of his own Bill to say, "Well, okay, if you think it's a bit biased we'll discuss it in Committee."
I want to explore the general principle of whether we should put the wording of a referendum question into primary legislation. If someone can convince me that that is where it belongs, and that that is what we have done for the last 36 referendums, my fears would be calmed. Perhaps the Minister can help me here; he used to be in the Home Office. No one has yet explained to me why this wording needs to be in the Bill.
Did not the hon. Member for Stratford-on-Avon give the game away when he said that this was exactly the same Bill as the one that was promoted by my right hon. Friend Mr. Field? Is he not simply using the Bill as a vehicle to expound his anti-European views, rather than seriously intending to legislate? If he had had serious intentions, he would have made sure that his Bill was in order.
I agree with my hon. Friend. The hon. Member for Stratford-on-Avon is a parliamentarian of long standing. Indeed, he was the author of the Maples memorandum—if I am allowed to call it that—which Labour Members thoroughly enjoyed reading. I think that at one stage I knew every word of it and was able to campaign on it during the 1997 election. He had a brilliant forensic mind when he was setting out the flaws of the then Conservative Government. Unfortunately, it seems to have deserted him when he was drafting this Bill.
If the hon. Gentleman has lifted a previous, flawed Bill without studying it in any great depth and put his own name to it, that would be a tiny bit irresponsible. Hon. Members tell me that that has been done in the past, but I cannot imagine that it is a common occurrence. I certainly would not want to put my name on a Bill as flawed as this one. I know that this might sound self-aggrandising, but my private Member's Bill went through all its parliamentary stages in both Houses last year without the need for any amendments.
My hon. Friend is a more assiduous attender here on a Friday than I am, and I bow to his superior knowledge of these matters. It is a terrible shame if that is what is happening, and if this is part of a pattern. I thought that this was just a random occurrence, but it is very sad if my hon. Friend is right.
There are two issues relating to the wording of the question. The first is the principle of whether a referendum question should be included in a Bill, irrespective of what it says. Hon. Members will correct me if I am wrong, but I understand that, as and when we have a referendum on the euro, the question will be framed by the Electoral Commission or some sort of independent body. I might be wrong; the Government might be intending to frame the question themselves—I am not entirely sure. However, if we were to give the Electoral Commission a significant role in the conduct of this referendum, excluding it as a point of principle from having anything to do with the framing of the question—after all, what is a referendum if it is not a question?—seems to be the major flaw in the Bill. I might have been more inclined to support it, the other flaws notwithstanding, had it said, "The question to be asked in the referendum shall be decided by the Electoral Commission and ratified by Parliament." However, it says:
"The question to be asked in a referendum held in pursuance of section 1 is"— and it goes on to outline a question.
I want to talk about the question—the words themselves—in a moment, but we must not pass on to that discussion without discussing the principle of fettering the Electoral Commission in its rightly ordained role. This Parliament gave the commission powers so that there would be no hint of party political bias in any such sensitive matter to do with elections or referendums. It would have had a lot to say about how the 1975 referendum was conducted—it was clearly one-sided in terms of the money spent and the publicity given to the "Yes" campaign. [Interruption.] I am far too young to remember it; I have read about it in the history books.
The commission exists to ensure that no hint of bias or one-sidedness can creep into any part of the electoral process, including a referendum. The hon. Member for Stratford-on-Avon recognises that, because he would give the Electoral Commission a key role in publishing
"a report setting out when and how the referendum shall be conducted".
However, the commission may decide when the referendum is to be conducted provided that it is six months after the date of the adoption, whatever that is, of the constitutional treaty. The commission would be told, "You can oversee the referendum, but you can't decide what the question is because we have already decided it. You can't decide on the timing of the thing because we have already decided it." The Bill also refers to the referendum being held on a public holiday, so the commission would also be told, "You can decide when it is, provided that it is on a public holiday six months after the adoption of a treaty." The commission would be outraged to be so fettered.
The hon. Gentleman made a point about the referendum being held on a public holiday, which is referred to in clause 3(10). It states:
"The day chosen for holding the referendum shall be a public holiday."
Does he interpret that to mean that there shall be a holiday on the day of the referendum or that thereafter, for ever, it shall be a holiday to celebrate it?
