Clause 2 — Addition to list of treaties

Orders of the Day – in the House of Commons at 4:41 pm on 27th February 2008.

Alert me about debates like this

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 4:41 pm, 27th February 2008

I beg to move amendment No. 13, page 1, line 12, after 'excluding', insert—

'(i) any provision imposing an obligation on the Parliament of the United Kingdom;
and

(ii) '.

J

Why are they debating detailed phrasing rather than why we haven't had a referendum?

Submitted by Jenny Scott-Thompson

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to discuss the following: New clause 5— Government opinion on adherence to subsidiarity

'(1) The relevant Secretary of State shall present to Parliament his opinion on whether a draft European Union legislative act forwarded to national parliaments under the Protocol on the Role of National Parliaments in the European Union complies with the principles of conferral, subsidiarity and proportionality, set out in Article 5 of the Treaty on European Union.

(2) This opinion shall include supporting evidence.'.

New clause 8— Bill of Rights 1689

'Notwithstanding any provision of the European Communities Act 1972, nothing in this Act shall affect or be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.'.

New clause 9— Supremacy of Parliament

'Notwithstanding any provision of the European Communities Act 1972, nothing in this Act shall affect or be construed by any court in the United Kingdom as affecting the supremacy of the United Kingdom Parliament.'.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The amendment raises an important issue in respect of the textual interpretation of what the European treaty says. I am sure that when the Minister replies, he will tell the House that it is his opinion that no provision in the treaty would impose an obligation on the Parliament of the United Kingdom. My reading of the text makes me doubt that that is the case.

The wording is, frankly, odd. It includes references to national Parliaments' which were placed for the most part—that was the intention—to emphasise the principles of subsidiarity. However, when one looks at them detail, one finds that they seem to make the national Parliaments subsidiary. Let me give some examples. The original wording of article 8C was:

"National Parliaments shall contribute actively to the good functioning of the Union", so that the principle of subsidiarity is respected. The tone is pretty patronising in that context, but it is surely for Parliament to decide what it may or may not wish to do. However, when the Minister went before the European Scrutiny Committee on 2 October, he emphasised that he thought the problem was one of drafting rather than of intent. He went on to say that changes would be brought about to the text before the matter was finalised, and indeed, they were. In at least two places where it appeared to impose a mandatory "shall" on national Parliaments, the "shall" was removed, although in one case it was not, and I shall come on to that.

The Foreign Secretary said that he considered that all member states understood that we were in favour of Parliament being clear about its responsibilities and fulfilling them. However, the ESC asked the right hon. Gentleman a question that at earlier sittings it had put to the Minister for Europe—should not the draft's use of the word "must" in respect of national parliaments be altered to "may"? The Government have never been able to secure a concession from their European partners to that effect, and it would be useful if the Minister could tell us why.

I shall give the House another example. The original wording of article 63 was that national parliaments

"shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality."

Again, the Government secured an amendment that removed the word "shall", although on this occasion it was not substituted by the word "may". One oddity of this matter is that, inevitably, we have been considering the English text of the treaty, but it is worth looking at the French text, which has equal validity.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I shall enlighten the Minister about the French text. I have referred already to article 8C and to article 63, which in its final form became article 61B. Nowhere in either article did the French text use the equivalents of "shall" or "may". I hope, Mrs. Heal, that you will forgive me for briefly using a foreign language in this place, but the French text of article 8C states:

"Les parlements nationaux contribuent activement au bon fonctionnement de l'Union".

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

David Howarth says, "C'est exactement la même chose", but I am afraid that what I quoted is "exactement pas la même chose", and I shall explain why.

First, the Minister must explain how, when the original text of the treaty was brought out in both English and French, the French text was as I read it out—that is, without the use of the words "peut" and "doit", which we render in English as "may" and "must". The French text adopted the neutral form that I have just described, whereas the English text used the expression "shall". The Minister cannot simply gloss over the fact that the two versions are very different. He must explain to the Committee why the translators of the text used those two different forms.

Next we have to ask whether the removal of the word "shall" makes any difference. I have read the French text again with care, and I do not think that it does. The Minister will know that French is a more elastic language than English, but that it has a more restricted vocabulary. I believe that, in their French form, the text of articles 8C and 61B conveys the force of the word "shall" even though the French equivalent—"doit"—does not appear in them.

On any reading, the treaty text is a very odd document, in both French and English. Indeed, it does not read like a treaty text at all: rather, it reads like a constitutional document that sets out the respective roles of national parliaments and EU institutions. The requirements that it lays down appear entirely mandatory.

We are considering an important issue because legislation is about words. The structure of our consideration of the treaty, with general debates and short periods to consider amendments, means that we have not had the opportunity to conduct some proper textual criticism, which several hon. Members, including me, have frequently applied to domestic legislation.

We are in an odd position in that we started with two texts in French and English that were supposed to be identical, we changed the English text, but not the French text, and the Minister now tells us that the English text expresses voluntary activity by national Parliaments, whereas my reading of the French text is that it could be interpreted as mandatory. I also see a mandatory element in the English text.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I agree with the hon. and learned Gentleman's point about textual analysis because the debate is about what the words mean. However, the tense in the French text is that used to establish roles and is neither mandatory nor permissive. It simply describes a new arrangement. There is no easy way to translate that into English.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I take the hon. Gentleman's point, but does that not highlight precisely the difficulty of the textual approach to the treaty, which was born from creating a constitution that was subsequently abandoned? It reads not like a legal definition of treaty obligations but like a constitution, with many implications for the way the relationships among the component parts operate in practice. If everybody agreed that that is what they wanted, it might not present any great difficulty, but we are not agreed, and there has been much polemic and argument about the extent to which national sovereignty and the actions of the House may be restricted as a result of the treaty.

I am always prepared to listen to the Minister, and I have read his comments to the Committees before which he has appeared, but the Government keep saying that Conservative Members are worrying about nothing. I am not so sure about that because I worry when I read texts that appear to be open to ambivalent interpretation. However, if the Minister is right, our amendment is innocuous.

Photo of Bill Cash Bill Cash Conservative, Stone

In "Alice Through the Looking Glass", Lewis Carroll writes:

"'When I use a word,' Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean—neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be Master—that's all.'"

That is the key question because the master is not to be this national Parliament.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend is correct. At the end of the day, the question is who is master in interpreting the treaty provisions. We must be prepared to make clear what is required to ensure that the treaty conforms, if not to our political viewpoint then to what the Government tell us that it is. That is why we have tabled the amendment.

Photo of David Heath David Heath Shadow Secretary of State

The hon. and learned Gentleman is right to say that there is inconsistency between articles 61A, 61B and 61C. They are consecutive articles, but two say "may" and one contains nothing but the present tense in the phrase "national Parliaments ensure". If that meant anything, it would be a statement of fact, and a description. However, it is not, as is borne out by arrangements in the House. We should be worried that we have no mechanism to date for enjoying the benefits of subsidiarity, which the treaty affects to provide.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman is right. Although unfortunately I could not be present in the Chamber yesterday, I read the speech of Ms Stuart, and she made precisely the same point.

Photo of Patricia Hewitt Patricia Hewitt Labour, Leicester West

I think the hon. and learned Gentleman is wrong about this and is making very heavy weather of it. Not only is article 61B, in both the French and the English versions, clearly a descriptive rather than a mandatory statement, but—this point has not yet been made—it specifically refers to the arrangements set out in the protocol on the application of the principles of subsidiarity and proportionality. The protocol rightly places on the Commission all the duties to inform national Parliaments of what it proposes to do, and national Parliaments may or may not choose to respond and express their views on whether those legislative proposals conform with the principles of subsidiarity. We should concentrate on how we in this Parliament ensure that the Commission observes the principles of subsidiarity, rather than worrying about the nonsensical suggestion that the Parliament is being mandated to do something when clearly it is not.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sorry to disappoint the right hon. Lady by disagreeing with her. As she will see, article 9 has preserved the word "shall". It states

"The European Parliament and national Parliaments shall together determine the organisation and promotion of effective and regular interparliamentary cooperation within the Union."

The right hon. Lady may be surprised to learn that in the French text of article 9 the word "doit", or "shall", does not appear. It states, in exactly the same terms:

"Le Parlement européen et les parlements nationaux définissent ensemble l'organisation et la promotion d'une coopération interparlementaire efficace".

Although the "shall" was preserved—I hope the Minister will tell us in a moment why it was retained in this clause whereas, apparently on the Government's insistence, it was removed from the others—I should like to know why that has had absolutely no impact on the French text. In a context that is mandatory, it continues to use a form of words that appears to be simply definitional. I must tell the Minister, and the right hon. Lady, that I think that is because as far as the French draftsmen were concerned, it did not make any difference, it has never made any difference, and it still will not make any difference to what the Government have done since then.

Photo of Denis MacShane Denis MacShane Labour, Rotherham

The hon. and learned Gentleman once asked me for a good translation of the word "racaille", used by President Sarkozy of people he did not like.

Photo of Denis MacShane Denis MacShane Labour, Rotherham

Possibly not.

I think that the hon. and learned Gentleman is making extraordinarily heavy weather of this. The plain fact is that "shall" also contains a future component, which is easier to use in English because we use gerunds and compound verbs more than the French do. This is the German version:

"Die nationalen Parlamente tragen aktiv zur guten Arbeitsweise der Union bei".

That, like the French and the English, is very clear. I really think that the hon. and learned Gentleman—whose knowledge of French I respect, but it is not complete—ought to back away, because he is not doing his case much good.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

When not one Member but two start talking about making heavy weather, I begin to think that I am probably getting somewhere.

I disagree entirely with the right hon. Gentleman. No explanation has been advanced as to why the text differs so markedly in the two languages. When my late mother used to tell me that I "shall" do something, I took that as a mandatory injunction, and on the whole it happened. The fact that it might have been couched in the future tense does not seem to me to matter a bean. The point is that our job as a Parliament in scrutinising and passing legislation is to ensure that it conforms with what we want to achieve. Therefore, I return to my original question. If the text is as the Minister appeared to state to the ESC in or shortly before October, the Government ought to welcome amendment No. 13 as it will reassure Members who are currently not reassured that there will be no mischief from the wording of the treaty in these areas. At the same time, if I understand the Minister's position correctly—I shall hear more about that shortly—in these circumstances it cannot do any harm to the Government's adherence to the treaty.