Assuming that the Bill did not come into force until autumn, the first public holiday on which the referendum could be held might be Christmas day. Bearing it in mind that we have previously debated Christmas day trading, does my hon. Friend believe that it would be appropriate to hold the referendum on Christmas day, which is the implication of the Bill?
I have not studied the timetable in such depth, but clearly that would not be acceptable. My hon. Friend highlights the point that the Electoral Commission, which is supposed to decide such things, would be so fettered—so hemmed in—by this flawed Bill that its freedom for manoeuvre would be nugatory. He has pointed out yet another anomaly.
I am grateful to my hon. Friend for giving way once more; he is being very generous with his time.
Surely another reason for it being wrong to exclude the Electoral Commission from the process in such a way is that, on the face of it, the Bill takes no account of any minor name changes to whatever treaty eventually emerges from the European negotiations. If the treaty were called the treaty establishing a constitutional framework for the EU, or if there were some other change to the wording that was not covered by the Bill, no referendum could be held. The Bill introduced by Mr. Maples, rather than enabling a referendum to be held, could prevent it.
I had not even considered that, but of course my hon. Friend is right. The flawed nature of the Bill involves not only how it would fetter the Electoral Commission, but how it would fetter us. We might have to wait to hold a referendum and perhaps this issue would become another important matter for the Government: our hands would be tied by such an Act of Parliament, so the name of the treaty that emerges would have to be a red-line issue. We will have to insist that it translates into English as a constitution for the European Union, and we cannot have it any other way because we have already been fettered by this legislation.
I want to deal with the public holiday point. I thought that the Liberal Democrats had understood the provision properly, whereas the hon. Gentleman had not. I take it to mean, and it is intended to mean, that whatever day is chosen for the referendum shall also be designated a public holiday, not that the referendum must be held on what is an existing public holiday, because that would constrain the timetable seriously and we would have had to have it on Christmas day. My intention, and what the Bill says, is that whatever day is chosen—let us say that it is
As my hon. Friend anticipates from a sedentary position, it does not say that. It says:
"The day chosen for holding the referendum shall be a public holiday."
There are three interpretations of that: one is that it must be held on a public holiday that was going to be a public holiday anyway; another is that whatever the day is, it will be made a public holiday; and the third is that it will become a public holiday for ever, heading off into the future. The Bill is ridden with flaws—not just the ones that I have noticed, but the ones that my hon. Friend the Member for Edinburgh, North and Leith has drawn to my attention, and the nuance in the flaw that the hon. Member for Caithness, Sutherland and Easter Ross has drawn to our attention. It is almost embarrassing to point it out to the hon. Gentleman, but it must be done.
If the promoter of the Bill is correct, although he is probably making it up on the hoof, there are two possible interpretations. One is a significant impact on the British economy from losing a working day, and the second, if it turns out to be a public holiday for ever more, is a significant bribe to the electorate, which he could claim as a result of his Bill to try to persuade people to vote the way that he wants.
My hon. Friend highlights another point. Where is the regulatory impact assessment? If it is going to be a public holiday, we need to know the cost to the British economy. However, there is no such assessment. I understand, because I have introduced my own private Member's Bill, that the promoter is not obligated to provide a regulatory impact assessment, economic impact assessment or environmental impact assessment, but every time that someone asks for a new public holiday—whether Trafalgar day or some other day—the CBI rushes forward with some figure of billions of pounds that it will cost the economy. I presume that there is a standard figure, whereby a day's public holiday costs X billion pounds—the hon. Gentleman does not have to do the calculation himself but just ring up one of his mates at the CBI who could tell him. I would have expected to know such a figure. I will not vote for any legislation today that makes a commitment to have a public holiday when I have no idea what the cost to the British economy might be. It would have helped the hon. Gentleman's case if he had been able to provide an explanatory note or impact assessment saying what the cost would be.
Of course, that only follows from the second of the three interpretations, which is that it should be a new public holiday. My first reading was that the referendum must take place on a day that is already a public holiday, which was my hon. Friend's understanding when he was looking to have it on Christmas day. Whether it is option one, two or three, it is simply not clear. The hon. Gentleman said that it was perfectly clear and then used a completely different formula and set of words, which, to his credit, were crystal clear, but they were not what is in the Bill.
The hon. Gentleman said that we should bring forward an amendment in Committee. I hope that somebody, somewhere, is making a tally of all the amendments that must be tabled in Committee—my hon. Friend on the Front Bench might be doing that. It is not treating the House with contempt, but it is stretching the patience of the House to introduce legislation that is so flawed that, before we have even reached Committee, it requires a string of amendments. Under these circumstances, all that we can say is that the Bill has become nothing more than a long string of amendments held together with a few standard clauses, which is simply not acceptable and simply should not be given a Second Reading.
Did not Mr. Maples give the game away when he made a passing reference to the Electoral Commission, saying that it could be involved further down the line? If he was serious about legislating, surely he should have consulted the commission before drafting the Bill to make sure that it did not contain so many flaws.
We have discussed the flaws relating to the issue of adoption and the insertion of words that fetter the Electoral Commission, which was probably not even consulted. The next major flaw lies in the wording of the referendum question. I suspect that the hon. Member for Stratford-on-Avon—or the right hon. Member for Birkenhead, if he drafted the Bill—tried hard to think of wording that was studiously neutral. Speaking as one who would be more inclined to vote yes than no, I do not consider this wording to be studiously neutral. My hackles are raised by the word "bound". Voters are to be asked:
"Should the United Kingdom be bound by the Treaty establishing a Constitution for the European Union?"
My hon. Friend Mr. Lazarowicz also felt that the question was not entirely even-handed and free from bias.
Those of us who think that the British people should be given the final say cannot support the Bill. We did not observe the process that created that question. How did it come about? Who was consulted? What are the precedents? Is the question modelled on referendum questions that have been asked in Britain, or across Europe? There may be perfectly good answers to all those queries, but I do not know what they are, and in a speech lasting an hour and 10 minutes the hon. Member for Stratford-on-Avon left us none the wiser. Unless we gain some understanding of where the question has sprung from, I shall certainly not be minded to give the Bill a Second Reading.
I understand that a best-selling book at Christmas was about grammar. It was called "Eats, Shoots and Leaves", and concerned the apostrophe. The hon. Member for Stratford-on-Avon might have done well to study that book before framing the question, because I think that it contains grammatical errors. I am not as concerned about grammar as my hon. Friend, who is far more learned in these matters, but I do not like the notion of being "bound" by the treaty.
The hon. Gentleman could argue that that is precisely what the treaty does—that it does what it says on the tin—and in one sense he would be right. We should, however, bear in mind the connotations of "bound". Someone who is bound is tied up and constrained. His freedom of movement and freedom to act independently are severely limited. The hon. Gentleman may say that that is exactly what he meant. Of course it is what he meant, for it is what he believes, although it is not what I believe. His belief, either consciously or subconsciously, affected the drafting of the question. He, or perhaps my right hon. Friend the Member for Birkenhead, has allowed his better judgment to be clouded.
There are two problems with the question. First, should any question be included in the Bill? I am open to persuasion, but I think that the answer is probably no. Secondly, is this question acceptable? In my view it is biased, and designed to elicit a "No" vote. Certainly it has negative connotations. Even if I were minded to support the principle of including a question in the Bill, I would not support this question.
There is one good reason for not including the question. Mr. Maples argued that the wording could be amended in Committee, and indeed on Report. We might find ourselves dealing with a dozen amendments with a dozen different wordings, ranging from what Conservative Members might prefer—"Do you want Britain out of Europe?"—to something more neutral, and from that to a question biased in favour of a "Yes" vote. We could debate all that for ever.
That is true, and the Bill will follow the usual route of a private Member's Bill. Debates will be timetabled—which does not mean that they can go on for ever, but they will have to take place on certain days.
"The Electoral Commission shall publish a report setting out when and how the referendum shall be conducted"— but not the question, because that has already been decided, and actually not when it will be conducted, because it has to take place within six months of the adoption of the treaty and on a public holiday, or perhaps not. The clause says that the report should include
"what information is to be provided to those entitled to vote."
This is a very interesting point.