Photo of Bill Cash Bill Cash Conservative, Stone 5:00 pm, 27th February 2008

Will my hon. and learned Friend re-emphasise the point that interpretation of these words will be performed by the European Court of Justice, which I regard as the master in this case? It will determine what we may say, under section 3 of the European Communities Act 1972, and we cannot then disagree. That is part of the problem. The bottom line is that we must protect ourselves from that possible interpretation.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I entirely agree with my hon. Friend, and what he says pre-empts my next point. Ultimately, this treaty is justiciable and is open to the interpretation of the ECJ. We must make it clear now what we understand the treaty to be, and ensure that, were the interpretation of the ECJ to differ from that of the Minister, we properly protect the public in this country and this Parliament from being overridden or mandated to do anything.

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

My hon. and learned Friend outlines a highly plausible situation in which the ECJ has to arbitrate or decide. Is he worried by the treaty requirement on the Court to practise mutual sincere co-operation with the other institutions of the European Union, not with member states? In any dispute about this obligation between us and the institutions of the Union the jury is already rigged against us.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. Friend will recollect that in the crime and justice day debate I expressed the view that while the ECJ had many virtues it was in many respects the creature of the institutions that had created it and that in the light of its track record it appeared to have a clear agenda of enforcing, within the parameters set down by legislation, the acquis communautaire. Therefore, I agree with my right hon. Friend that under the treaty it does not have to put the views of national Parliaments or national sovereignty first.

We cannot, however, complain if we legislate badly. The power lies with us. I have made that point to some of my hon. Friends. I take the view that if we get ourselves into a mess in areas of EU law, it is in many cases entirely our own fault and responsibility, and not the result of some sinister conspiracy elsewhere. We tolerate sloppy legislation, and we fail to identify areas where our national interest might be jeopardised and to take steps—such as those that I currently propose to the Minister—that would solve problems and would, far from creating greater tension within the EU, go a long way towards making it run smoother.

Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

If the hon. and learned Gentleman had read the Hansard record of yesterday's debates or had been in the Chamber listening, he would have known that I dealt with the point raised by Mr. Heathcoat-Amory. As he says, it is stated that such mutual co-operation should be practised, but it is also stated that the institutions must act in the interests of the member states. He is, therefore, wrong to say that the institutions of the EU are not charged with that duty. There was a difference of opinion in the ESC, but a majority supported my view.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman makes an important point. I certainly was not seeking to suggest that the institutions of the Union were not operating in accordance with the interests of the member states. However, the interests of the member states are a collective expression. Within that, the interests of individual member states can be jeopardised, and they sometimes are.

Robust and active participation in the European Union does not preclude this Parliament—or, for that matter, this Government—from identifying important areas of national interest and standing up for them. I disagree with some of the things that the Minister and the Prime Minister say they achieved, but they argued at considerable length that that is exactly what they did prior to the signing of the treaty. Indeed, we have only to look at the treaty to see that other countries, such as Ireland and Denmark, did exactly the same.

Photo of Patricia Hewitt Patricia Hewitt Labour, Leicester West

I am grateful to the hon. and learned Gentleman for giving way for a second time on this point; it is clearly important to him. Article 8C is headed "National Parliaments contribute actively to the good functioning of the Union". Let us leave aside for the moment our disagreement, in which he thinks that that is mandatory and I think that it is descriptive. It goes on:

"by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the...Protocol".

As a distinguished lawyer, he must surely admit that the European Court of Justice could rule on whether a national Parliament had breached this—in my view—non-existent duty only if a case were brought. But brought by whom? By the Commission? Does he really believe in the bizarre fantasy—which Mr. Heathcoat-Amory clearly shares—that the Commission, which is given a duty in the treaty to keep national Parliaments informed, would take a national Parliament to the European Court of Justice for failing to express its opinion on whether the Commission had acted in accordance with the principles of subsidiarity? That is complete nonsense, and, in my view, the hon. and learned Gentleman should move on to something more substantial.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

As a lawyer, I have always tried to look for possible pitfalls and to find sensible ways of skirting round them. I tend also to do that when I encourage my clients to avoid litigation. It is a wise course of action, even if it does lawyers out of money from time to time. If I see an area of ambiguity, the first thing I do is highlight it so that the Minister has an opportunity to respond. Heaven knows I have done this often enough. I tabled 318 amendments to the Proceeds of Crime Bill because I thought that it was a highly ambiguous document. Indeed, it has since been shown to be woefully deficient in some areas of interpretation. We should also ask ourselves whether the ambiguity can be cured in a way that provides general reassurance without undermining the Government's primary intentions. What I find fascinating about the approach of Ms Hewitt is that she has not yet told me what is wrong with the amendment.

Photo of Bill Cash Bill Cash Conservative, Stone

My hon. and learned Friend might remember the seminal case of Costa v. ENEL. If I may, I will quote briefly from the ECJ's findings.

"The transfer by the states from their domestic legal system to the community legal system of the rights and obligations arising under the treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the community cannot prevail."

In other words, the root of what my hon. and learned Friend is saying—and in contradistinction to the assertion by Ms Hewitt—is that the European Court of Justice already has a view on its constitutional role, which is that, according to its assertions, domestic law cannot be allowed to prevail against Community law.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend is absolutely right to highlight the fact that there is Court authority in precisely the terms he identifies. Exactly where that will fall might be an interesting issue of academic speculation. However, as it appears—I have to accept the Government's word for this—that the Government certainly do not wish it to fall in the area of parliamentary sovereignty or, for that matter, of parliamentary action, it seems to me that spelling out clearly what the Government understand the position to be by accepting amendment No. 13 would be very wise. As I say, I wait to hear from the right hon. Member for Leicester, West what so irritates her about amendment No. 13 or what she thinks might be so damaging to our participation in the European institutions. I am at a loss to understand that.

Photo of Rob Marris Rob Marris PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office

Perhaps I can assist the hon. and learned Gentleman. I might be reading this differently from him, but article 13 of the treaty on the functioning of the EU states:

"In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals".

That is an obligation on the UK as a member state of the EU, and one that I welcome. The hon. and learned Gentleman's amendment, as I understand it, would remove that obligation.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It would remove it, but only in so far as anything in the treaty sought to impose an obligation on this Parliament to act in a particular way. One argument that has been put consistently, not only by the Government but by supporters of the EU—indeed, it is a view with which I have a considerable degree of sympathy when I approach it from a lawyer's angle—is that any surrendering of sovereignty by this House should be voluntary. Equally, if the House wants to take back any area of sovereignty it should be able to do so, although it might face consequences under its international treaty obligations. I have picked out the areas that concern me and highlighted the fact that I did not understand that it was the Government's intention to impose through these treaty obligations on Parliament to act in a particular fashion.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The right hon. Lady nods; perhaps there is a slight difference of opinion between her and Rob Marris. This country might not want to differ in any way from a position adopted by the EU. We might want to engage in a common statement of our intentions.

The Minister acknowledged when he appeared before the European Scrutiny Committee last year that there was an issue with the provisions that I have highlighted. The question that arises, before we get carried away by excessively nebulous concepts, is whether the Government have succeeded in curing the problem. My reading of the text—particularly when I read it in French, which is a slight advantage that I have from being conversant and fluent in that language—is that the Government have not succeeded at all. The ambiguity has been left open, despite the fact that the Government said that that was precisely what they wanted to close. Given those circumstances, amendment No. 13 or a similar measure could solve the Government's problem and reassure me.

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

My hon. and learned Friend has already quoted from article 9 of the protocol on national Parliaments, which requires this Parliament to co-operate regularly with other Parliaments in the EU. There is no other way of interpreting article 9. In future, we might not wish to co-operate with the European Parliament. History is littered with examples of Parliaments having disputes. It is a real possibility that a failure to co-operate could come before the European Court of Justice. We must protect our interests by ensuring that the wording is not ambiguous.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree entirely. I have no doubt that if the Minister wishes to provide an argument to show why my right hon. Friend is wrong, he will do so, but I have not heard such an argument yet.

The article that the hon. Member for Wolverhampton, South-West identified refers to the obligations of member states. He will appreciate from the way in which I have presented my argument that I am specifically interested in the obligations that appear to be imposed on Parliaments. Although member states and their Parliaments might be closely connected, they are nevertheless not one and the same thing. This House conducts its business not merely as a creature of the Executive, even though some of us would argue that we remain far too much under the Executive's tutelage and would like to remove ourselves further from it. However, the way in which the House works ultimately concerns our privileges as parliamentarians. Providing an adequate mechanism to reassure the public and hon. Members strikes me as rather a sensible idea, which is why I commend amendment No. 13 to the Committee.

Let me touch on the new clauses that are grouped with amendment No. 13. New clause 5, which my right hon. Friend Mr. Heathcoat-Amory tabled, would allow the relevant Secretary of State to present to Parliament

"his opinion on whether a draft European Union legislative act forwarded to national parliaments under the Protocol...complies with the principles of conferral, subsidiarity and proportionality" and to produce supporting evidence. Given the difficulties that we have been having with European Union directives, the proposal strikes me as immensely sensible. I shall wait to hear how my right hon. Friend develops his argument, but I hope that the Minister will be able to give the measure a positive response.

My hon. Friend Mr. Cash tabled new clauses 8 and 9. New clause 8 has a direct link to amendment No. 13 and relates to article IX of the Bill of Rights 1689. I am always a little hesitant about getting bogged down in the Bill of Rights because I am conscious that some of its provisions are, to describe them politely, rather old-fashioned. For example, I am not sure that the right for Protestants to bear arms suitable to their conditions has a great deal of relevance in the present day. However, it is absolutely right that article IX has been, and continues to be, of relevance to the independence of the House, because it provides:

"That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament."

This is a live issue. The measure has been quoted in litigation in the past decade. In fact, it is the bedrock on which parliamentary independence rests. My hon. Friend has thus made an important contribution to the debate by tabling the new clause.