I want to clarify one issue before my hon. Friend goes into further detail. One thing that concerns me is that the Bill says that the Electoral Commission "shall publish a report". It does not say when or how soon, so we have a time scale within which the referendum has to take place but we do not have a time scale that sets out at what point before the referendum the Electoral Commission report should be published. There may be provisions that I am not aware of, but it seems that, if we want an informed debate about the referendum, there must be sufficient time for that information to be provided. I am sorry that I seem to be boring Mr. Maples, but there has to be time for that information to be duly provided. If that is not sufficient, how can Parliament be satisfied that the population of Britain will have a real chance to discuss these very important issues?
My hon. Friend is correct. We have three parallel timetables, three parallel universes. The first is the timetable for the agreement of the actual treaty. It may be agreed this summer. It may not be. It may be months before the thing is agreed. Let us say that it is agreed this summer. We have summer holidays. It is a very long document. It may be a long while before it is signed. We do not know what adoption means, so we do not know when that particular timetable even starts. However, let us say that it starts in the summer. That is one hare that is off and running. The second hare that is off and running is the business of six months. My hon. Friend the Member for Hendon and I will not repeat the arguments. We have gone over that matter in some depth because of its importance.
The second timetable is off and running. Because the Bill is coming through the private Members' route, it is constrained. The dates are all set out and we know that its passage could last longer than that timetable. My hon. Friend Ms Munn has highlighted brilliantly the timetable within the timetable. We are working within a six months total. The hon. Member for Stratford-on-Avon said that six months is fair and gives us plenty of time to study and discuss all these things, but there is no timetable for when the Electoral Commission should produce that material. Within that overall six months, the commission has to do a job of work, decide what materials people need, what the format will be. Presumably, it works within its own statutes and consultation procedures. Then the report has to come back to the House. When it does so, it is laid by the Secretary of State in the form of regulations.
That brings me to a favourite bête noire of the Opposition. They always grudgingly say, "Why are we agreeing this before we see draft regulations?" We cannot see draft regulations in respect of the provision—we cannot see any regulations—until the Electoral Commission has done its work. It writes a report. It gives it to the Secretary of State. The Secretary of State drafts regulations and the regulations are considered not on the Floor of the House, where those important matters should be considered, but in Committee. However, we have absolutely no idea what they will be. We have subcontracted that to the Electoral Commission, fettering it all the way. We are being asked to give the green light to a process that deprives us of the chance to scrutinise those matters further on the Floor of the House. There is a structural flaw. Whenever the Government introduce a Bill and it is not specified when regulations will be laid and there is no concept of what will be in the regulations—they may not exist even in draft form—Opposition Members line up to condemn the Government for asking people to vote regulation-making powers through.
My hon. Friend may have skated over clause 3(1). Does he not find it peculiar, as I do, that the hon. Gentleman has taken the position that the electorate for the referendum should be the same as that for the European parliamentary elections? I understand that there are about 600,000 French nationals resident in the UK. If the Bill is about defending the British position in terms of the constitution, does my hon. Friend not find it peculiar that all other EU nationals will be able to vote when they may have their own national interests in the debate?
I had considered that point, and I would have come to it if I had had the time.
My hon. Friend is right. The provision is peculiar. Unlike the arrangements pertaining in elections to the House, EU citizens living in the UK are entitled to vote in European elections and they would be able to vote on the binding issue of whether Britain accepted or rejected the constitution. I do not know—the question has not been answered—whether other countries would also allow someone who is resident here and on the electoral register to vote in that country. For example, someone from Ireland might end up having two votes. They could be registered in Ireland to vote in domestic Irish elections. They would therefore have a vote in the Irish referendum, but they could be registered here for European elections because they lived here and paid taxes. They could therefore vote in two referendums and, although that might be a good thing, it is a bit odd. For the life of me, I do not understand why the hon. Gentleman has specified this electorate who are different from the electorate for UK national elections.
The position gets even worse. I think I am right in saying that a citizen of the EU can vote in European parliamentary elections in one country or the other, but not in both. However, if the referendums are on different days, a wealthy business man, who may have houses in six or seven different European countries or dual nationality, could hop around and vote in a series of referendums.
My hon. Friend extrapolates from my basic point.
Broadly speaking, I am pro-Europe and believe that it would be in Britain's interests to secure a constitutional treaty that respected our red line issues. That would be good for Europe and make a Europe of 25 work better than the Europe of seven or eight when many of the original treaties were drafted. I do not want to be a little Britisher on this issue, but the people who are eligible to vote in UK parliamentary elections should vote in the referendum. I am concerned about the possibility of people having serial votes around Europe and, although this may be tending towards Euroscepticism, I am concerned about hundreds of thousands of people—I am trying not to use the word "foreigners"—
I am concerned about the prospect of EU nationals who are not entitled to vote in UK parliamentary elections having a vote in the referendum.
The timetable that the hon. Gentleman sets out is dictated by his six months and not by the scrutiny process of Parliament. Like me, my hon. Friend believes that the proper process is to secure the treaty and have it debated on the Floor of the House of Commons by elected Members of Parliament and by Lords in another place. That is when we should go to a referendum. We should not subvert that process, but the hon. Gentleman adds insult to injury by proposing that people who are not entitled to vote in UK domestic elections should be able to vote in the referendum. That is puzzling, and I am grateful to my hon. Friend for allowing me to address that issue.
The hon. Gentleman has now been speaking for more than an hour. It is St. George's day and millions of English people want to hear the response of the Minister to my hon. Friend Mr. Maples and to the many others throughout the country who are concerned about the referendum and Government confusion on the issue. Is the hon. Gentleman intent on preventing that response from taking place?
I am intent on exposing the flaws in the Bill, and I am barely halfway through the process. I am sorry that I will not be allowed to do a thorough job in exposing the flaws, which is my only motivation—I do not want to prevent anyone from doing anything else.
Again, I can only assume that Mr. Chope has not contacted Mr. Forth. Our job in this Chamber is to scrutinise and legislate; it is not to provide vehicles for people to argue about general policy. The debate concerns this particular Bill, and my hon. Friend David Cairns has done the House a service by exposing the flaws in it, and I hope to continues to do so.
I fully intend to do so. I am mildly hurt by the implication that the Minister has more weighty things to say about the Bill than me. I am personally grateful to him, because without his championing a previous piece of legislation, I would not even be here. As an elected Member of Parliament, my views on the Bill are as valid as anyone else's. This is a private Member's Bill, not Government legislation, and I am a Back Bencher doing my job, which I was elected to do, by making a speech exposing its flaws. There is no time limit on my speech, and I regret that I have so few minutes left, because I want to address other major flaws.
Before moving on, I want to stick to the issue of the Electoral Commission report. Clause 3 states:
"The Electoral Commission shall publish a report setting out when and how the referendum shall be conducted"— apart from the question and the date, which will already have been decided—
"including what information is to be provided to those entitled to vote . . . The Secretary of State shall give effect to the provisions contained in a report of the Electoral Commission under subsection (6) by means of regulations."
The Bill does not allow the Secretary of State to reject any of the proposals—it only allows him to give effect to them—and he is bound by the report of the Electoral Commission.
Clause 4 states:
"There shall be paid out of money provided by Parliament"— taxpayers' money—
"any expenditure of the Secretary of State in consequence of this Act".
Let us think the Bill through. The Electoral Commission produces a report, with no timetable on when it should be produced—presumably it has its own statutory guidelines on how it consults and reports. Next, we make a report, which includes the information provided to those entitled to vote. Finally, we give that report to the Secretary of State, who enables the referendum to happen by regulation, and the taxpayer pays for it. The Bill asks us to provide the Electoral Commission with a blank cheque.
If the Electoral Commission were to decide that every person in the country should have a 60-minute video on Europe, for and against, that the video should be shot across the European Union, that Kevin Spacey should introduce it, that my hon. Friend the Member for Hendon should be in it, that it should feature the beauties of the European city of culture, which will be Liverpool in a few years' time, and that it should be narrated by Sir Sean Connery, the Secretary of State would have no say in the matter and must produce it. Who would pay for it? The taxpayer. The Bill does not state how much the referendum should cost. We are being asked to produce a blank cheque, which is irresponsible.