Photo of Bill Cash Bill Cash Conservative, Stone 5:15 pm, 27th February 2008

My hon. and learned Friend might care to refer to the ruling by the former Speaker, Baroness Boothroyd, in respect of litigation on the Maastricht treaty. She made the ruling—and the courts backed off—when there was an attempt to challenge the ratification, as compared with the legality of what was being discussed at that time.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend is right. His memory and knowledge of these matters goes back a long way. It is correct that that was one aspect of an assertion of the rights under article IX of the Bill of Rights. Of course, what is sauce for the goose is sauce for the gander, and it is perfectly possible to envisage circumstances in which that might happen in another context in relation to the European Union. New clause 8 is important. I hope that the Minister will give it careful consideration and I wait to hear what he has to say.

New clause 9 relates to the supremacy of Parliament. Again, the Minister must address that important issue, which is tied in with the other amendments that we are considering.

I do not want to take up more of the Committee's time, but I come back to amendment No. 13 and repeat my challenge to the Minister and Labour Members who appear to think that we are dealing with abstract issues about which we should not bother. I do not think that they are abstract. Will they please tell me what is wrong with the amendment and why including it in the Bill would do any harm to the Government's intentions?

Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

The record of the European Scrutiny Committee makes it clear that we were exercised by this challenge, especially as it relates to the Bill of Rights and the word "shall". We believed that whoever drafted the English version could translate the French so that its effect was compulsive in the sense that, as Mr. Grieve said, it was a description of the reality of what the treaty would create. It may be that it was a throwback to the treaty for a constitution for the European Union—people keep referring to the original treaty as the constitution, but it was a treaty for a constitution—and was seen in that light by those who drafted it two or three years ago; and in the redrafting, some people may have kept that interpretation. We were slightly concerned that if we left in "shall" and did not insert "may", it would not be clear that there was no compulsion on Parliaments.

In the light of Ministers' evidence to us, especially the Foreign Secretary, we accepted that Ministers felt that they had removed the offending element of compulsion by removing the word "shall". However, as we said in our third and final report of the last Session, we were disappointed about not getting "may" in. That would have clarified the matter beyond doubt. Yesterday, in an intervention on the Minister for Europe, I related the fact that in a recent meeting of the Chairmen of European Scrutiny Committees throughout Europe, a Chairman from another country said "shall" and, when asked about it later, said, "But they must—it's in the treaty."

Fundamentally, that is because some Governments and some Parliaments see themselves as giving up their role to the European dimension. Having taken evidence from Ministers and discussed the matter both formally and informally with the Minister for Europe and Ministers in all the Departments representing this country, I do not believe that we have ever given up that position to Europe. I believe that Ministers will fight the corner, but it will have to be fought, because it is not clear that the other side has given up its position, either.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have read the hon. Gentleman's intervention yesterday. I was rather struck that the Minister did not answer his question, saying simply:

"It is clear—we are precise about this—that we responded to concerns that he raised. He has been fair enough to observe that in another place."—[ Hansard, 26 February 2008; Vol. 472, c. 938.]

However, he did not go on to explain why the Government had done so. That is what I hope the Minister will explain this afternoon.

Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

That is a helpful intervention. I have every confidence, because I do not only speak in this Chamber; I follow these matters up with Ministers—that is what Back Benchers do. The Minister is aware that some people in other countries see themselves as more federalist and are more willing to submit the idea that the phrase—even in English—"Parliaments contribute to" is a description of how they must act at all times, whereas we do not, this Minister does not, and, I believe, our Government do not.

In relation to "shall", we were certainly worried about the Bill of Rights. On how we should proceed now, we must accept that, in the negotiation procedure that created the treaty, there was some room for Euro-fudge. What we must be is "UK-firm" against the Euro-fudge, or we will end up in a position where, in practice, other Governments and other Parliaments will expect us to act as though we were compelled. That is why I continue to raise the matter, not only on behalf of my Committee members, but on behalf of Parliament. We want our Ministers to be firm. The Opposition Front Benchers want to hear how they will be firm. If they are not firm enough, I hope and believe that my Committee and this House will remain determined to put some backbone into the negotiations.

Photo of David Heath David Heath Shadow Secretary of State

May I put to the hon. Gentleman an alternative construction, which I have not heard mentioned, that relates to the issue of subsidiarity? Had the wording that national Parliaments "shall" ensure subsidiarity been retained, might it not have been to exclude the possibility of an Executive ensuring subsidiarity—in other words, conferring an exclusive role on Parliament? I believe that to be the intention of the legislation. The fact that it has been weakened by the removal of "shall" in this sense does not place an obligation on Parliament but removes a responsibility that we should enjoy. The House should ensure subsidiarity, not Members on the Treasury Bench.

Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I think that the hon. Gentleman is misinterpreting it. The answer to that was given by my right hon. Friend Ms Hewitt. There are sections that say that Parliaments "may" respond to the subsidiarity issue, and that is the correct interpretation. Having dealt during the past nine years with the Commission and the machinery of bureaucracy, I do not have the warm opinion of them that the hon. Gentleman has. When they say "shall", they mean to compel, not to empower; I can assure him of that.

I do not think that the amendments are necessary. The debate is necessary, because it gives the Government a chance to tell us how they will face the challenge if anyone comes to interpret the treaty in the way that it might be interpreted, which would be detrimental to the rights of Parliament and the people of this country.

Photo of Peter Lilley Peter Lilley Conservative, Hitchin and Harpenden

Surely the issue is not what the hon. Gentleman thinks, what the Government think or whether the Government are robust, but what the treaty actually means—namely, what the European Court of Justice interprets it to mean. That casts a shadow forward. If a Cabinet receives advice from the Law Officers that a provision means a certain thing, it is inconceivable that the Cabinet will do otherwise; I can assure him of that from my own experience. The issue need not even get to the Court before that strict legal interpretation carries effect, whatever the Government may wish.

Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

On the question of the role of the European Court of Justice and any Cabinet's interpretation of what it says, presumably the Cabinet would be at the European Court of Justice fighting our corner, not just waiting passively for a judgment.

I am honest about this. I believe that our team went to challenge "shall" and get "may", because they knew that that would win praise from anyone who was being critical. We were perhaps seen as being critical when we were not trying to be; we were just trying to be honest. I think that our team won "shall" and then tried for "may" and did not get it—in other words, those with whom they were negotiating would not give them two victories, saying, "You've got one; we're not going to give up on the other, so you have to take this." I know that the right hon. Gentleman has been there at the sort of negotiations that do not get one everything. I think that Ministers came back thinking, "We've got enough to satisfy Parliament" and perhaps to satisfy the European Scrutiny Committee, if that was what they were worried about, but at the end of the day they still felt that they could have come back with "may". However, we accept that they probably thought that they got as much as they could from the negotiation process. Now this Government and all future Governments will have to fight to make the interpretation that is beneficial to this Parliament apply in every case, because there is no doubt that others will try to win back a more compulsive interpretation of "contribute".

Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

I know that the hon. Gentleman cares deeply about the issue, but does it not remain the case, as my right hon. Friend Mr. Lilley said, that what matters is the interpretation that will be placed on those words? Did not the European Scrutiny Committee judge in the conclusions of its report, after the Government had tried and failed to get the changes, that

"The statement 'National parliaments contribute to the effective functioning of the European Union' is one from which an obligation can readily be inferred"?

Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

The Committee did say that, and I quoted part of that report yesterday. The point is that the obligation "can readily be inferred", and there will no doubt be those who wish to infer it, but they are not in the House, in the Government or in future UK Governments. It will be inferred by others who are trying to interpret the words in that way. What Parliament, the people who listen to and read our debates and I want to hear from the Minister is what show of strength the Government will give, and whether they will fight that corner and win on every occasion. That is why I do not think that the amendments are necessary, although they are useful, as they allow the Government to explain their position.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice 5:30 pm, 27th February 2008

It is a great pleasure to follow Michael Connarty. I agree with a great deal of what he said, but I put a slightly different interpretation on how the situation came about. It always struck me that there was never really any problem with "shall". It was always meant in a descriptive or performative way. The problem has come about because of the attempt at renegotiation. One could argue that the position is worse than it was when we started to try to renegotiate, because the resistance to the word "may" has apparently caused a problem with the interpretation of various articles that I did not think existed.

Without much doubt, "contribute" in article 8C is meant to be either a description of how things will work or, even less worryingly for the House, performative. In other words, when the things in paragraphs (a) to (e) happen, it constitutes the national Parliaments contributing

"actively to the good functioning of the Union".

There is therefore no problem even with an implied obligation, because it would be fulfilled by virtue of those things happening. The problem that amendment No. 13 purports to address is, sadly, largely of our own making. It is a red herring—and we have well and truly smoked this herring into its present state. The best solution would be to have a debate now, and for Mr. Grieve to withdraw his amendment. I am sure that the Government will offer reasonable clarification.

Photo of Bill Cash Bill Cash Conservative, Stone

I fear that I have to disagree with the hon. Gentleman. The significance of the words that we have been discussing—"contribuent" or "contribute", and "shall"—relates to the arena in which they are supposed to operate. On top of all the points that my hon. and learned Friend Mr. Grieve made, we need to concentrate on the words

"contribute actively to the good functioning of the Union", because essentially what is being said relates to the implementation of the treaties to achieve the functioning of the European Union. That in turn goes straight back to sections 2 and 3 of the European Communities Act 1972, which is the mechanism through which we carry out the provisions of the treaties by implementing them in our law, subject to the fact that European law shall prevail, through the European Court of Justice, in that interpretation.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I understand the hon. Gentleman's concerns, but if he reads article 8C all the way through he will see that that interpretation is not sustainable. Every paragraph in the article starts with a word such as "through", "by", or "by taking". Paragraph (a), for example, says that national Parliaments contribute to the good functioning of the Union

"(a) through being informed by the institutions of the Union".

I cannot see how that would give rise to any sort of obligation on national Parliaments. The provisions are a description of the ways in which national Parliaments contribute to the good functioning of the Union. I cannot see an obligation behind those words.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The hon. Gentleman says that, but there will always be a problem of that sort with human languages and courts. There will never be absolute certainty or clarity about any legislative instrument.

I turn to the other new clauses before us. I pay tribute to Mr. Cash for his new clause 8 on the Bill of Rights, but I cannot follow him on his new clause 9 on parliamentary supremacy. In new clause 8 he has come across a form of words and a way of dealing with a possible problem which is, in the immortal phrase, mostly harmless. The good thing about new clause 8 is that it concentrates on a traditional English way of dealing with problems by focusing on the remedy that someone might obtain, whereas new clause 9 is rather in the realms of theory.

However, I am not entirely convinced any more that article IX of the Bill of Rights in its present form is desirable. There are problems with a legislative assembly being entirely immune to legal review. That tends to lead to a situation of lawlessness where arbitrary power can be exercised and minorities can be oppressed. I would not go as far as the late Member for New Ross in 1881, who described what sometimes happens in the House as "unmitigated despotism", but there is a problem.

Nevertheless, the way to deal with that problem is certainly not to allow changes in article IX to come about by some kind of accident through changes in European legislation. If we were to reform article IX we should do so in a way that is proper and convenient for us across the entire range of possible legal problems, rather than only those that arise out of our relationship with the European Union.

The question to ask about new clause 8, which might be a problem in the minds of my colleagues, is whether it might prevent ratification of the treaty. I do not think it can. That problem arises in many of the amendments tabled by certain hon. Members, but not in this case. The argument against the new clause must be only that it is not necessary. It is already the case that nothing in existing European legislation threatens article IX. I shall be interested to hear from the hon. Gentleman whether he can point to any changes specifically in the Lisbon treaty that would have that effect. We have had the experience of the past quarter of a century with the legal position being fundamentally the same as it is now, and so far no obvious problems have arisen.

Photo of Bill Cash Bill Cash Conservative, Stone

As an immediate response, I give as a sort of example something said on the Floor of the House. In the proceedings in Parliament, subject to the rules of the House being enforced by the Speaker, a Member might use language that was detrimental to another Member of the House. The question of xenophobia might arise, although there is no definition of xenophobia in European legislation. Proceedings in the House which included a xenophobic phrase would not be questionable, subject only to the rules of the House on unparliamentary language. In the absence of protection under my new clause 8 for the Bill of Rights article IX, those proceedings could be challengeable in the European Court. One could think of many other examples.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The hon. Gentleman is right to point to the problem, put simply, being about whether anyone could obtain an injunction against the Speaker to prevent the Speaker from putting a particular question to the House. However, that is such an implausible circumstance that I cannot see how it could arise; the courts would have to have entirely abandoned not only the words of the Bill of Rights, but its entire spirit and structural importance. The hon. Gentleman has produced an excellent, elegant solution to a problem that does not yet exist. I shall be interested to hear his comments in support of his new clause.

I cannot support the hon. Gentleman's new clause on supremacy. The problem with the word "supremacy" is that it has too many different meanings. When people talk about supremacy, they often confuse political capability—a capacity to do things—with theories about which legal order can be changed by Acts of a particular Parliament.

Even in respect of that second interpretation, I sometimes get the impression that people who talk about the supremacy of Parliament want to get to a situation in which this Parliament can make European law. That is impossible; the legislative supremacy of this Parliament relates only to its ability to change the British legal order. We will never be in a position to change the European legal order. What keeps coming up in our debates is the question of what happens when those two legal orders clash. When that happens, it seems to me that there is nothing that we can do to alter the result as the hon. Gentleman wants.

Photo of Bill Cash Bill Cash Conservative, Stone

I respect the hon. Gentleman, who is a distinguished lawyer from Cambridge university. The problem is surely this: implementing the treaties made by prerogative, which are then translated into UK law through the combination of sections 2 and 3 of the European Communities Act 1972, effectively produces a circle within a vacuum of representation. On the face of it, we cannot disagree with the arrangements; we cannot specifically—so it is said—amend the provisions, because we are bound by those sections of the 1972 Act. That is where the problem lies and where the centre of this legal conundrum's gravity exists. We have to break free from it.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I see what the hon. Gentleman is saying, but we are bound by our own Act; we have decided that that should be so. We could always decide not to be bound by it, but until then we are in the European legal order, which decides its rules by its own procedures. We cannot change the European legal order; it can change its rules only by its own procedures. We can, however, change the rules of the legal system of this country, and that always includes the possibility of repealing the 1972 Act and withdrawing from the entire structure.

Photo of Bill Cash Bill Cash Conservative, Stone

This exchange is a useful introduction to the whole question. It does not necessarily follow that repeal would be necessary; perhaps only an amendment would be necessary. In those circumstances, the prospect of amendment is most emphatically understood to be a possibility in respect of House of Lords judgments that I shall cite later, if I get the chance.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The hon. Gentleman will presumably quote cases such as McCarthys Ltd. v . Smith, in which Lord Denning said that if this Parliament were to pass an Act incompatible with European law, and yet not withdraw from the European Union, the English judges would follow what we say. That is certainly one view; there are others. Professor David Feldman, who, among other things, is professor of constitutional law at Cambridge university—he used to work in this House—suggested that what might happen is that the English judges would refer the question to the European Court of Justice, which would then, working within its frame of reference, come to a different decision. That was the point that I was trying to make about there being different legal orders. We are supreme within our own legal order, but not somebody else's.

Photo of Bill Cash Bill Cash Conservative, Stone 5:45 pm, 27th February 2008

Will the hon. Gentleman confirm that in the Factortame case, for example, Lord Bridge clearly stated that we did what we had done in this House on a voluntary basis, as my hon. and learned Friend Mr. Grieve said earlier? That is the key point. The 1972 Act is a voluntary surrender. The issue therefore becomes circular, and ultimately a matter of political will, but it must be addressed within a proper legal framework.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I agree with the hon. Gentleman to this extent: it is our doing that we are in this club. While we are in the club, we are bound by its rules. If we object to the rules, we can leave the club, but we cannot ourselves, by ourselves, change those rules—they can be changed only according to the rules of that club.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree with the hon. Gentleman's broad premise, but it seems to me that there is a degree of flexibility in the way in which we decide to adhere to those rules. That is one of the things that we are teasing out in this debate. It is possible to alter that so as to ultimately make it clear that, were a conflict to arise, it would be a decision of this Parliament whether we wanted to break the rules, rather than a decision at another stage by the domestic courts. To that extent, there is a considerable amount of flexibility even in the European treaty, which I have recently been re-reading. We have to honour our treaty obligations under the 1972 Act, but how we go about that is left very much to our own domestic circumstances to decide.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I suppose that one response to the hon. and learned Gentleman is that we can attempt to breach our treaty obligations, but whether we succeed in doing so will be up to the courts. We can certainly withdraw from the treaty—the Lisbon treaty explicitly allows for that—but I am in no doubt that we were able to do that all along.

Another problem occurs to me in relation to the new clause on supremacy. The idea of supremacy is not really a rule within our constitutional order, but a presupposition of our constitutional order. Let me illustrate that. What if the judges were to do something which very occasionally some of them have suggested that they might do—change the order of priority between the supremacy of Parliament and the rule of law? All along, since the establishment of the supremacy of Parliament, judges have ultimately given way to what this Parliament says, even when that violates their ideas of the rule of law. But what if they were to reverse that? Could we, as a Parliament, re-establish the supremacy of Parliament by an Act of Parliament? The answer is obviously no. If we tried do that once the judges had come to a different presupposition, they would simply say that that presupposition was no longer the law. It is a question of the status of the supremacy of Parliament, which is, if anything, a rule of the common law. We ourselves, by passing amendments to Bills, cannot do anything about it. We cannot give it away either. We cannot give away our supremacy, and we cannot regain it if we lose it.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

We are touching on deep thoughts within our constitutional understanding of these matters. The question that surely arises is: who creates the judges, and by what authority are they judges? The hon. Gentleman will recall that on taking the Crown of England, William culled the judges and made sure that he had those who would pursue the interests he judged to be right. This House ultimately has the power to remove the judges, so therefore, sovereignty surely lies here.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The hon. Gentleman describes what is possibly the ultimate constitutional nightmare. It is a nightmare that is occurring right now in Pakistan, and it is not entirely clear to me that the Government and Parliament are on the right side in that particular debate.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Gently teasing the debate back in the direction of the amendments, the only instances in which it has been suggested that a circumstance might arise in which United Kingdom courts, particularly the House of Lords, might effectively strike down legislation or order its disregard, are those where the legislation fundamentally undermines human rights or basic common law and constitutional principles. That has nothing whatsoever to do with our relationship with the European Union.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The hon. and learned Gentleman is probably right about that. The circumstances in which that would arise would be the use of ouster clauses—excluding the jurisdiction of the courts and keeping judges out of things. That situation could in theory arise in the circumstances that we are discussing. I have raised those points merely to illustrate the problem of using the word "supremacy" in a change made to a Bill. It is not a word that can be used with any precision.

New clause 5 seems an entirely sensible suggestion. The Government should come to the House to explain in what way proposals are in line with principles of subsidiarity, and so on. I might quibble with the word "evidence" in the new clause. It is not a matter of fact or evidence, but of argument and reasoning. The drafting is not perfect, but the proposal seems entirely right.

The debate on these topics is worth having, but apart from new clause 5, I am not certain that the new clauses would add anything useful. In some cases, were they to be passed, they might be quite difficult to interpret. Nevertheless, I look forward to the Minister's reply.

Photo of Patricia Hewitt Patricia Hewitt Labour, Leicester West

It is a great pleasure to follow the very thoughtful and interesting contribution of David Howarth, who took us off into a wonderful constitutional theory seminar worthy of Cambridge university. It was absolutely fascinating.

Mr. Grieve has repeatedly asked me to say why I do not support amendment No. 13, and I have similar reasons to those advanced by the hon. Member for Cambridge. It is a red herring and it is not necessary. I do not always object to redundant clauses in a Bill where they are genuinely included for the avoidance of doubt, but on this occasion, the hon. and learned Gentleman's amendment raises—no doubt, quite deliberately—a question about whether the institutions of the European Union, notably the Commission, are trying improperly to place duties on this Parliament. I simply do not accept that articles 8C and 61B do that.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The right hon. Lady needs to address the history of the text, which I touched on, and the curious discrepancies between the English and the French versions, which are striking, particularly because they seem to give rise to very different interpretations of the same words. I urge her to consider what is wrong with amendment No. 13. She says that it is a red herring, but is it a damaging red herring given what she and the Government wish to achieve? I do not think so. In those circumstances, given the ambiguity, I would have thought that she would be racing to support the amendment, so as to provide reassurance to those hon. Members who are anxious about the matter.

Photo of Patricia Hewitt Patricia Hewitt Labour, Leicester West

I regret to say that I will not be racing to support the amendment, although perhaps we should wait and see what my hon. Friend the Minister has to say on the subject.