The Bill has two major financial implications: one is the cost of the new bank holiday—presumably a bespoke figure for that exists in the annals of the Department of Trade and Industry, but nobody has ventured it today—the other is the blank cheque to the Electoral Commission to come up with any scheme. The Electoral Commission might decide to stage an opera about European integration and tour the country with it, and British taxpayers would have to pay. My hon. Friends laugh because they think that I overstate the case, but this deeply flawed Bill does not fetter the Electoral Commission.
I regret to say that my hon. Friend is overstating the case, because the regulations are subject to approval by each House of Parliament. Let us suppose that the Electoral Commission produced a silly report, which the Secretary of State would be bound to bring to Parliament. We would then have an affirmative debate in both Houses on whether it should be ratified, and Parliament would reject it, in which case we would be back to square one. If Parliament rejects the regulations, there is a lacuna in the Bill.
My hon. Friend is right to interrupt my flight of fantasy and anchor me back to the real world, but he has also highlighted yet another flaw in the Bill. It does not say that the Electoral Commission shall produce a leaflet or present its report in some other limited form, nor that the Secretary of State shall reflect upon the commission's recommendations and bring forward the measures that he deems necessary for their implementation. The Bill says simply that the Electoral Commission shall produce a report, the Secretary of State shall bring that to Parliament, where it shall be implemented—or not, as my hon. Friend the Member for Hendon points out—by means of regulation.
Consider the impact on public opinion if the Bill were to receive Royal Assent after hundreds of MPs came in and voted for it because it reflects the will of Parliament—
To be frank, there are not many on our Benches either. Suppose, in all seriousness, that we sent the Electoral Commission to do the job of work. The Secretary of State—a profoundly serious person— would consider it, time would be spent preparing a report, which would then go to a statutory instrument Committee, where a handful of Members would decide its fate and the whole thing would grind to a shuddering halt. What would be the response not only of the rest of Parliament, which voted to set the whole train in motion, but of the people, who would see their long-promised referendum snatched away from them in a statutory instrument Committee sitting in Committee Room 13 on a wet Tuesday afternoon? Is that remotely the right way to approach the subject? Absolutely not. The Government's way is the right one—to argue for the treaty, secure the treaty, debate it on the Floor of the House, as such treaties are, and then move the debate out to the country.
I am listening carefully to my hon. Friend's argument, but in view of the limited time, he needs to cut to the chase. I really want to hear his view on the fact that the Bill makes no reference to ensuring that Parliament can debate the substance of any constitutional treaty before it is put to the country. The Opposition want any debate to be based on the myths that they propagate, rather than on proper parliamentary scrutiny. Will my hon. Friend say where the Bill provides for full parliamentary scrutiny to enable the public to hold a proper discussion on the issues?
My hon. Friend is entirely right. That that is not the process is not an accident, an oversight, a mistake or a flaw in the Bill; it is deliberate. A six-month timetable is set out, although we are not sure when it starts, and that is the process. It does not include the people's representatives debating the matter here, on the Floor of the House where everyone has a chance to have their say, it then going to the other place, and the debate then being taken out into the country. Parliament is deliberately set aside.
Not now—I have been generous.
My point is that it is possible to be staunchly in favour of a referendum—I am and so are all my hon. Friends: we want the people to be part of the process of scrutinising the treaty—but to believe that the Bill is utterly flawed and a complete dog's breakfast. The speech of the hon. Member for Stratford-on-Avon was entirely about the substance of the constitutional treaty. I suspect that he is aware—whether consciously or subconsciously—that the vehicle that he proposes to bring about a referendum is deeply flawed, which is why he has not marshalled the necessary number of troops to get it past a Division.
My hon. Friend is correctly suggesting that the Conservatives are not intent on providing for a proper discussion, followed by a proper referendum. This country's only referendum in relation to Europe was provided by the Labour Government in 1975. The Labour party is now offering people the opportunity to take a view on a constitutional treaty. It was the Conservative party that, in the Single European Act and the Maastricht treaty, denied the people that opportunity. Labour trusts the people; the Conservatives never have, even though they have had the opportunity to do so.
My hon. Friend is entirely correct. That is absolutely the case. I—
It being half-past Two o'clock, the debate stood adjourned.
Debate to be resumed on