I am not sure about racing to support new clause 5, but Mr. Heathcoat-Amory might be surprised to learn that I find myself in great sympathy with it. Given the interesting debate that we had yesterday about how Parliament could strengthen its scrutiny proposals by fulfilling the important function of looking at proposals for legislation that come from the European Commission and making a judgment as to whether they are compatible with the principle of subsidiarity, it would be useful for the appropriate Secretary of State to give his or her view to Parliament—not to insist—to help it form its view on whether the Commission was in fact respecting subsidiarity in coming forward with particular proposals.

There is a parallel between what the right hon. Gentleman seeks to achieve in new clause 5 and what the Human Rights Act 1998 does. When a Secretary of State brings forward a Bill to the House, he or she has to certify that it is compatible with the provisions of the Human Rights Act. As I know from my experience as a Minister, that is an important responsibility and it requires Ministers to take advice, satisfy themselves personally that a Bill is indeed in compliance with the Human Rights Act, and if it is not, to make the necessary changes before it comes before Parliament or explain to Parliament why the Government seek to legislate despite the Human Rights Act. Although the parallel is not exact, new clause 5 would be helpful. My hon. Friend the Deputy Leader of the House, who recently made proposals on how we could strengthen the House's scrutiny provisions, might want to consider what the right hon. Gentleman seeks to achieve in new clause 5 and take it on board as part of the package of proposals that she recently announced. I would be grateful if my hon. Friend the Minister could comment on new clause 5 and my suggestion in particular.

Finally and briefly, I do not pretend to follow all the sophisticated arguments with which the hon. Member for Cambridge explained his opposition to new clause 9. My opposition to it is rather simple. What Mr. Cash seems to be doing—I assume this to be the purpose of new clause 9—is trying to reverse the supremacy of European law on matters that fall within the European legal order by reasserting, on all matters, the supremacy of Parliament. As I argued yesterday, the European Union is precisely an institution within which we, the member states, pool sovereignty on certain issues because we believe that to be the best way of achieving our common objectives. To that extent, the sovereignty of Parliament is indeed somewhat reduced, because we have accepted the supremacy of European law, which we, through the Government and the Council of Ministers, have a large part in shaping. In that respect, we have accepted that European law is supreme.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

We are talking about something that is central to our constitutional history and our constitution, yet we are going to dispose of the matter in two and a half hours. This theme has run through all our debates. The supremacy of Parliament cannot be lightly flipped away on a presumption of "how" or "what", or on the basis that we have decided on a new constitutional order, because the British people have never been invited to discuss such an order. The supremacy of Parliament has been the lifeline by which our Parliament has arrived at a democratic national society that reflects the will of the British people. That is what concerns me when I hear people saying that we have entered a new order and temporarily "surrendered"—or however one wants to put it—a concept that is so basic to our liberty.

Photo of Patricia Hewitt Patricia Hewitt Labour, Leicester West 6:00 pm, 27th February 2008

I have great respect for the hon. Gentleman, as I think he knows, but the supremacy of European Union law on matters that are properly within the scope of EU law has been a feature of the European Community since before we joined it. It goes back for decades: it was not created or invented by the Lisbon treaty and it is not something that we are tossing away in 10 minutes or a few hours of debate.

My objection to new clause 9 is quite simply that it seeks to reverse a central principle of the EU and our membership of it. Of course, that is precisely the view of the hon. Member for Stone, who does not believe that we should be a member of the EU, but I disagree. The British people voted to join the Common Market and now, through a series of treaty amendments—we should recall that the Conservative Government were responsible for the most important ones—it has become the European Union, which is not an issue that we should be trying to reverse.

With those remarks, I hope that I have explained why I will not support this group of amendments, but I hope that the Government will seek to carry forward the intent behind new clause 5.

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

I rise as a non-lawyer to trespass on a series of legal minefields. I recall the line in one of Shakespeare's history plays when at the start of a riot, Dick the Butcher says:

"The first thing we do, we kill all the lawyers", not a course of action that I would recommend, if only on account of my hon. Friend Mr. Cash in his place behind me and the kind welcome given to my new clause 5 by David Howarth, my hon. and learned Friend Mr. Grieve and, indeed, Ms Hewitt, who has just concluded. It seems that my modest proposal has gained a degree of cross-party alliance, which I hope will commend it to the Minister when he replies.

Before I speak to my new clause, let me touch on amendment No. 13, which I strongly support. It is wrong for this Parliament to be placed under any sort of legal obligation by a treaty, so the wording is very important. The word "shall" persists in the article on the role of national Parliaments, so we shall be required to co-operate with the European Parliament and other Parliaments and one can envisage a situation in future when we may wish not to co-operate. It is risky for the legal obligation to apply, particularly when disputes are decided by the European Court of Justice—an activist, interventionist and centralising Court that takes it cue from the existing requirement for ever closer union. Indeed, I have already drawn attention in an earlier intervention to a new requirement in the treaty whereby the Court as an EU institution will have to practise "mutual sincere cooperation", not with member states or national Parliaments but with the other institutions of the EU, including the European Parliament. That seems very dangerous.

The wording in article 8C has been modified, and the word "shall" has been taken out—although not in the French version, as my hon. and learned Friend the Member for Beaconsfield noted. That simply creates confusion and ambiguity. It is worth reading out the sentence from the European Scrutiny Committee report on that:

"Given its constitutional significance, we must emphasise that this is not an area in which any ambiguity is tolerable and we shall look to the Government to ensure that its original undertakings are met in any new text."

It is interesting that the Committee described the matter as of constitutional significance, because it undermines the Government's attitude that the treaty has been downgraded from a constitution to simply an amending treaty. Ambiguity is not tolerable. Whether it is from feebleness of negotiation or from a deliberate belief that national Parliaments should be part of a European legal order, the Government failed in that respect.

It seems to me—again, as a non-lawyer—that the phrase in article 8C cannot simply be descriptive and refer to a state of affairs whereby national Parliaments contribute to the functioning of the European Union. This is a legal text. It is designed to create obligations and responsibilities. It is not a text from an observer status. It is designed to do something—to change things—and it is almost certain that the drafters regarded it as conferring a new obligation. That is what the Court, in my view, will follow. It is right that the Government return to the matter and at least give an account of why they did not discharge their original undertaking to the European Scrutiny Committee to remove the ambiguity completely by inserting the word "may" rather than "shall".

New clause 5 would reinstate a requirement that was in the original European Union Bill to make the Government justify all new EU proposals on grounds of subsidiarity. It would add conferral and proportionality to those grounds. However, it is a reinstatement, because that Bill, which received a Second Reading in 2005 and was withdrawn only when the French and Dutch referendums destroyed the constitutional treaty, contained a similar clause. Is it not appropriate to reinstate that proposal? That is the force of my new clause.

I should say at once that I have no real faith in the subsidiarity principle. The European Scrutiny Committee, of which I am a member, sees many proposals that are pretty clear breaches of subsidiarity, which is the principle whereby the European Union legislates only when the action in question has to be taken, or can only be taken properly, at EU level and cannot be done adequately at national level. Almost at random from my file, I pulled out proposals that came to the Committee. One, of a year or two ago, proposed action at EU level on violence at work. That is obviously a serious problem and we all want to deal with it, but it was not clear why the EU should legislate on that when it was clearly a breach of the subsidiarity principle. We corresponded at some length on that. What is interesting is that the Commissioner at the time, Commissioner Dimas, justified EU action on the grounds of

"awareness raising, information, exchange of good practice and practical guidance."

If those are the reasons to justify EU action, there is no policy area in which such action could not be justified as there is always scope for the exchange of good practice.

Another legislative proposal to come before the ESC was for a programme to counter violence against children. Again, the Committee wondered what added value was supplied by adopting an EU-level approach, and we asked whether the proposal breached the subsidiarity principle. The answer was that the proposed action was intended to "identify and disseminate" best practice.

A more recent example was rather topical, in that it was about the assessment and management of floods. The Committee wanted to know how river flooding in England was a matter for the EU. We asked what would be added by EU action but, again, it was never explained. The ESC suggested that some EU action could be appropriate when a river crossed the boundary between member states, and we noted that there was such a river in Northern Ireland. However, that was not good enough for the EU, which was intending to tackle all river flooding, and the assessments thereof, by means of EU action that satisfied the subsidiarity principle.

It is not difficult to see from those few examples that the principle of subsidiarity is almost meaningless. The detailed protocol on subsidiarity has been a feature of EU law for more than 10 years but, given the widespread breaches, I do not have much faith in the ability of the EU or the ECJ to police the system.

The treaty contains one innovation. Its proposed yellow card system would allow national Parliaments collectively to object to a proposal for legislation on the grounds of subsidiarity. That proposal was advanced in the Convention on the Future of Europe as an extension of the rights of national Parliaments, but it was nothing of the kind. National Parliaments—and the ESC as well—already lodge objections on the grounds of subsidiarity. We never make any progress: for example, the EU was required only to review the yellow card proposal, but not to withdraw it.

The British Government wanted a much stronger, red card system whereby a proposal would have had to be withdrawn if national Parliaments objected to a proposal on the grounds of subsidiarity. The system that we proposed failed, of course.

If I may, Sir Alan, I should like to suggest the adoption of a new convention in our debates. When we objected to something in the Convention on the Future of Europe, the Government almost always ended up objecting to it too. The same thing continues to happen—although the difference is that we can maintain our objections, whereas the Government must pretend that they never had any. Well, we were all on the same side in the Convention on the Future of Europe: we failed, but the objection remains valid that the treaty contains no real, new powers for national Parliaments.

We now have what is called the orange card system. The colour has been changed, but the proposal could almost be called a green card, or a green light, for all the difference it would make. Under the new system, if a majority of national Parliaments object to a legislative proposal on subsidiarity grounds, and if they are joined by a majority in the European Parliament, the proposal has to be reviewed and could be withdrawn.

However, if so many people and national Parliaments object to a proposal, it will be withdrawn anyway, on other grounds. No proposal could succeed if it was opposed by a majority of member states and European parliamentarians. The subsidiarity principle is therefore largely meaningless, and it is certainly not much of a safeguard. Any case is to be decided by the ECJ, but no one can recall an occasion when the Court decided against a proposal on subsidiarity grounds. The question that needs answering is whether national Parliaments can object on the grounds of subsidiarity to the European Court of Justice, which is the supreme arbiter in the matter. Again, there is an ambiguity. The Committee that deals with European matters in another place raised it with the Government and received no clear answer. We do not know whether Parliament—or the Government—can make an objection on the grounds of subsidiarity.

There are no additional powers for national Parliaments. Meanwhile, powers are haemorrhaging from Parliament upwards to the European Union in almost every aspect of policy. New clause 5 would require the Government to justify EU proposals not only on subsidiarity and proportionality grounds but on that of conferral. Conferral is the principle whereby the EU enacts only measures that national Governments and member states grant it the power to enact. The problem is that the division of powers between member states and the European Union in the treaty has been determined decisively in favour of the European Union. The principle of conferral, which provides that all powers remain with national Governments unless they have been conferred, has been overtaken by provisions that deal with exclusive and shared competences.

The origins of those provisions go back to discussions on the Convention on the Future of Europe, where they were immediately perceived to be key matters. After all, constitutions divide powers—between states and the federal Government in the case of the United States, and between member states and EU institutions in the case of Europe. Those provisions have been included wholesale in the treaty of Lisbon and it is therefore a constitutional measure, whatever the Government say.

When considering the Convention on the Future of Europe in 2002, a working group was set up to look into the matter. It produced a report, which was highly sympathetic to the position of member states, possibly taking its cue from the suggestion in the Laeken declaration that some powers should revert to member states. The working group examined and was critical of article 308, which is the flexibility clause—sometimes called the rubber article. It grants the power by unanimity in the Council of Ministers to create new powers that the treaty does not contain. That is highly controversial and means that the treaties, including the treaty of Lisbon, will not be limiting because article 308 endures in a slightly amended form in the new treaty. Any temporary Council of Ministers could agree to move into new territories and acquire new powers not seen by those drafting the treaty.

The working group was critical, and that created consternation in the upper reaches of the convention—among the presidency and the secretariat, who ensured that none of the proposals appeared in the final document. Instead, the definition of shared competences endured. That definition is curious. Shared competence allows member states to legislate in many matters only if the European Union has not done so. To put it the other way around, as soon as the European Union legislates in any policy areas, member states lose their ability to legislate or decide. That is an odd definition of sharing. If I were to share a meal with someone on that basis, they could eat the lot and give me nothing yet claim that they had shared the meal. In truth, national Parliaments are given only a residual power to legislate.

Nor is the list definitive or exhaustive. It specifies 11 policy areas, some of which—such as freedom, security and justice—are very general, but it also states:

"Shared competence... applies in the following principal areas".

That is the worst of all worlds. The article gives the European Union substantial new powers without limiting them in any way. My new clause applies here as well. It was not just me who objected to the wording; the Government objected to it, and we both lost. It is in the treaty. I can maintain my objection, but the Government must now defend what they regarded then as indefensible.

Then there are the areas of exclusive competence, in which member states cannot legislate at all and the principle of subsidiarity therefore does not apply. We discussed fisheries yesterday, so I will not repeat those arguments, but competition policy has also been asserted as an area of exclusive competence, and my new clause applies to that too. The Government did not like the proposal. but it was approved. They lost, and now they must pretend that they do not mind it after all.

International agreement is a significant new power for the European Union. When the negotiation and signing of international agreements becomes a matter of exclusive competence across policy areas such as the environment, transport, energy and crime, this country will not be able—and therefore this Parliament will be forbidden—to conclude or negotiate such agreements with third parties or international organisations. That is an enormous extension of the powers of the European Union.

The exclusive competence and shared competence clauses have huge implications for the powers of the House, and also for the supremacy of EU law. Other new clauses in the group deal with the supremacy and I will allow my hon. Friend the Member for Stone to make the case for them later, but let me say now that supremacy is asserted not just in declaration 17, which takes the case law of the European Court of Justice and inserts it in a treaty, but through the shared and exclusive competences.

I was puzzled when the hon. Member for Cambridge said that we were supreme in our own legal order but not in the European order. How can we be supreme in our own legal order when the national Parliament will be entirely and completely forbidden to legislate in areas of exclusive competence, and will be forbidden to conclude international agreements with third parties?

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice 6:15 pm, 27th February 2008

The obvious answer is that we are supreme because we can free ourselves from all those obligations simply by repealing the 1972 Act.

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

I am glad the hon. Gentleman concedes that that can be done. In his speech he outlined a different scenario, in which some judges would send that decision to the European Court of Justice.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

Let me clarify what I said. I was responding to Mr. Cash, who described circumstances in which we had passed legislation that was incompatible with our obligations but had not withdrawn. It is possible that, in such circumstances, the judge might follow our law or the European legal order, but that does not preclude withdrawal as the solution to the whole problem. That is our prerogative, and it is the way in which our supremacy remains.

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

I think it follows from what the hon. Gentleman has said that if we pass the Bill and ratify the treaty—which hands over legislative supremacy to the European Union in the areas that I listed—we can reverse that only by withdrawing completely from the European Union. I want to take the slightly less drastic step of amending the Bill and the treaty to establish the supremacy of this Parliament. My new clause would require the Government regularly to explain how powers have been transferred from this Parliament thus, in my view, undermining self-governance. They would have to do that every time the EU advanced a proposal for legislation or decision making. That would also never allow the Government to forget that these powers have been transferred without the consent of the public, if they deny them a referendum.

Photo of Bill Cash Bill Cash Conservative, Stone

I wish to begin by drawing an historical comparison with an analogous time when people decided what laws they wanted their Parliament to exercise: the Putney debates, compared with which our debates are pretty tame. Much concern was expressed in the great Putney debates about who governs us and how; matters were dealt with in a manner that befitted their importance.

We have had an interesting debate, and I congratulate Labour Members on their contributions to it. We are discussing hugely significant questions. I want to concentrate on new clauses 8 and 9, which I tabled. I endorse the arguments of my hon. and learned Friend Mr. Grieve on amendment No. 13 and the customarily perspicacious remarks of my right hon. Friend Mr. Heathcoat-Amory on new clause 5. I also pay tribute to the contribution of Michael Connarty, who has extensive knowledge from his extremely good chairmanship of the European Scrutiny Committee. I have not mentioned everybody, but I should add that I enjoyed the perambulations around the question of supremacy of David Howarth, although I do not agree with him on that—but, not unnaturally, I do agree with him on the Bill of Rights question.

This is not just a legal debate; it is a debate about the political will of the nation as expressed through the representatives in this House on behalf of the voters of this country. That is the measure of the importance of the debate. It is also about the question of whether we are able to demonstrate and reassert in the context of this Bill the principle of the supremacy of Parliament. That is not an abstraction; it is about essentially practical matters, as I shall explain. Against that background, let me also say that, with the leave of the Chair, I shall press new clauses 8 and 9 to a Division; I want to put that on the record, as I understand that that is a necessary formality.

I wish first to refer to some comments of Edmund Burke, the great Conservative philosopher-in-action and politician and in many respects the founder of the Conservative party, in his famous essay, "Reflections on the Revolution in France" of 1789. William Pitt, whose biography our shadow Foreign Secretary has recently written, was then Prime Minister. Edmund Burke's words—which I paraphrase slightly—are worth bearing in mind. He said that they

"will pull down more in half an hour than prudence, deliberation and foresight can build up in a hundred years".

He went on to say that

"the best legislators have often been satisfied with the establishment of some sure, solid and ruling principle in government...and, having fixed the principle, they have left it afterwards to its own operation...By their"— the politicians'—

"violent haste and their defiance of the process of nature, they are delivered over blindly to every projector and adventurer, to every alchemist and empiric."

What he meant by that was that it was possible, in a very short time, to pull down a whole constitution. I believe that, for practical purposes, that is what we have been doing with this Bill—not only in the manner in which our discussions have been truncated but in the impact that it will have on the constitution of this country.

Photo of Adam Afriyie Adam Afriyie Shadow Minister (Science and Innovation) 6:30 pm, 27th February 2008

My hon. Friend is making a clear and eloquent case. He has cited Edmund Burke, and it seems to me that, if, under the treaty, we wished to negotiate a policy that had been proposed by the European Commission, the only way to state our negotiating position with any strength would, in many cases, be to threaten to use the European Communities Act 1972. The treaty might well lead to the break-up of the European Union, rather than to the furtherance of the Union that is desired.

Photo of Bill Cash Bill Cash Conservative, Stone

Indeed. I made that very point yesterday in the debate on competences. This attempt to press everyone into this compression chamber will produce tensions and diversity, particularly if the economies of Europe do not work according to the plan laid down by the bureaucrats.

To carry forward the historical connection with William Pitt, I recall that, in his famous Guildhall speech, he said:

"England has saved herself by her exertions, and will, as I trust, save Europe by her example."

I believe that that is extremely relevant to this debate, however relatively sparsely attended it might be—certainly on the Labour and Liberal Democrat Benches. We are talking about our own Government, and we have to remember that the Bill will implement in United Kingdom law all the existing treaties, with the accumulated functions and proposed amendments, which, as the European Scrutiny Committee has clearly stated, are substantially equivalent to the original constitutional treaty.

I am not going to go right the way down that route, however, as I believe that that case has been thoroughly examined, but I want to repudiate what the Prime Minister said, yet again, at Prime Minister's questions today about the abandonment of the constitutional concept. So many statements have been made by other leaders in Europe to contradict him that I do not need to repeat them all now. They are on the record.

I sometimes make the point—and I am open to correction on it, by myself, among others—that, when we say that we are implementing a treaty in UK law, that is actually not quite correct, legally and constitutionally speaking. It is the manner and form in which we translate the treaty into an Act of Parliament, but subject to the 1972 Act through the operation of sections 2 and 3. For practical purposes, by using our Acts of Parliament as a vehicle, we are, in a circular way, putting into European law the provisions of the treaty that have been agreed by prerogative.

It so happens that the provision is made through a UK enactment and is justiciable by the UK courts. [ Interruption. ] If the hon. Member for Cambridge wishes to intervene, I am happy to let him do so. Such a provision is justiciable in the UK courts and is therefore an Act of the UK. I have no doubt about that. Because we have voluntarily surrendered through sections 2 and 3 of the 1972 Act, in the terms of Lord Bridge and the Factortame case, we have effectively imposed voluntarily on ourselves the European legal order as an incubus within the Act of Parliament.

The problem is therefore very simple. We are creating a kind of façade, of which we need to be very aware. There are those who will argue that we cannot hereafter amend any of those enactments, for the reason that I have given. I disagree profoundly. That lies at the heart of what I am about to say. I also believe, particularly with reference to new clauses 8 and 9, which are supported by more than 40 MPs, that the question is raised of the significance and value of Parliament to the voters and the country.

Let me get away for a moment from the purely legal arguments, because this is essentially about political will, although it has to be addressed in a proper constitutional and legal framework. This is not "our" Parliament. This Parliament does not belong to the Members of this House but to the people outside. It is their Parliament and its powers are draining away. The reasons were given by my right hon. Friend the Member for Wells just now, and I put forward the arguments on the questions of competences yesterday. Those exclusive and shared competences are accumulating and have accumulated to such a critical mass that it is almost impossible to find any area of law that is not within either of those competences. We are not allowed to legislate within them.

We are neutering ourselves by putting through this treaty and by the accumulation of the other treaties. Furthermore, the Minister for Europe had an exchange with me yesterday about my analogy with the corn laws, the Reform Acts and women's votes. He said that it was ludicrous to suggest that the Bill should be subject to any comparison with those cases. I do not agree. The impact of what was done in the Reform Acts, for example, in granting greater democracy, is being undermined by the undemocratic institutional arrangements to which we are hostage in this process. We are also unwinding and taking away from ourselves a democracy that was fought for and won in those Reform Acts and, in particular, in the great battle for the Reform Act 1867.

It is quite incredible to my mind that there is so little public concern. I suspect that one reason for that is the fact that the arguments have not been properly presented and addressed in the public arena. I have made the point that I do not believe that the television and broadcast media have gone anything like far enough in explaining what is really going on; neither have any other media. The referendum issue has foundered because of the lack of a full explanation in the right forum. We can talk to ourselves in the Westminster village and in the Chamber, but, in the modern age, people who are not heard outside are not heard at all. During the passage of the Bill that became the Reform Act 1867, John Bright and others addressed meetings of 200,000 people in Birmingham and Glasgow because those people had no other means of hearing.

There is a lack of knowledge, not understanding. People's instinctive understanding is that they do not want the treaty and do want a referendum. That is the view of well over 50 per cent. of people—the figure is well into the 60s. However, it is no wonder that so few people attend these debates and that so few people bother to vote in elections. People know instinctively that their powers, which they exercise through voting, have been diminished and taken from them. Members know that when they legislate as a consequence of, or to implement, European Union regulations and decisions, they cannot change them, so why should they take an interest? The Government know perfectly well that many Bills cannot be amended, even though amendments are tabled, because of the requirements incumbent on us under sections 2 and 3 of the 1972 Act. That is why I have tabled new clause 9 on the supremacy of Parliament.

Photo of Rob Marris Rob Marris PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office

I stoutly refuse to accept the hon. Gentleman's intellectual construct that power is a zero sum game—it is not.

Photo of Bill Cash Bill Cash Conservative, Stone

The hon. Gentleman can say what he likes. I am setting out the argument as I want to present it. If people were more conscious of the effect of European legislation, they would be more likely to take part in such debates and in elections.

We need to ask whether all this matters. I believe that it matters profoundly. Let me quote Burke once more. In his famous speech on constitutional reform in 1782, he said:

"Our constitution stands on a nice equipoise with steep precipices and deep waters upon all sides of it."

That is where we are in relation to the Bill.

We should not forget that our Parliament has been the bastion of freedom for hundreds of years in Europe, and was the foundation of our successful resistance of tyranny in two world wars that saved Europe from itself. What an irony that the mother of Parliaments now faces a reverse takeover from its siblings. We face not a theological abstraction—not just some vague concept of sovereignty—but practical questions to which people want answers. However, the people simply do not yet know how far all this has gone in relation to the competences, the exclusivity, the sharing of those competences, and the power that has drained away from this place due to the fields in which we cannot legislate. The Minister has admitted by implication that very little is left, and the European Court of Justice rules supreme.

Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I have had the pleasure of reading the shadow Foreign Secretary's biography of William Pitt. I studied British history up to A-level and I continue to read about it. However, I did not study it at university because I liked it so much that I did not want to be put off by someone chopping it into little pieces and feeding it to me in lectures.

I understand that the debate between Burke and Pitt related to the defence of the Bill of Rights on the basis that it gave power to the King. Burke and Pitt divided on the challenge to the King's authority. Surely the hon. Gentleman accepts that the conclusions of the process improved this country's constitutional arrangements. Even he must accept that as the European Union has advanced since its inception and the first treaty of Rome, we have been able to do things across Europe that we never thought would be possible, such as breaking down the iron curtain and bringing people into a democratic settlement and a much more prosperous way of life. I agree with my hon. Friend Rob Marris that politics is not a zero sum game. It is something to which great value can be added through flexibility and development.

Photo of Bill Cash Bill Cash Conservative, Stone 6:45 pm, 27th February 2008

The answer to the hon. Gentleman is simply this: the kind of Europe that he describes is not the kind of Europe that I witness. Although I have, for example, been in favour of enlargement—I never said otherwise—my problem, having voted yes in 1975 and, although I have now repented, having also voted for the Single European Act, is with the European Union as it is constructed. I do not have a problem with the kind of Europe that Winston Churchill advocated in his famous speech in Zurich in 1946, saying that we should be "associated but not absorbed". I believe in an association of nation states working within a loose co-operation that enables us to form alliances, but not within a centralising, European Court of Justice-dominated, supranational arrangement.

In his diaries, de Gaulle wrote about his exchanges with Adenauer. He wrote that they agreed that they did not want their countries to be merged into a stateless institution. However, that is precisely what happened, and that is part of the problem. When de Gaulle came to this Parliament, he made a remarkable speech in which he confirmed what, to him, this country represented. He said, on 7 April 1960,

"This outstanding role in the midst of the storm"— the 1940-45 storms—

"is owed not only to your profound national qualities but also to the value of your institutions...With self-assurance, almost without being aware of it, you operate in freedom a secure, stable political system."

I think he was right. He understood what the problems were, which is why he took such a difficult position in the EEC. However, the history of de Gaulle, Adenauer and the rest is for another occasion.

Photo of Bernard Jenkin Bernard Jenkin Conservative, North Essex

I merely add that the great man's last utterance on the subject was contained in a letter to the chairman of the constituency association where my father was the parliamentary candidate. From his hospital bed, Winston had inveighed against joining the European Economic Community, but he had subsequently been persuaded to write a letter to satisfy the Whips and others who were pressing him on the subject. In his letter, he said that the only reason to apply was to find out what the terms of membership might be, not necessarily to accept those terms.

Photo of Bill Cash Bill Cash Conservative, Stone

That is very interesting. It is as well in a debate of such importance to put such matters on the record, albeit we must not stray too far from the amendment.

I believe that we have to negotiate; that is part of the essence of the process. However, I invite my right hon. and hon. Friends to recall our position on, for example, the repatriation of economic competitiveness and the social chapter, and our statements on the common agricultural and fisheries policies, the working time directive and so on, not to mention the problems that arose in the Northern Rock case from the market abuse directive. The plain fact is that if we are to deal with the questions before us and work out how to reassert our ability to legislate, we must have a sound constitutional basis on which to do so, and that is what new clause 9 offers.

With respect to new clause 8 and the Bill of Rights, I have said that Speaker Boothroyd invoked the Bill of Rights in relation to the potential ratification of the Maastricht treaty, and the courts agreed that it was not possible—because they backed down—to go into the question of ratification. They left the matter entirely to the question of legality. There is also the problem of the charter of fundamental rights and the implications of the European Court of Justice in respect of a vast area of activity that the Government themselves do not want to be brought into effect.

The bottom line is that we must use the powers contained in the judgments made in case law in McCarthys Ltd v. Smith and Garland v. British Rail Engineering and by Mr. Justice Laws, which clearly and unequivocally state that we in the House have the right to pass legislation inconsistent with that of the European Union if we do so in the correct manner. As Lord Denning said,

"If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament."

That is the basis on which I rest my case with respect to the supremacy of Parliament and new clause 9. I believe that we should adopt the new clause, because it is absolutely fundamental to the future self-government of this country and to our ability to reform, review and, where necessary, amend provisions that otherwise will be imposed on us through the Court of Justice, creating a situation in which we can no longer govern ourselves.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I would like to have heard the Minister's reply earlier to my hon. and learned Friend Mr. Grieve when he moved the amendment, as it would have added to the vitality of this debate.

When asked what history was, Santander said, "First you have to invent it." In a sense, the House reinvents its perception of history again and again. I stand here after 29 years, having been present at all the debates on the development, as we put it, of what we now call the European Union, with the exception of the debate on the originating Act. I came to the House with certain assumptions and with the assumptions of my electorate. That is why the amendments are of critical importance: it must be ascertained where they stand. I am here only by their writ and only as a manifestation of their sovereignty. That is why the concept of the sovereignty of Parliament is not just a nightmare. It is part of the development of our constitution, and therefore the definition of what we understand by liberty. That is why this is not a debate to be disposed of in seven minutes, an hour and a half or two and a half hours in this phoney Committee construct. It is something that touches the rights of the people of this country to determine the laws under which they live.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

No; I simply do not have the time. The hon. Gentleman should take it up with his party's Whip. It is the mandate for which the hon. Gentleman voted that constricted the debates to an hour and a half to two and a half hours. That is an outrage, as he well knows. Our difficulty is in reconciling great principles to a new constitutional order. I certainly did not understand that when I first came to the House in 1979. On Second Reading—that, too, was a debate in which many of us could not contribute—Rev. Ian Paisley said that we had had many assurances, but that it did not mean very much.

In fact, the Bill is only a little step; we have had pillar arrangements, and we were even given assurances, which I know were given in good faith, about the Single European Act. When people such as me expressed fears about what the measures meant for the people whom I am sent to represent, we were always given the reassurance, "No, no. That's a nightmare scenario; it's a fanciful interpretation", but when I look at the Bill, I see that we are a long way off from where we were in 1972 and subsequent years. [Interruption.] I hear mumbling; we are stimulating a debate at last. We are now hearing the devotion to a new constitutional order, without ever having invited the British people directly to express what their understanding is, and without asking them whether the measures are appropriate.

The House drifts along as we are hollowed out. That is what is happening under the aegis of the Bill. The House is now a hollow, echoing Chamber. My hon. and learned Friend the Member for Beaconsfield raised a question under amendment No. 13. It seemed reasonable and rational, and met the observations of everyone in the Chamber. If the Government's understanding and my hon. and learned Friend's understanding are the same, could we not accept the amendment?

I next come to an issue on which there must be a difference between people such as me and the Government: the sovereignty of Parliament and the very reason why we stand here in the Chamber. Who makes the laws and who judges on them? Our constitutional integrity requires that ultimately we be the judge on the laws that affect our people, who sent us here. I understood that that is who is judge, under the constitution and the history of liberty in this country. Protection of the sovereignty provisions is protection of the things that are central to the existence of this place. I therefore agree with, and will vote for, all the amendments that are pressed to a Division that try to protect the integrity of those who sent me here to represent them.

Photo of Jim Murphy Jim Murphy Minister of State (Europe)

I am delighted to have the opportunity to respond to this evening's debate at the end of six hours of deliberation. The fact that the debate was six hours long reflects the wish, set out in today's amendment to the programme order, of both Labour and Conservative Front Benchers. I share the frustration felt about the fact that we will not debate the other groups of amendments, particularly those on the EU competence for animal welfare in outer space, and that we will not have the quasi-theological debate on the European definitions of sentient beings. Perhaps we can return to those issues another time.

Photo of Martin Horwood Martin Horwood Shadow Minister (Environment, Food and Rural Affairs)

I am interested to hear the Minister make light of the issue. I share the frustration felt by many Members present about the fact that we have not had the opportunity to discuss important amendments covering issues such as animal welfare and space, public health and the environment. Does he agree that the impact of the amendments—if we imagine that the treaty would be left intact if they were passed—would be not simply to preserve the status quo ante, but to frustrate, truncate and possibly even reverse the progress of European policy in some important areas?

Photo of Jim Murphy Jim Murphy Minister of State (Europe)

I know that the hon. Gentleman came along to participate in debate on amendment No. 151, but he has had the great opportunity of listening to the very informative assessment made by David Howarth of the relationship between domestic law, the sovereignty of Parliament and the European Union. Those are important issues, and we will continue to discuss them in the Chamber.

Let me turn to the specifics of the amendments before us. New clause 5, which was tabled by Mr. Heathcoat-Amory, is about a proposal relating to draft EU legislation. The Government already provide the European Scrutiny Committee with an explanatory memorandum that specifically addresses whether the Government consider a proposal to have met the principle of subsidiarity.

The Government are committed to effective and improved scrutiny, but I accept the tone in which the right hon. Gentleman moved new clause 5 and the encouragement from my right hon. Friend Ms Hewitt, and I will bring to the attention of the Leader of the House the points that the right hon. Gentleman fairly made about the way in which we could improve the scrutiny of proposals from the Commission and elsewhere, and see whether that can be incorporated in the wide-ranging review being undertaken by the Leader of the House and the Deputy Leader of the House. It is important that we do that.

Amendment No. 13 is unnecessary. It is the established view of Governments of both parties that it is a bad principle to have redundant provisions in legislation. I shall set out why that is the case. My hon. Friend Rob Marris alluded yesterday to the fact that in EU treaties "shall" does not always impose an obligation to take action. It can also set out powers. The meaning depends on the context. In this case the relevant provisions confer rights and powers on national Parliaments. The language used is therefore simply descriptive.

Mr. Grieve referred to the French text. My Dutch is better than my French, and that text as well is descriptive when it states "De nationale parlementen dragen". That is clear. It is descriptive text. That is the wording that has been accepted across the entire European Union. Other language versions, such as German, use the present tense where the English text would use "shall". The English language version is clearly and intentionally non-binding.

"Shall" is retained in the protocol, which states that the European Parliament and national Parliaments shall draw up arrangements for co-operation. That is not a commitment to co-operate. If it is in any way an obligation, it is an obligation to act jointly in drawing up arrangements. National Parliaments are not required to participate in such arrangements. If the hon. and learned Gentleman seeks to intervene, I am happy to give way, although he will have a couple of minutes towards the end.

The EU legal experts group includes representatives from all member states and all European institutions and reflects the views of others, including the Dutch Government and the French Government, who have confirmed separately that no obligation is intended. In a debate on ratification—

Photo of Peter Bone Peter Bone Conservative, Wellingborough 7:00 pm, 27th February 2008

Is the Minister contending that the translation is incorrect and that a different word should be used?

Photo of Jim Murphy Jim Murphy Minister of State (Europe)

I am contending that no obligation is intended. As I said, the legal experts group has come to that conclusion. Also, in the summing up at the General Affairs Council towards the end of last year, the presidency made it clear, and it was agreed by all member states, that there was no compulsion.

In a letter to the Foreign Secretary on 16 October the Minister of State and Foreign Affairs of Portugal, which fulfilled the role of presidency, stated that

"the Legal Experts reached the conclusion, by consensus, that this article imposes no obligation on the national Parliaments and it is purely declaratory in nature."

The House of Lords European Union Committee commented on the revised text in its report of 1 November 2007, which stated:

"While we accepted these reassurances"— that the treaty was not intended to impose obligations on national Parliaments —

"we considered it necessary to ensure that the phraseology was correct while the interests of national parliaments were appropriately presented in the text. . . We were accordingly pleased to have heard that the word 'shall' has been eliminated from the English text."

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

There appears to be a contradiction in the Minister's position. Earlier, he told us that the context meant that "shall" could not under any circumstances be mandatory, yet a moment later he told us that the House of Lords Committee was reassured by the removal of that word. There is a certain lack of clarity on where the Government stand.

Photo of Jim Murphy Jim Murphy Minister of State (Europe)

That is not the case at all. The European Scrutiny Committee, ably led by my hon. Friend Michael Connarty, raised a specific concern and I undertook to address it. I sent myself to the Netherlands and France to negotiate with the Dutch and French Europe Ministers and got the agreement that was reflected in the outcome of the General Affairs Council, at which it was agreed unanimously that that would be the case. The House of Lords Committee then responded to that change and I have read that issue into the record.

Photo of Jim Murphy Jim Murphy Minister of State (Europe)

Unfortunately, I cannot.

I turn to new clause 9. Mr. Cash has asserted that the UK's membership of the EU has fundamentally diminished parliamentary sovereignty. That is a striking claim. I disagree with the hon. Gentleman, but I do not disrespect him. He has sought to make his case in an entirely cogent and logical manner. As David Howarth is well aware, the classic definition of sovereignty is given by Dicey in his "Introduction to the Study of the Law of the Constitution":

"The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that 'Parliament' has 'the right to make or unmake any law whatever".

Parliament exercised its sovereignty in passing the European Communities Act 1972. By doing so, Parliament—not the EU, not the European Court of Justice, but Parliament—decided to accept the obligations of EU membership for the UK. Parliament has continued to exercise its sovereignty in passing the legislation necessary to implement every EU amending treaty since the Single European Act 1986.

Let me be clear, as I was yesterday—the UK Parliament is and remains sovereign. That is not affected one millimetre or one inch by the Lisbon treaty. As our own courts have ruled,

"the fundamental legal basis of the UK's relationship with the EU rests with the domestic not the European legal powers."

That came from Lord Justice Laws.

In concluding, let me be clear that the primacy of EU law has existed since before we joined the EU, and it remains today. In his earlier contributions, the hon. Member for Stone described his amendments as a "get out of jail free" card. They are not that, but a "get out of the EU" card that is anything but free. It would be a danger to our national interests, undermine our economy and put in jeopardy the many hundreds of thousands of jobs on which our constituents' welfare and livelihoods and our relationship with the EU depend. On that basis, I encourage and invite my hon. Friends to oppose the amendments.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I echo the Minister in regretting that we have not had the chance to consider the competences and climate change amendments. It is clear that this debate has not been time wasted; there has been no filibustering and there have been important matters to be discussed and debated. That shows how woefully unsatisfactory is the Government's timetable for the consideration of these matters. The Minister said that he hoped that there might be some opportunity a little later to consider the matter, but he knows that there will be no such opportunity. That rather diminished in my eyes the trust that I placed in anything that he said thereafter.

I come to what the Minister said about the substance of these matters. He would not even listen to the carefully worded thoughts of Ms Hewitt when she commended what my right hon. Friend Mr. Heathcoat-Amory had put forward in his new clause 5. We shall return to this point next week, but it seems to me that it would be open to the Government to accept it in the Bill rather than simply saying that the matter will be passed to the Leader of the House for consideration in respect of changing the House's procedures. That, if I may say so, smacks of mañana.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I do not have time to give way, I am afraid.

If the Government wish to be constructive, here is an opportunity for them, between now and when we may well vote on this next week, to indicate that they accept the amendment.

I noted that what my hon. Friend Mr. Cash said about new clause 8 had certain support from those on the Liberal Democrat Benches.

Amendment No. 13 would do nothing to damage the Government's position. It would provide the reassurance that the lack of clarity in the original text does not provide about this House not being mandated to do anything. For those reasons alone, it is beyond my comprehension that the Government will not accept an amendment that is slight, innocuous—as the Minister himself seems to acknowledge—and would go a long way towards meeting some of the criticisms that have been made of the text of the treaty. That text is poorly worded; in places, it is not even proper English. I will point out to the Minister on another occasion just how sloppily the drafting is that has taken place.

I urge the Minister to accept amendment No. 13. If he will not, as he seems to have indicated, I am afraid that I will put it to the vote.

It being two and a half hours after the commencement of proceedings, the Second Deputy Chairman of Ways and Means put forthwith the Question already proposed from the Chair, pursuant to Orders [28 January and this day].

The Committee divided: Ayes 156, Noes 350.

Division number 104

See full list of votes (From The Public Whip)

Question accordingly negatived.

The Chairman then put the Question necessary to dispose of the business to be concluded at that hour.

Motion made, and Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 342, Noes 156.

Division number 105

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Clause 2 ordered to stand part of the Bill.

To report progress and ask leave to sit again.— [Mr. Blizzard]

Committee report progress; to sit again tomorrow.